2016 PLP 1469 (YLR)

M. TABASSUM AFTAB ALVI, J.

The supra titled revision petition has been directed against the impugned order dated 27th January, 2016, passed by Anti-Terrorism Court, Muzaffarabad, through which bail application of accused-petitioners was turned down.

2. The precise facts forming background of the instant revision petition are that complainant, Syed Charagh Hussain Shah, IHC Chowki Police Kumikote, sent an epistle to S.H.O. Police Station Garhi-Dopatta, stating therein that he along with Javaid Ahmad, Mumtaz Abbasi and Abdul Waheed, Constables, was searching accused-persons in village Jhandgaran-Saleh-Galli pertaining to FIR No.105/2015, registered under Sections 10, 11, 19, ZA and 14, EHA, on 16.10.2015. Meanwhile, he received information at about 8:00,a.m that in village Potha-Saleh-Galli certain houses of Haji Abdul Rasheed and others were burnt. On receiving information, he along with the aforesaid constables arrived at spot, where he was told that accused-persons Raja Shahzad Khan, Aamir, Qasim, Taimoor and other 8/9 anonymous persons, armed with lethal weapons, set on fire the houses and by committing theft took away domestic animals of Muhammad Rasheed, Najeeb, Muhammad Saeed, Abid Hussain and Sabir Hussain etcetera. On receiving the aforesaid report, an FIR No.106/2015 was registered at Police Station Garhi Dopatta at 10:30,a.m in offences under Sections 436, 337/H(2), 427, 147, 148, 149, 452, A.P.C, 14,EHA and 6-D, ATA, 2014, on 16.10.2015.

3. After registration of the case, accused-petitioners were arrested on 18.10.2015, who moved bail application before Anti Terrorism Court, Muzaffarabad, on 05.11.2015 , which after hearing was dismissed vide impugned order dated 27.01.2016; hence, the instant revision petition.

4. Mr. Abdul Hameed Khan Shahid, the learned Counsel for accused strenuously argued that petitioners were not nominated in FIR, which important aspect of the case was not considered by the trial Court. The learned Counsel pointed out that co-accused, Qasim, who was even nominated in FIR, was released on bail by the Court below; therefore, rule of consistency demands that the accused-petitioners may also be extended concession of bail. He further argued that petitioners, who are teenagers, were not present on spot at the time of commission of alleged offences. The learned Counsel maintained that petitioners are behind bars for the last four months and investigation of the case has been completed; therefore, they are no more required for further investigation. He also argued that regarding hardened, desperate and dangerous criminals, nothing was brought on record by the prosecution against accused-petitioners. The learned Counsel pressed into service that petitioner No.1 got registered an FIR No.105/2015 against accused Wajid son of Najeeb Awan, under Sections 10, 11 ,19, ZA and 14, EHA in respect of kidnapping etc. of his sister on 16.10.2015. He strenuously voiced that FIR No.106 was registered with mala fide intention to counter FIR No.105/2015 supra. The learned counsel in support of his contentions referred to and relied upon the following case law:--

1. Farrukh v. The State and another (2007 SCR 79)

2. Muhammad Riaz v. Muhammad Sabir and 12 others (2011 SCR 126).

3. Raja Muhammad Farid Khan v. Raja Sheraz and 2 others (2015 SCR 465).

5. On the contrary, Sardar Karamdad Khan, the learned counsel for complainant, submitted that accused petitioners are hardened, desperate and dangerous criminals, who were involved in burning 07/08 houses; hence, they are not entitled to concession of bail. The learned counsel maintained that although challan has been filed before the trial Court, however, petitioners are highly dangerous and influential persons; therefore, in case of their release on bail, it will not be possible for prosecution to produce evidence in the trial Court. He further emphasized that alleged offences are non-bailable, hence, craved for dismissal of revision petition.

6. Ch. Tariq Alam, the learned Assistant Advocate General, owned arguments of the learned Counsel for complainant and added that still 10 to 15 accused-persons are absconders; therefore, it would be in the fitness of things to dismiss the revision petition.

7. After hearing the learned Advocates for the parties, I have examined the record. The accused-petitioners in the instant case seek post arrest bail. It is, now, well settled principle of law governing the bail matters that at bail stage a bird eye view of the record has to be taken into consideration and deeper appreciation of evidence is neither permissible nor desirable, but at the same time the Courts are not expected to pass a bail order in vacuum. The aforesaid view is supported from a case reported as Muhammad Arif v. Babar and another 2015 PCr.LJ 134, wherein the following observation was made by the apex Court:-- "It is cardinal principle of law that while disposing of a bail application, the Court can form the opinion on the basis of material, i.e., allegation leveled in the FIR statement under Section 161, Cr.P.C. As the deeper appreciation of evidence at bail stage is not warranted and only a bird eye view has to be taken."

8. It would be worthwhile to observe here that petitioners are not nominated in FIR No.106/2015 dated 16.10.2015, which creates doubt in the prosecution story to the extent of present petitioners and further inquiry is required to prove their guilt. Moreover, it is well settled principle of criminal jurisprudence that in case of non-mentioning names of accused in FIR, the Courts may extend concession of bail to such like accused. The aforesaid view finds support from a case reported as Imam Bux alias Amoo and another v. State PLD 2012 Sindh 212, wherein it was opined as under:-- "It is also a fact that in the FIR, no features or descriptions of the applicants are mentioned. It is also a fact that in the memo of Wardhat, footprints of three persons are shown while according to FIR, six persons were standing on the road. During this encounter, police fired 140 rounds and no accused person was injured. There is also 17 hours gap between the incident and the FIR but even then names of the applicants were not mentioned but they were implicated in the statements recorded under Section 161,Cr.P.C. which creates doubts to the prosecution case to the extent of present applicants and further inquiry is required to prove their guilt." The aforesaid view was reiterated in case titled Azizullah Niazi v. The State (2012 YLR (Sindh) 1071), in which it was observed:-- "Primarily for the reason that the names of three males, who were subsequently stated to be present in the house, were not stated in the FIR and no reason has been brought as to why these names were not disclosed in the first place. This creates a doubt about the veracity of the statement of the witnesses and it is settled law that benefit of any doubt even at bail stage should be given to a person being tried. Consequently, this application is allowed and the applicant is ordered to be admitted to bail upon his exercising P.R. in the sum of Rs.3,00,000/- with one surety in the like amount to the satisfaction of the trial Court."

9. The argument of the learned Counsel for accused-petitioners regarding rule of consistency is also well founded. A perusal of record reveals that co-accused, Qasim, who was nominated in FIR, was granted bail by the learned trial Court simply on the ground that he was behind the bars for the last 03 months and no recovery was made from him. The trial Court refused bail to the accused-petitioners on the ground that a cow and lighter were recovered from accused Shafaqat, whereas a cow and calf were recovered from accused Anser. Suffice it to observe here that on the basis of the aforesaid recoveries, the matter is yet to be evaluated by the Trial Court after recording evidence. Therefore, when a nominated accused was granted bail, the rule of consistency demands that the accused- petitioners may also be extended concession of bail. The apex Court on the point of rule of consistency opined in a case titled Farrukh v. The State and another as under:-- "It is pertinent to note that it also could not be ignored at the same time that Javed inflicted injuries on the head which is most vital part of the body, whereas the appellants inflicted injuries on the other parts of the body, which are not as vital as head. The concession of bail has been extended to Javed, therefore, the rule of consistency demands that the concession of bail may also be extended to the appellants."

10. The learned State Counsel as well as the learned Counsel for complainant could not cite anything from police record showing that the accused-petitioners are hardened, desperate dangerous criminals and connected with the alleged offences.

11. Now, I advert to another argument of the learned Counsel for complainant that the offences mentioned in FIR are non-bailable. The offences under Sections 427, 147, 148 and 149, A.P.C. are bailable; however, the offence under Section 436, A.P.C. is non-bailable and punishment of the same is minimum 03 years and maximum 10 years. Likewise, the offence under Section 452, A.P.C. is non-bailable, however, punishment of the same is 07 years. The punishment of offence under Section 6(d), ATA is minimum 10 years and maximum is life imprisonment , with fine. However, it is pertinent to observe here that in non-bailable offences, it is not an absolute rule that the bail cannot be granted to an accused and if from the tentative assessment of record sufficient grounds for further inquiry into his guilt appear then the Court may extend concession of bail to an accused. The above view is fortified from a case reported as Liaquat Hussain v. The State and another (2015 PCr.LJ 1812), wherein the Hon'ble Supreme Court held as under:-- "It is not absolute rule that the bail in non-bailable offences cannot be granted to an accused. If from the tentative assessment of the material brought on record, it appears that there are reasonable grounds for believing that the accused has committed a non- bailable offence but the sufficient grounds for further inquiry into his guilt appear then the Court may release such accused on bail under Section 497, Cr.P.C. In the case falling under the prohibitory clause, the Court after tentative assessment of the evidence if comes to the conclusion that prima-facie some doubts are arising into the guilt of an accused, the Court is empowered to exercise its discretion in favour of the accused and may release him on bail. It is settled principle of law that the doubt if any arising in a case must be extended in favour of the accused even at bail stage."

12. It is an admitted position that the accused-petitioner are not nominated in FIR, the challan has been submitted before the competent Court of jurisdiction and they are no more required for further investigation. Therefore, it is celebrated principle of law governing the bail matters that bail cannot be withheld as punishment, if otherwise accused is entitled for the same and nobody should remain in criminal prison for indefinite period. The aforementioned view finds support from case titled Muhammad Arif v. Babar and another 2015 PCr.LJ 134 wherein it was opined as under:-- "It is settled principle of law that bail cannot be withheld as punishment if otherwise the accused is entitled for the same. Normally this Court always reluctant to interfere with the discretion exercised by the trial Court unless it is found that the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice. Nobody should remain in jail for indefinite period. Even otherwise, the bail is not acquittal; it is only a change of custody."

13. The crux of above discussion is that by accepting the instant petition, the accused-petitioners are granted bail in sum of Rs.2,00,000/- with two sureties each in like amount to the satisfaction of the trial Court. They shall be set free forthwith, if not required in any other case or offence. It is clarified that in case the concession of bail is misused by the petitioners in any manner, the learned trial Court will be at liberty to take action against them and their sureties as per law. The above findings are, however, tentative in nature and shall not prejudice the case of the parties. HBT/12/HC(AJ&K) Bail granted.