2019 P Cr (PLP)

GHULAM MUSTAFA MUGHAL, J.

The captioned appeal has been directed against the order dated 20.12.2017, passed by the Shariat Appellate Bench of the High Court in Revision Petition No.75 of 2017.

2. The facts forming the background of the captioned appeal are that upon a written application filed by the complainant/appellant, herein, a case vide FIR No.61/2016, in the offences under sections 302, 324, 147, 148, 149, 337-F(1 and 2), 337-D, A.P.C. and 15(2)AA, was registered against the accused/respondent, herein, and co-accused at Police Station Sehnsa on 06.06.2016. It was alleged that the accused while sharing the common intention in order to achieve the common object, while arming themselves, launched an attacked upon the complainant/appellant, herein, his brother, father and mother. It was stated that the brother of the complainant namely Fezan was attacked by Saleem and Asif who fired one after the other with pistol, whereas, Abu Tarab, accused, fired with .30 bore pistol directly on the father of the complainant which hit him at his throat. Another accused namely Saqib also filed with pistol upon the mother of the accused which hit her on her foot. The injured Fezan was taken to the Hospital but he succumbed to the injuries and died. The accused/respondent, herein, filed application for pre-arrest bail before the Additional District Court of Criminal Jurisdiction Sehnsa on 30.01.2017 which after hearing the parties was rejected vide order dated 09.03.2017. Thereafter the accused were apprehended by the police. After arrest, the accused moved application for port-arrest bail before the Additional District Court of Criminal Jurisdiction Sehnsa on 25.03.2017. The learned trial Court after necessary proceedings rejected the bail application filed by the accused vide order dated 17.04.2017. Feeling aggrieved, the accused/respondent, herein, filed revision petition before the Shariat Court on 24.04.2017 which also met the same fate and was dismissed vide order dated 24.05.2017. Thereafter, the accused/respondent, herein, filed second bail application before the Additional District Court of Criminal Jurisdiction Kotli on 24.07.2017 which was rejected vide order dated 05 08.2017. The order passed by the Additional District Court of Criminal Jurisdiction Sehnsa dated 05.08.2017 was challenged before the Shariat Appellate Bench of the High Court by way of Revision Petition No.75 of 2017. The learned Shariat Appellate Bench of the High Court through the impugned order/judgment dated 29.12.2017 has accepted the revision petition.

3. Mr. Abdul Aziz Ratalvi, the learned Advocate appearing for the appellant argued with vehemence that the accused after pre-planning and sharing common intention launched attack upon the complainant, his brother and father and a specific role of injuring the mother of the complainant is attributed to the accused/respondent, herein. He added that in the first round of litigation, the bail application filed by the accused/respondent, herein, was rejected by the trial Court and the order was affirmed by the learned Shariat Court while observing that the accused is prima facie linked with the Commission of offence. The learned Advocate further argued that the second bail application was rightly rejected by the learned trial Court but the learned Shariat Appellate Bench of the High Court without taking into consideration the earlier order has released the accused on bail through the impugned judgment. The learned Advocate further argued that at bail stage merits of the case cannot be discussed rather tentative assessment of the material collected by the investigating agency is to be considered. He added that the learned Shariat Appellate Bench of the High Court earlier rejected the revision petition filed by the accused and no new circumstances were available for changing the view and releasing the accused on bail. The learned Advocate further argued that the Shariat Appellate Bench of the High Court has not exercised its discretion in a judicious manner rather has exercised the same in arbitrarily.

4. Conversely, Raja Fiaz Haider Nawabi, the learned Advocate appearing for the accused/respondent, herein, contended that in the final challan, the investigating officer has observed that the allegation against the accused/respondent, herein, has not been proved and no pistol has been recovered from him. The learned Advocate further argued that while deciding the bail application in the earlier round of litigation, this opinion was not available on the record. He submitted that though the opinion of the investigating officer is not binding upon the Court but the same can be taken into consideration for deciding the bail application. The learned Advocate further submitted that after evaluating the final challan, the learned Shariat Appellate Bench of the High Court has released the accused on bail and has rightly exercised its discretion which hardly require interference. 6(sic.) We have heard the learned Advocates for the parties and have gone through the record of the case. We have no quarrel with the proposition that while deciding the bail application, deep appreciation of evidence is not warranted, however., the Court cannot decide the bail application in vacuum and can take into consideration the prosecution evidence, the defence plea as well as opinion of the investigating officer. After making tentative assessment, if the Court is of the opinion that there are circumstances on the basis of which the accused can be released on bail then the court should not hesitate to grant the bail because curtailment of liberty of a subject is not the policy of law. Moreover, bail cannot be held punishment and if ultimately the guilt of the accused is proved, he can be taken to the task. On the other hand, if he is ultimately acquitted then consensus is that there would be no compensation for curtailment of his liberty. In the present case, in the earlier round of litigation, the question of recovery of pistol allegedly used in the commission of offence was not before the Court. Similarly, the tentative opinion of the investigating officer was also not there, hence, extending the benefit of doubt at bail stage to the accused in the circumstances of this case is neither arbitrary nor illegal until and unless it is shown that the learned Shariat Appellate Bench of the High Court has exercised its discretion in an arbitrary and perverse manner, the order cannot be interfered with. The upshot of the above discussion is that finding no force in this appeal, the same is hereby dismissed. SA/11/SC(AJ&K) Appeal dismissed.