1981 P Cr (PLP)

The facts of the case are that on 13th August, 1980 Muhammad Hanif, complainant made a report at the Police Station, Mirpur to the effect that 4/5 years prior to the incident, he abducted the wife of Muhammad Yaqub, accused-petitioner. The dispute was settled with the help of 'Biradari' and the parties compromised but despite that, Muhammad Yaqub and Javid nourished grouse against the com plainant and wanted to take revenge of their honour. On 13th August, 1980, at 11-30 a. m. the complainant alongwith Mahmood, his cousin went to Relex Cinema, Mirpur. On arrival at the premises of the Cinema, he learnt that the accused-petitioners alongwith three other persons were looking for him. The complainant alongwith Mahmood immediately left for Sector C-4, in a Motor-Rickshaw. When he reached near `Purani Hattian', the accused party, in two rickshaws', chased him. They stopped the Rickshaw of the complainant. Muhammad Yaqub and Suleman Shah were armed with daggers and Javid with a revolver. The accused petitioners inflicted injuries on the legs of the complainant with their daggers while the other three accused persons held his legs. Muhammad Yaqub was apprehended on 15thAugust, 1980 and Suleman Shah on 30th August 1980. They were sent in judicial Lock-up. The prosecution has not submitted the challan in the trial Court so far. It is stated that the recovery has been made and the investigation is complete but the Police report shows that the investigation is yet to be completed as the question relating to ownership of the revolver has to be enquired into and also that the statement of one of the witnesses has yet to be recorded. The trial Court refused bail on the primary consideration of gravity of offence as well as in consideration of the fact that the complainant was still under treatment in the hospital. The learned counsel for the petitioners pointed out that the accused -petitioners were entitled to bail in view of the stature of the injuries and delay in completion of the investigation. He also pointed out that the other co-accused were allowed bail which lends support to the case of the petitioners for the grant of concession of their release. Mr. Rafique Mahmood Khan, the learned Additional Advocate-General contested the contention of the learned counsel for the petitioners on the two scores:- (1) That the trial Court bas properly exercised its jurisdiction and there is no reason to interfere in the same. He cited 1970 S C M R 143 and P L D 1971 Lah. 147 (?) (2) that the accused-petitioners were responsible for commission of heinous offence and, as such, could not claim bail as a matter of right. Mr. S. Z. Chaudhary, counsel appearing for the complainant argued that the attack made by the accused-petitioners was pre-planned. They tried to kill the complainant. The weapons used in the offence are daggers and revolvers, the injuries are grievous and that being so, the circumstances of the case do not suggest that bail may be allowed to the accused peti tioners in routine. He cited 1980 S C M. R 131; 1977 P Cr. L J 325 and 1978 P Cr. L J 286 (?) A perusal of record shows that the Injuries Nos. 1 to 6 are shown to have been caused on the thigh and Injuries Nos. 7 and 8 on the index finger of the complainant. The complainant was medically examined on 13th August. 1980 and the result was given on the 21st of September, 1980. The petitioners are facing charge of attempt to murder. During the arguments the learned counsel for the accused-petitioners completely denied the involvement of the petitioners in the commission of offence and submitted that the case was concocted out of enmity between the petitioners and the complainant. At this stage of the investigation, it would be premature to make any observation with regard to the background of the incident as well as motives suggested by the parties against each other. The primary argument addressed by the prosecution is that the bail may not be allowed in view of the allegation of gravity of offence. In any view, mere attribution of allegation relating to gravity of offence, is not only the consideration for refusal of bail. While considering the question of bail, Court has to see the nature of allegation, the proposed evidence to be led by the prosecution, conduct of the accused persons and in case of ultimate conviction, the quantum of sentence. The delay in conclusion of trial was considered as one of the grounds for grant of bail but in recent development of law, delay is also given former importance for consideration of question of bail. In Azad Jammu & Kashmir, the latest trend of the Court is to allow bail even in non-baiLahle cases except murder and in case of public policy, 1n Sardar Muhammad Ashraf Khan and others v. State (P L D 1978 Azad J & K 8) Mr. Justice Kh. Muhammad Yusuf Saraf, C. J. as he then was, traced history of case-law in bail matters and concluded as under:- Grant of bail in all cases except murder is a rule anti refusal has been exception unless, of course, the case is one of the public policy." In Ch. Muhammad Latif v. The State (P L D 1978 S C (AJ&K) 83) it was held as under:-- "It is elementary that grant of bail specially iii offences where the penalty is not death or transportation for life, is a rule and refusal an exception and the mere amount involved is not by itself sufficient to refuse bail." The case of Sardar Muhammad Ashraf Khan was one under the Azad Jammu& Kashmir Emergency Powers Act, 1958. The case was. register ed under sections 12/13 of the Emergency Powers Act. The offence was cognizable and non-baiLahle. In case of Ch. Muhammad Latif, the accused was apprehended under sections 406, 409, 419; 420, 467, 468, 471, A.P.C. read with section 5(1)(c) of the Prevention of Corruption Act. The accused was refused bail by the High Court but his prayer yeas granted in the Supreme Court in view of the aforesaid observations. Thus it is evident that, of course, bail is normally not refused in a case short of murder or where public policy is involved. Applying the aforesaid principle of law to this case, I am satisfied to hold that the accused petitioners are entitled to bail in view of the circumstances arising out of the investigation made by the police. The cases cited by the learned Counsel for the complainant and the learned Additional Advocate-General are not applicable to the present case. It is well settled that in criminal matters, each case is to be decided on its own facts and merits. Therefore, the petition is accepted, the accused shall be released on bail provided they furnish bail bond in the sum of Rs. 25,000 each with their personal bonds in the same amount, to the satisfaction of any Magistrate 1st Class, Mirpur. Bail allowed,