1992 P Cr (PLP)

Ch. Muhammad Taj for Petitioner. Ch. Muhammad Azam Khan, Addl. A: G. for the State. The reference has been made by the District Criminal Court, Kotli, on account of difference of opinion between its members. It arises out of an application for release of the accused-petitioner on bail. The petitioner was arrested on the charge of Haraabah as contemplated under section 17(3) of Offences Against Property (Enforcement of Hudood) Act, read with sections 341 and 34 of the Penal Code. The application was moved on August 29, 1991 and it was disposed of in the manner of the present reference on September 17, 1991. The learned Sessions Judge, a member of the District Criminal Court, allowed bail while the learned District Qazi, the other member declined to agree.

2. The alleged incident took place on August 9, 1991 at midnight (12-30) on Mirpur, Kotli road at Chowk Shaheedi in a jungle. According to the prosecution version, Bus No.8879/AJKB of Rakhial Transport Service carrying 27 passengers was going to Kotli. Aftab Ahmad was its driver. It was raining when it reached a place called Narian near Maholi, where a Suzuki was found blocking the road. 6-7 persons, with covered faces, directed the driver to stop the bus. The passengers were informed that the bus was stopped by the dacoits, as such they should take care of themselves. One of the dacoits, with covered face and carrying a Kalashnikov, approached the bus and directed the driver and Muhammad Ishaque, conductor, alongwith 4-5 passengers occupying the second seat, to deboard the bus. A sum of Rs.1,600 was extorted from the driver, in addition to Rs.5,000 from Muhammad Ishaque, conductor, by two culprits who carried revolvers. Cash was snatched from other passengers also. The total amount looted by the culprits was Rs.10,

450. The police force of Police Post Nar arrived on the scene and recorded the statement of Aftab Ahmad, driver. The vehicle used by the culprits in the alleged offence was identified as a whitish cream colour Suzuki with a black plastic cover, embroided in flowers but without a number plate.

3. The police followed the direction of the culprits and on their reaching Darman Darliah Gujran, they found the vehicle deserted and took it in their custody. An empty of 7.62 Kalashnikov was recovered from the site of incident in presence of Aftab Ahmad and Muhammad Ishaque. Muhammad Rashid, one of the culprits, was apprehended and the alleged looted amount in the sum of Rs.1,000 was recovered from him. The present petitioner was arrested on August

21. He remained with the police for interrogation till August 31, whereafter he was sent to the judicial lock-up. The alleged looted amount in the sum of Rs.1,000 was recovered from the petitioner.

4. Ch. Muhammad Taj, the learned counsel for defence supported the finding of the learned Sessions Judge and contended that the accused was not named in the first information report as he was not identified at the time of the incident. The allegation of his absconsion was frivolous as he remained present in the village till the time of his arrest. The alleged identification parade, it was argued, due to delay, was of no legal value. The learned Additional Advocate-?General controverted the aforesaid points and opposed the release of the accused. It was emphasised that there was sufficient evidence which connected the accused with the alleged offence. Reference was made to the recovery of the vehicle used in the incident and identification of the accused by Muhammad Zaffar, a school teacher and a shop keeper in Nar Bazar, and Amjad Hussain, Constable Police Post Nar.

5. The rule applicable to grant or refusal of bail in case of non-bailable offences, is covered by the provisions of section 497, Criminal Procedure Code. In case of non-bailable offence, when there is no evidence constituting reasonable grounds to connect the accused with the alleged offence, it is permissible to release the accused on bail. Conversely, when there exist reasonable grounds to connect the accused with a non-bailable offence, the accused cannot claim bail as a matter of right. Restrictions on bail are enforceable in case of an offence punishable with sentence of death or life imprisonment. In present case, the details of the incident, prima facie, bring the whole matter within the purview of section 17(3) of Offence Against Property (Enforcement of Hudood) Act. The alleged incident took place on main motor road. The victims of the incident were innocent passengers of the bus. The manner of the alleged incident, prima facie, brings it within the purview of a heinous offence. It obviously threatens the road safety and journey through Azad Kashmir. Therefore, the culprits of such an incident are not entitled to a lenient view in the matter of their release on bail.

6. It is correct that Muhammad Rashid, one of the culprits apprehended by the police, was released on bail. The only evidence against that accused was the recovery of a part of the alleged looted cash. The case of the accused petitioner stands on a different footing. The investigating agency recovered the vehicle used in the incident. It was admitted at the bar by the learned defence counsel that the vehicle belonged to the petitioner. It tallied and resembled the description of the vehicle allegedly used by the culprits in the incident. At the time of its recovery, it was without a number plate. The recovery of the vehicle in the condition described by the investigating agency was not disputed by the defence. It was, thus, for the defence to explain as to how and why the vehicle was used in the alleged incident, without the knowledge and involvement of the accused.

7. Muhammad Zaffar, a school teacher of Nar, stated that he helped his father in running his shop. His father was Petrolium and oil vendor in Nar Bazar. On the night of the incident, the witness was present in the shop at 11-30 p.m. when the accused purchased 10 litre petrol and was seen driving the vehicle in question. He was accompanied by another person. Amjad Hussain, Constable No.264, made an identical statement immediately after the incident. This witness knew the accused personally and saw him driving the vehicle and passing through Nar Bazar at 11-30 p.m. The aforesaid evidence, accompanied by other surrounding circumstances, prima facie, support the finding of the learned District Qazi. Therefore, in presence of evidence listed above, the accused is not found eligible to release on bail. The finding of the learned District Qazi is, therefore, affirmed. The bail application is rejected. The reference is answered accordingly. N.H.Q./122/Sh.CA.???????????????????????????????????????????????????????????????????????????????????????? Bail refused.