2002 P Cr (PLP)

This revision petition is directed against the order of District Court of Criminal Jurisdiction, Muzaffarabad, dated 3-6‑1998, whereby the non‑petitioner was allowed bail.

2. The brief facts leading to the background of the present revision petition are that a case for the offences under sections 302/324/147/148,149/34, A.P.C. was registered against the non‑petitioner No. 1 and others at Police Station Leepa on October 17, 1996. It is stated in the F.I.R. that there was a civil litigation between Lal Wazir arid others on the one hand and Sarwar Khan and others on the other, hand, regarding the partition of their lands. The cases are pending in the Civil Court. Lal Wazir and others appointed Abdul Rehman, the father of the complainant as their attorney for the prosecution of their cases. On the suits filed by both the parties, the stay orders were issued by the Civil Court. Despite the stay orders, on October, 17, 1996 Sarwar Khan, Nazir Ahmed Khan. Arsla Khan and others started ploughing the disputed land, bearing number Khasra No.591. The complainant's father reprimanded them to refrain from ploughing the disputed land. Upon this Nazir Ahmed Khan. Muhammad Naseer Khan, Abdul Majid, Muhammad Shafique. Muhammad Ashraf, Ashfaque Khan, Sarwar Khan, Arsla Khan, Abdul Qayyum, Abdul Latif, Mst. Taj Begum, Mst. Rafiq Begum, Mst. Tahira Begum and Mst. Zuhra Begum armed with sticks and mattocks launched the attack upon the father of the complainant in the land belonging to Hidayat Ullah. The complainant and his brother Rehmat Khan came at the place of the occurrence to rescue their father. In the mean time Nazi: Ahmed Khan the accused inflicted injury with the mattock on the head of Rehmat Khan. The victim fell down and the accused continued hitting, him with the handle of the mattock. Muhammad Naseer Khan, Abdul, Majid and Muhammad Shafique, accused caused injuries to Abdul Rehman with sticks and mattocks. According to the F.I.R., Abdul Qayyum, Abdul Latif, Muhammad Ashraf, Ashfaque, Khan, Mst. Taj Begum and Mst. Rafiq begum also inflicted injuries with their sticks on the person of the complainant.

3. The occurrence is stated to be witnessed by Ibrahim Khan Aziz -ur‑Rehman, Inaam Khan and Arshad Khan. Rehmat Khan succumbed to the injuries on October 18, 1996, the following day of the incident.

4. After registration of the case, all the accused persons were arrested by the police. They applied for their bail before the District Court of Criminal Jurisdiction, Muzaffarabad, and the same was rejected to the extent of the non‑petitioner and seven others. Revision petition against this order was also dismissed to the extent of non‑petitioner and three others. Feeling aggrieved with the aforesaid order of the Shariat Court, the non‑petitioner and three others filed an appeal before the Supreme Court, but again the same was dismissed to the extent of the non‑petitioner.

5. After some of the prosecution witnesses were examined by the trial Court, the non‑petitioner No. 1 moved a fresh bail application before the trial Court. This time the concession of bail was extended to him through the order, dated 3‑6‑1998, which is impugned before this Court through the t vision petition.

6. The learned counsel for the petitioner vehemently argued that the trial Court has committed a serious illegality while allowing the bail to non‑petitioner No.

1. According to him, all the P.Ws. examined by the trial Court have succeeded in establishing a prima facie case against the non‑petitioner. He further argued that all the points considered by the trial Court for allowing bail have already been discussed by the Supreme Court and in fact no fresh ground was available to the trial Court to pass the impugned order. He further added that the trial Court, while allowing the bail, has crossed the limits ascertained by the Supreme Court of Azad Jammu and Kashmir in the judgment titled Nazir Ahmed Khan and 3 others v. The State (Criminal Appeal No. 12 of 1997). He finally submitted that there is sufficient material on record to connect the non petitioner with the alleged offence. Therefore, the revision petition may be accepted and the bail allowed to the non‑petitioner by the trial Court may be cancelled.

7. On the other hand, the learned counsel for the non‑petitioner submitted that the trial Court has allowed the bail to the non‑petitioner on fresh grounds, and the Court has not crossed the limits ascertained by the Supreme Court in the quoted case. According to him, a counter F.I.R. No. 18 of 1996 was also registered about the same occurrence with the same police station against the complainant party, and at that the this case was under investigation. Now, after completion of the investigation, the challan in the counter‑case has been submitted before the trial Court, and in the light of the investigation in the canter‑case, it stands established that the complainant party was aggressor. He further added that the statements of the P. Ws. recorded by the trial Court are not inconsistent with each other and their deposition supports the defence version. He finally submitted that the trial Court has exercised its discretion in a judicial manner, and the same need's no interference from this Court, therefore, the revision petition may be dismissed.

8. I have heard the learned counsel for the parties and gone through the record of the case including the written arguments submitted by the respective parties with great care.

9. Before looking into the correctness of the impugned order, I would like to reproduce the observation of the Honourable Supreme Court in the case referred by the learned counsel for the petitioner. The Honourable Supreme Court has observed that:‑‑ "We are not unaware of the fact that mere counter‑version or mere registration of a cross‑case may itself not be a ground for release of an accused person on bail, but where in the cross version there seems to be some substance or some truth on the face of it, it certainly makes a room for further inquiry into the wilt of the accused."

10. It was further observed that:‑ "We have reached the conclusion that Nazir Ahmed Khan inflicted the fatal inquiry on the head of Rehmat Khan who succumbed to the said injury. This accused being responsible for causing the death of Rehmat Khan is not entitled to the concession of bail.

11. Thus it becomes clear that the counter‑version was very must present before the Honourable Supreme Court at the time of passing the above mentioned observations, and mere submission of the report under section 173 to the Cr.P.C. on the basis of the same material hardly provides any fresh grounds for allowing bail. Even otherwise, the counter‑version can only be considered if it provides some substantial grounds for further probe into the guilt of an accused person.

12. In the present case, it is clear from the record that Rehmat Khan deceased came at the place of occurrence to rescue his father from the clutches of the accused party, and he was not present at tote place of occurrence at the time the incident started. Even if we assume it for the sake of argument that the complainant party was aggressor even then it cannot be said that the deceased was a member of the complainant party present in the field at the time of occurrence, because he arrived at the place of occurrence after the fight has started. Therefore, it cannot be said at this stage that either the deceased was an aggressor or was a member of the of the aggressor party, on for that matter any right of self -defence or defence of property was available to the non‑petitioner against the deceased at the time of occurrence.

13. The prosecution case is that while the deceased Rehmat Khan was coming to the place of occurrence, Nazir Ahmed Khan the accused inflicted injuries on his person, who later on succumbed to the injuries and all the prosecution witnesses so far recorded by the trial Court have supported this part of the prosecution story.

14. I am unable to understand that exactly what material impressed 'the trial Court to pass the impugned order. A survey of the impugned order shows that the trial Court has pointed out some contradictions in the statements of the P.Ws., but these were not sufficient to bring the case of the non‑petitioner within the scope of further inquiry. Similarly, the argument of the trial Court in support of the impugned order that "registration of the counter‑case and the presence of both the parties amt the place of occurrence at the relevant time brings the case of the non petitioner within the scope of further inquiry" is also incorrect in light of the facts listed above.

15. It is important to note that while deciding the bail application the trial Court has conducted a detailed scrutiny of the prosecution evidence, which was not required at this stage. It has been held in a number of cases by the superior. Courts that while deciding a bail application, the Court has to make a tentative assessment of the material available on record, and any deeper appreciation or detailed scrutiny of the prosecution evidence is not permissible at this stage, because any expression of opinion may prejudice the case of either party.

16. In light of the facts listed above, I am of the view that Nazir Ahmed Khan, non‑petitioner, being responsible for inflicting fatal blow that caused the death of Rehmat Khan, was not entitled to the concession of bail, and the trial Court has ignored the abovementioned facts while passing the impugned order, therefore, the impugned order being' incorrect is hereby set aside, and consequently, the bail allowed to non petitioner by the trial Court stands cancelled. He shall be taken into custody, and shall be sent to judicial lock‑up. However, keeping in view the delay in conclusion of the trial, the trial Court is directed to conduct the proceedings expeditiously.

17. Before parting with the case I would like to make it explicit that any observation made in this order is purely for the purpose of bail.

18. In light of what has been stated above, the revision petition stands accepted. H.B.T./43/Sh.C.(AJ&K) Bail cancelled.