2019 PLP 799 (MLD)

CH. MUHAMMAD IBRAHIM ZIA, C.J.

Both the captioned appeals have arisen out of the common judgment of the High Court dated 23.12.2017 and relate to identical incident, therefore, the same are being disposed of through this single consolidated judgment.

2. The precise facts of the case are that the complainant, Khalid Hussain, lodged a written report at Police Station, Kahuta on 09.07.2016 at 7:15 p.m. The averments of the report are incorporated in detail by the Courts below in the impugned judgments, hence, for the sake of brevity the same need not to be reproduced. On this report, an FIR No.89/2016 was registered against the accused, nominated in the report, in the offences under sections 302, 324, 147, 148, 149, 427, 436, 109, APC at Police Station Kahuta, on 09.07.2016. During investigation, the offences under section 6 of the AJ&K Anti-Terrorism Act, 2014 and 15(2-AB) of Arms Act, 2015 were also added. After registration of the case, the accused-appellant, Asif Rathore, applied for post arrest bail which was declined. However, after submission of challan before the Anti-Terrorism Court he once again approached the Court for bail. His bail application was dismissed vide order dated 18.07.2017. The accused-appellant, Asif Rathore, challenged the said order by filing Revision Petition No.144/2017 before the High Court.

3. The appellant, Muhammad Azad Khan and others, after registration of the case, applied for pre-arrest bail before the trial Court which was initially granted, however, subsequently disallowed. After submission of challan, they moved post arrest bail applications before the trial Court which were dismissed vide order dated 05.08.2017. Against this order the appellant, Muhammad Azad Khan and others filed Revision Petition No.167/2017 before the High Court. The learned High Court through impugned consolidated judgment, .dismissed both the revision petitions, hence, these appeals.

4. Kh. Attaullah Chak, Advocate, the learned counsel for the appellant, Muhammad Azad Khan, after narration of necessary facts submitted that the Courts below have fell in error of law while declining to extend the concession of bail to the appellant and to his extent the revision petition has been rejected against the principle of administration of justice. The co-accused against whom allegation of murder was leveled have been extended benefit of section 169, Cr.P.C. by the Investigation Officer, whereas, to the extent of appellant only allegation is firing and causing the injury on foot of victim. He submitted that the FIR has been lodged with the delay of four hours. The recovered crime weapon, Kalashnikov, has not been sent for forensic science report. There are major contradictions in the statements of prosecution witnesses which creates doubt. All these aspects have not been properly considered by the Courts below. According to the celebrated principle of law, these are sufficient grounds for granting concession of bail to the appellant-accused. He further argued that there is lengthy list of prosecution witnesses and despite passage of more than a year period only the statement of one prosecution witness has been recorded. It appears' that the completion of trial will take years' time. For such indefinite time keeping the appellant behind the bars is against the principle of administration of justice. He referred to the cases reported as Naseer Ahmed 7 others v. The State [1998 P.Cr.LJ 11], Zaheer Ahmed and another v. Ibrar Hussain and others 12014 SCR 1667], Sanwan v. The State [2003 PCr.LJ 756], Muhammad Arif v. The State [2004 PCr.LJ 1347], Saghir Ahmed v. Zulfiqar Ahmed and another [2005 SCR 422], M. Ajmal and others v. M. Naeem and others 2001 PCr.LJ 1073, M. Sagheer v. State 2004 PCr.LJ 1925, Shafi Muhammad and others v. The State [2003 PCr.LJ 862] and Abdul Khaliq v. State and another [2010 SCR 402].

5. Mr. Tahir Aziz Khan, Advocate the learned counsel for the appellant, Asif Rathore, after narration of necessary facts submitted that the case of prosecution against the appellant is doubtful. The allegation, leveled in the FIR has not been proved in the investigation and the same has been substituted with another allegation. There are material contradictions in the statements of the prosecution witnesses which creates serious doubts. All these aspects have not been considered by the learned High Court. He further submitted that in view of material defects in the prosecution case, the appellant deserves concession of bail.

6. While controverting the arguments of the learned counsel for the appellants, Sardar Javaid Naz, Additional Advocate General opposed the appeals on the ground that arguments advanced at bar have no substance as all these aspects have been properly considered by the trial Court as well as the revisional Court. The appellants want minute and deep appreciation which cannot be made at this stage. It amounts to pre-judge the case of the either party. The accused are nominated in the FIR and a specific role has been attracted to them. They are involved in commission of heinous non-bailable offences falling under the provisions of Anti-Terrorism Act. According to the enforced law the accused involved in such offences are not entitled for concession of bail. He further argued that both the learned counsel for the appellants have failed to advance any argument justifying the interference of this Court. As all the relevant aspects have been considered by the trial Court therefore, for justifying the filing of appeals, it is enjoined upon the appellants to point out any illegality or infirmity in the impugned judgments whereas, no such illegality has been pointed out. Both the Courts below have passed the judgments after due application of judicial mind, therefore, these appeals have no substance. He also submitted that the prosecution is intended for speedy trial but due to abscondance, delaying tactics and unnecessary litigation of the accused the proceeding in the trial has been hampered. He submitted that if a direction for expeditious disposal is issued the prosecution will fully co-operate in disposal of the case.

7. We have paid our utmost attention to the arguments of the learned counsel for the respective parties and perused the record made available. Admittedly, according to the prosecution case, the allegations against both the appellants are commission of the offences falling under the provisions of Anti-Terrorism Act. The judgment of the trial Court reveals that it declined to grant the bail after hearing the counsel for the parties and appreciation of the material relating to the case while keeping in view the provision of section 53 of AJ&K Anti-Terrorism Act, 2014. None of the counsel for the appellants have advanced any arguments that in view of the provision of AJ&K Anti-Terrorism Act, 2014 how the judgment of the trial Court is against law, arbitrary or perverse. All the arguments advanced are lacking the proper appreciation of the provisions of special law. The arguments of the counsel of the appellants that there are contradictions in the prosecution which creates doubt etc., according to their nature, require deep appreciation of the evidence. The Court below have rightly observed that at this stage such appreciation is not permissible. The order passed by the trial Court appears to be speaking one and based upon appreciation of the relevant material and the appellants in the revision have also failed to make out any convincing grounds for exercising of revisional jurisdiction to their extent. The High Court's judgment is also speaking one and does not suffer from any illegality or legal infirmity.

8. The argument of the learned counsel for the appellant that there is lengthy list of prosecution witnesses and the trial Court is not conducting the expeditious proceeding although, has substance but the counter argument that the delay is mainly caused due to acts and conduct of accused also finds support from the record. The cases are relating to Anti-Terrorism Act and the purpose of enforcement of this special law and establishment of Special Courts is speedy trial of such cases. We are not satisfied with the progress of the case whatever the reason may be, whether the accused are practicing the delaying tactics or any other cause but it amounts to frustrate the very purpose of the enforcement of special law, specially the provisions of section 46 of AJ&K Anti-Terrorism Act, 2014.

9. We have also noticed that the appellants are facing the trial relating to the offences falling under the special law i.e., the Azad Jammu and Kashmir Anti-Terrorism Act, 2014. The word 'terrorism' has been comprehensively defined under the provisions of section 5 of this Act and the punishments have been provided under section

6. According to the provisions of this special law the nature of offence and quantum of punishment is quite different from nature and quantum of punishment provided in the ordinary laws. Same like, in relation to the bail the relevant section is 53 which also lays down some special conditions and procedure. The learned counsel for the appellants have mostly argued and referred the case law which relates to the trial of the offences by the ordinary Courts and fall within the definition of offences and punishments provided in the ordinary laws, whereas, the position in the case in hand is quite different. The learned counsel for the appellants could not succeed to develop any argument in the light of the provisions of special law.

10. As it has been hereinabove observed that the judgment under appeal is speaking one based upon settled principle of law and does not suffer from any legal infirmity. However, as we have also observed that the expeditious disposal of the case will serve the purpose, therefore, we deem it necessary in the interest of justice to direct the Court to take all necessary steps, conduct expeditious proceeding of the case and ensure disposal of the same as early as possible while strictly complying with the provisions of section 46 of AJ&K Anti-Terrorism Act, 2014. However, in both the appeals the appellants have failed to make out any ground for interference in the impugned judgment. These appeals stand disposed of in the above terms. JK/30/SC(AJ&K) Appeals dismissed.