2009 P Cr (PLP)

This petition has been directed against the order dated 3-4-2009 passed by Chief Court, Northern Areas whereby the petitioners nominated accused in the cases F.I.R. No.15 of 2008 and 16 of 2008 and 52 of 2007 registered under-section 302/34, P.P.C. read with 13, Arms Ordinance, 1965 at Police Station, Darel were refused bail. The brief facts as contained in the F.I.Rs. are that at about 1-30 p.m. on 1-10-2007, the petitioners and their five nominated co-accused in the F.I.Rs. in furtherance of their common object opened attack by firing at Muhabat Khan and Saeed Alam who having sustained injuries lost their breath at the spot. The motive as stated in the F.I.R. was dispute with respect to the performing of Nikah by Muhabat Khan with a woman. The local police during the course of investigation declared five accused innocent and got them discharged from the case under section 169, Cr.P.C. The present petitioners having been found involved in the case were challaned to face the trial. The postmortem of the deceased was not conducted and weapon of offence recovered from the possession of petitioners were also not sent to the Ballistic Expert for opinion. The bail was declined to the petitioners by the learned Additional District and Sessions Judge mainly for the reason of their absconsion with their co-accused after the occurrence, and Chief Court while taking into consideration the alleged recovery of weapon of offence from them as an additional reason refused bail to them. The learned counsel for the petitioners has contended that in the F.I.Rs. and in the statement of eye-witness recorded by police under section 161, Cr.P.C. the petitioners and their co-accused have been assigned the collective role of firing at the deceased without any specific attribution to distinguish the case of the petitioners from their co-accused. In brief the contention of the learned counsel for the petitioners is that it being a case of collective firing, the petitioners would stand at par to their co-accused and by virtue of subsection (2) of section 497, Cr.P.C. would as of right be entitled to the concession of bail. The learned Advocate-General has opposed this petition mainly on the ground that in addition to the evidence of absconsion weapons of offence allegedly used by the petitioners in the occurrence were also recovered at their instance which would be considered sufficient evidence to connect them with commission of offence. We have heard the learned counsel for the petitioners and learned Advocate General at length and with their assistance also perused the record. The considerations for grant of bail in cases not falling within the prohibitory clause of section 497, Cr.P.C. are different to that of the cases falling under said clause and bail in cases involving punishment of death or imprisonment for life or for a term of ten 10 years, is not ordinarily granted unless the Court on the basis of tentative assessment of the evidence in the hand of prosecution forms an opinion that the guilt of the accused would require further inquiry in terms of subsection (2) of section 497, Cr.P.C. which provides as under:-- "if it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided." There is no general rule for grant of bail on the ground of further inquiry rather the scope of further inquiry in each case depends upon the facts and circumstances of that case. The provision of subsection (2) of section 497, Cr.P.C. may attract in the cases of no evidence .or the evidence direct or circumstantial is not confidence inspiring or the evidence is not of the standard to sustain conviction or there is no possibility of ultimate conviction on the basis of evidence brought on police file or the case is of doubtful nature and such other grounds which may be considered sufficient for further inquiry into the guilt of an accused. In the present case apart from direct evidence of eye-witnesses the abscondence of the petitioners and recovery of firearm allegedly used by-them in the occurrence have been brought on record. The medical evidence is not available to ascertain the cause of death and similarly the Fire-arm Expert opinion regarding the recovered weapon is not part of record whereas the eye-witnesses have assigned to all the accused, the same role of collective firing at the deceased. The tentative assessment of evidence in the hand of prosecution would show that the case against the petitioners is not distinguishable to their co-accused who have since been discharged and consequently their case would squarely fall within the ambit of section 497(2), Cr.P.C. for the purpose of further inquiry. The perusal of record would suggest that the investigation in the present case was not conducted in fair manner and the element of dishonesty is apparent on the face of record as the co-accused of the petitioners on the basis of same set of evidence, were declared innocent whereas the petitioners were challaned to face the trial. The District Attorney also did not care to take notice of defect in the case at the time of forwarding the challan to the Court. We are therefore, persuaded to direct I.G.P. and Secretary Law Northern Areas, to hold independent inquiries into the conduct of concerned police officials and the District Attorney who forwarded the challan to the Court. The report of the inquiries will be sent to the Registrar of this Court within a month. In the light of foregoing reasons, this petition is converted into an appeal and is disposed of in terms of short order passed on 9-6-2009 which is treated as part of this order and is read as under:-- "For the reasons to be recorded later this petition is converted into appeal and appellants are allowed bail subject to their furnishing bail bonds in the sums of Rs. two lac 200,000 each with two local sureties each in the like amount to the satisfaction of trial Court. Appeal is disposed of accordingly. H.B.T./9/Glt. Bail granted.