2017 P Cr (PLP)

MUHAMMAD SHERAZ KIANI, J.

The captioned application/revision petition has been directed against the order of District Court of Criminal Jurisdiction Haveli, Kahuta dated 05.11.2016, whereby the post arrest bail application of the accused-petitioners was rejected.

2. Precise facts forming background of the instant application/revision petition are that complainant lodged a report at Police Station Kahuta on 08.04.2016 stating therein that his brother, Khawaja Yasir who was missing from house since 01.04.2016, initially, he was searched but not found and he had also filed a missing report at Police Station Kahuta on 03.04.2016. Later on lie came to know that his brother made illicit relations with one Mussarat daughter of Abdul Aziz and he shown the suspicion that his brother was abducted or murdered by her family.

3. On this report, the investigation agency started investigation and found the dead-body of the Khawaja Yasir (deceased) from lichen (Khai) near the house of Mst. Mussrat and he was identified by the complainant, Pervaiz Mehmood and his uncle. Kh. Mateen and a case under sections 302, 201, 202, 34, A.P.C. and 10, ZHA was registered against the accused-petitioners and co-accused at Police Station Kahuta on 08.04.2016. After registration of the case, the accused-petitioners were apprehended and thereafter they moved post-arrest bail application before District Court of Criminal Jurisdiction Kahuta on 08.09.2016. The said Court after hearing the learned counsel for the parties rejected the same vide its order dated 05.11.2016, hence this revision petition.

4. The learned counsel for the accused petitioners argued that the Court below committed grave illegality while recording the impugned order. He submitted that no specific role has been attributed against the accused-petitioners in the FIR. The learned counsel further contended that in the challan same role has been leveled against all the accused persons. The co-accused have been enlarged on bail, therefore, the present accused-petitioners are also entitled for the same treatment on the basis of rule of consistency. The learned counsel further argued that the statement of witnesses recorded under section 161, Cr.P.C. clearly shows that none of the witness has attributed any type of role against the accused-petitioner in the alleged murder of the deceased. The role ascribed in the statements recorded under section 164, Cr.P.C. against the accused-petitioners was only to the extent of dragging the dead-body of the deceased out of the house of Akbar accused and no other overt act has been leveled against them. Therefore, the case of the accused-petitioners falls within the ambit of further inquiry. The accused-petitioners remained for investigation for a considerable time and they are no more required for investigation purpose. Finally, the learned counsel prayed that by accepting the revision petition, the impugned order may be set aside and accused-petitioners may also be allowed bail. In support of his contentions, the learned counsel referred the following authorities;- 1. 2001 PCr.LJ 86; 2. 2005 YLR 1220;

3. PLD 1994 SC 314.

5. On the other hand, the learned counsel for respondent No.2/complainant while controverting the arguments raised by the learned counsel for the petitioners submitted that the Court below has rightly declined the concession of bail. The learned counsel further contended that although the accused-petitioners are not nominated in the FIR, but during investigation, they were found guilty of offences. He further submitted that this is not a case of direct evidence rather it is a case of circumstantial evidence. Accused-petitioners committed a heinous offence of murder of innocent young man and they have also recorded their confessional statements. The case of the petitioners falls within prohibitory clause of section 497 of Cr.P.C., as such they are not entitled for any leniency like bail. The learned counsel defended the impugned order on all counts. In support of his contentions, the learned counsel referred the following authorities;- 1. 1990 SCMR 315. 2. 2009 MLD 518; 3. 2009 PCr.LJ 1250.

6. The learned A.A.G, appearing on behalf of the State supported the arguments raised by the learned counsel for the complainant and also referred 1995 PCr.LJ 1996.

7. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.

8. It is settled principle of law that at bail stage deeper appreciation of evidence is not permissible and only tentative assessment of material has to be made and if from the tentative assessment of evidence available on record a case of further inquiry is made out then the concession of bail should be granted to an accused.

9. It will not be out of place to mention here that the principal accused is Akbar son of Abdul Aziz (not before me), who also got recorded his statement under section 164, Cr.P.C. and stated that he had beaten the deceased as a result he became unconscious and thereafter he called upon the accused-petitioners and co-accused. It is also relevant to note here that same role has been leveled against the present accused-petitioners and co-accused, who have been released on bail, therefore, the accused-petitioners are also entitled for the same treatment on the basis of rule of consistency. Prima facie none of the accused petitioners had caused any injury to the deceased, which may be resulted in his death. The only role attributed against accused-petitioners is that they dragged the dead-body of the deceased to take it out of the house of accused, Akbar. A tentative assessment of evidence so far recorded by the trial Court shows that no such act has been leveled against the accused-petitioners which may be considered as the cause of death of the deceased. So, these factors make the case to the extent of petitioner a matter of further inquiry. Prima facie, the case of the accused-petitioners falls within the purview of section 497(2) of Cr.P.C. and thus, being case of further enquiry, the accused-petitioner is entitled for the concession of bail. Furthermore, law could not be stretched in favour of the defence or the prosecution for purpose of bail and it is settled principle of law that bail could not be withheld as punishment and in case where the Court would feel that it was a case of further inquiry, the bail could not be withheld even for a day. Investigation has been completed, challan has also been presented. It is settled principle of law that benefit of doubt can be given to the accused even at bail stage. In the light of what has been stated above, I accept this revision petition by setting aside the impugned order and it is ordered that accused-petitioners shall be released forthwith on furnishing bail bond in sum of Rs. 10,00,000/- (ten lacs) each consisting of two solvent sureties and personal bond in the like amount to the satisfaction of any Magistrate 1st Class Kahuta-Haveli, if not required or involved in any other case or offence. HBT/5/Sh. C. (AJ&K) Petition accepted.