1992 PLP 2102 (MLD)

‑‑‑‑5.497(5)‑‑‑Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.5/15‑‑‑Penal Code (XLV of 1860), S.307/452/148/149/109‑‑‑Cancellation of bail‑‑‑Tentative appraisal of the accusation against accused and the circumstances of the case had brought the accused's case within the purview of S‑497(2), Cr.P.C.‑‑‑Petition for cancellation of bail was dismissed in circumstances. Ch. Ali Muhammad for the Complainant. Muhammad Akram Mughal, Addl. A.‑G. for the State. Ch. Muhammad Taj for Respondent. The petition is moved for cancellation of bail allowed to Abdul Haque, accused‑respondent, by the District Criminal Court, Mirpur, on April 25, 1992.

2. Abdul Haque is facing trial on the charge of murder and attempt to murder, by forming unlawful assembly, under sections 5, 15, Islamic Penal Laws Act, read with sections 307, 452, 148, 149, 109, A.P.C. The alleged incident of murder took place at 11‑30 at night on May 9, 1991, in village Joian, Tehsil Mirpur, Police Station Afzalpur, Ashfaq Hussain is an eye‑witness of the incident. It was alleged that on the night of the incident, Ashfaq Hussain (complainant), Mst. Hakim Bibi, Muhammad Ishaque, Mst. Muhammad Bibi, Arfaq Hussain and Mst. Roqiyya Bibi, were sleeping in the courtyard of‑their house. They awoke on the burst of fire. Abdul Khaliq, Altaf Hussain, Ghulam Hussain, Ghulam Ahmed, Riaz and Mushtaq, accused jumped in their courtyard by scaling the compound wall. Abdul Khaliq was armed with Klashnikov, Abdul Haque with 7mm, Ghulam Ahmed with .12 bore gun, Ghulam Hussain with.12 bore single barrel gun, Mushtaq with 7mm and Riaz carried a revolver. Ghulam Hussain and Ghulam Ahmed tied Muhammad Arfaq and Muhammad Ashfaq and fell them on the bed. Altaf Hussain fired with his 7‑mm on Muhammad Arfaq. Abdul Khaliq also fired with his Klashnikov at the abdomen and thighs of Muhammad Afraq who died on the spot. They‑dragged him in the courtyard when Muhammad Bibi fell on him. Ghulam Ahmed and Ghulam Hussain, accused fired on Mst. Muhammad Bibi and inflicted injuries on her thighs. Mst. Hakim Bibi and Muhammad Ishaque also rushed to intervene. They were also given injuries by the firing of Ghulam Hussain and Ghulam Ahmed. Muhammad Ishaque was injured by Mushtaq accused. Muhammad Raiz caused blows with lists and kicks to Mst. Hakim Bibi and ‑Muhammad Ishaque. The accused disappeared from the scene. It was alleged that the, accused killed Muhammad Arfaq, in consequence of consultation and abetment of Abdul Haque, accused. The allegation against the accused was confined to abetment in commission of murder, attempt to murder and house trespass by forming unlawful assembly. All the accused were put to trial. The challan was submitted on October 16, 1991, The accused were examined under, section 242, Cr.P.C., on the last elate, on May 13, 1992. The case has been adjourned to June 8, for evidence.

3. Abdul Haque, accused was allowed bail by the trial Court as his name was not described in the first information report, nor he was ascribed an active partisan role. It was held that the case of the accused fell within the provisions of section 497(2), CrY.C. The investigating agency gave him the benefit of provisions of section 169, Cr.P.C., for want of sufficient evidence.

4. Ch. Ali Muhammad, the learned Counsel for the complainant argued that the accused played an active role in the commission of offence as he hatched a conspiracy and made abetment in the commission of murder and attempt to murder. 1n presence of evidence of prosecution against the accused, he deserved no concession of bail. Mr. Muhammad Akram Mughal, the learned Additional Advocate‑General supported the learned Counsel for the complainant and prayed for cancellation of bail. Ch. Muhammad Taj, the learned Counsel for the defence controverted the aforesaid pints and argued that there was no evidence on record to connect the accused with the alleged abetment in the offence of murder and attempt to murder. He supported the order of bail passed by the trial Court.

5. In order to withdraw the concession of bail allowed by the trial Court, it is imperative to satisfy that the order was perverse. The trial Court allowed bail to the accused as, in its view, the investigating agency itself was not satisfied over his involvement by making abetment in the commission of offence of murder. Thus, he was given the benefit of provisions of section 169, Cr.P.C. and was dropped from the trial. The trial Court also considered the evidence available on record and arrived at the conclusion that at this stage there was no sufficient evidence to constitute reasonable grounds to connect the accused with the liability of abetment. It was considered a case of further inquiry.

6. The prosecution witnesses examined by the investigating agency disclosed the link of the accused with Abdul Khaliq, principal accused, who has absconded after the commission of offence of murder. It was stated that the accused approached the complainant party to compromise with the accused in another criminal case. On refusal of the complainant to effect compromise, they were threatened of the dire consequence. A tentative appraisal of the aforesaid accusation, prima facie, brings the case of the accused within the purview of section 497(2), Cr.P.C. The alleged overt act relating to compromise in the previous criminal case and advancement of threats, was prima facie, very vague. In the circumstances, it is not deemed expedient to interfere in the order of bail allowed by the trial Court. The petition is, therefore, dismissed. N.H.Q/521/H.C.A Petition dismissed.