2014 PLP 623 (YLR)

RAJA SAEED AKRAM KHAN, J.

Through this criminal revision petition the validity of the order passed by the Shariat Court of Azad Jammu and Kashmir on 9-5-2007 has been challenged through which the Shriat Court has granted bail to accused-respondents Nos.1 and 2.

2. The facts arising from this revision petition are that the complainant-petitioner lodged an F.I.R. at Police Station Rawalakot on 17-8-2006 stating therein that he was running the business in Islamabad and Rawalakot. On 16-8-2006 at 11-32 p.m., he received a telephone call by an anonymous person from Mobile No.0301-5643704. During conversation, the unknown person asked him that he is a hired killer who, according to him, was engaged to kill the petitioner for a sum of Rs.20 lac. Without disclosing his identity, the unknown person demanded the said amount from the petitioner. On 16/ 17-8-2006, at 1-30 a.m. a huge explosion took place in front of the house of the petitioner and the material of blast was lying there. After that at 2-27 a.m. again a call was received from the aforesaid mobile number, upon which the unknown person told him about the consequences. The complainant-petitioner informed Muhammad Javed Sadiq, Muhammad Faazal Khan and Waheed Khan that some culprits tried to kill him and his family. On this report a case under sections 324, A.P.C. and 3 Explosive Act was registered against the unknown person. During investigation, mobile number was traced out which belonged to one Imran Sharif which, according to him, was taken from him by his real brother Irfan Sharif, accused-respondent No.1 on 15-8-2006. The statement of Imran Sharif was recorded under section 164, Cr.P.C. and the SIM of above mobile number was recovered from him. A motorcycle were also recovered from accused-respondent No. 2 which was used during the occurrence. During investigation, some explosive material was also recovered, therefore, both the accused-respondents were arrested. The accused-respondents moved separate bail applications after their arrest before the Additional District Criminal Court, Rawalakot, which were dismissed on 13-10-2006 and 9-3-2007 respectively. The orders of the Additional District Criminal Court were challenged before the Shariat Court by filing an appeal. The Shariat Court, vide judgment dated 9-5-2007 accepted their appeal and ordered to release them on bail. This judgment is under challenge through this revision petition.

3. Barrister Hamayun Nawaz Khan, the learned counsel for the petitioner, has submitted that the Shariat Court has not exercised the discretion judiciously while granting concession of bail to the accused-respondents who were involved in a heinous offence. The Shariat Court has deeply examined and appreciated the evidence which is not permitted under law. The accused-respondents were arrested along with cellular phone SIM bearing No.0301-5643704 was mentioned in the F.I.R. and some explosive material. The Shariat Court failed to take into consideration that the offences for which the accused-respondents were charged with, fall under the prohibitory clause of section 497, Cr.P.C., and the punishment provided under Explosive Act, is death or life imprisonment. The Court also failed to consider this aspect that there was no enmity, ill-will or mala fide to falsely implicate the accused-respondents in the case. The Shariat Court, at bail stage, has only to see that what material has been collected by the prosecution during investigation which prima facie connect the accused with the offence. He lastly argued that during the investigation confessional statement of one of the accused-respondents was recorded under section 164, Cr.P.C. and this fact has totally been ignored while granting concession of bail to the accused-respondents. The learned counsel for the petitioner has relied on the cases reported as Rahim Bakhsh v. Shah Nawaz and another (2003 SCMR 1966), Maj. (Retd.) Tariq Mehmood and others v. The State (2002 SCMR 1493), Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329), Muslim Shah v. The State (PLD 2005 SC 168), Amjad Hussain v. The State (2004 PCr.LJ 550), Muhammad Munir v. The State (1995 PCr.LJ 1255), Niaz Ahmed v. The State and 2 others (PLD 2009 SC (AJ&K) 22) and Mst. Bashiran Bibi v. Nisar Ahmad Khan and others (PLD 1990 SC 83).

4. On the other hand, Sardar Muhammad Hussain Khan, the learned counsel for the accused-respondents, has supported the judgment of the Shariat Court while arguing that the prosecution taken specific stand that mobile number was identified through C.L.I. whereas during the investigation, no C.L.I. was produced which makes the case one of further inquiry. He further argued that according to the prosecution, SIM was recovered from Imran Sharif whereas challan has been submitted against respondent No.1 which itself makes the prosecution story doubtful. He urged that explosive material which was allegedly recovered from the accused-respondents was unused, therefore, no definite expert opinion was given by the Bomb Disposal Expert. He lastly argued that once bail has been granted, there must be some very strong and exceptional reasons for its cancellation. The accused-respondents are previously non-convict.

5. We have heard the arguments of both the parties at length and also perused the record available. The F.I.R. was lodged against some unknown person whereas during the investigation mobile number was traced which was in use and possession of Imran Sharif. It is the part of the record that detail of the calls shows that this mobile number remained under use of different persons, therefore, no definite opinion can be formed at this stage that who was the real owner of the mobile. This fact can only be determined after recording evidence by the trial Court. No definite opinion regarding the explosive material is brought on the record as the same was unused. It is also not denied that no one was injured in the explosion. The applicability of the provisions of section 324, A.P.C., has to be seen by the trial Court at proper stage.

6. It is celebrated principle of law that once bail has been granted, there must be strong and exceptional reasons for its cancellation as has been laid down in a case reported as Ehsan Akbar v. The State and 2 others (2007 SCMR 482), in which it has been held as under:-- "

7. It is well-settled principle of law that this Court ordinarily does not interfere with the order of the High Court relating to bail particularly in case of murder when the trial is to commence so as to avoid discussion and remarks on the merits of the case. But it is also fact that for cancellation of bail, strong and exceptional grounds are required. It is to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice." It is brought in our notice that the trial of the case is in progress, however, the same has not been concluded as yet. In such like situation, this Court is always reluctant to interfere with the orders relating to bail matters particularly in a case when the trial was going to commence so as to avoid the discussion and remarks on the merits of the case as has been held in a case reported as Mian Dad v. The State and another (1992 SCMR 1418) wherein it has been observed as under:-- "During the hearing of the case it transpired that the challan having been submitted in Court the trial is going to commence. The learned Advocate-General has relied on Akmal Masih and others v. Salamal Masih and 4 others 1988 SCMR 918 in support of the contention that this Court ordinarily does not consider it appropriate at the stage as in present case to interfere with the orders of the High Court relating to bail

particularly in cases of murder. So far as it goes the contention raised by the learned Advocate-General has the support of the judgment cited by him." Similarly in a case titled Zia-ul-Hassan Shah and another v. The State (1996 SCR 238), it has been observed by this Court as under:-- " . It may be pointed out here that in bail matters, this Court does not ordinarily interfere with the discretion exercised by the Courts below. If an order pertaining to bail matter does not suffer from any legal defect which patently shakes the prosecution story, this Court is always slow to interfere in the discretion exercised by the Court below."

7. This case pertains to year 2006 and there is no positive progress in the trial. Nothing has been brought on the record that the accused-respondents have misused the concession of bail. Even otherwise the considerations in grant of bail and cancellation of bail are different. The provisions of subsection (5) of section 497, Cr.P.C., are not punitive in nature and there is no compulsion for the cancelling bail unless the order of bail is patently illegal, erroneous and factually incorrect and has resulted in miscarriage of justice or where the accused-respondents were found to be making efforts to misuse concession of bail by extending threats or tampering with prosecution case. We failed to find any such element from the impugned order/record.

8. There is no direct evidence available on the record against the accused-respondents. The investigation of case has already been completed and they are no more required for further investigation. No useful purpose will be served at this stage to sent the accused-respondents behind the bars.

9. So far as the case-law relied upon by the learned counsel for the petitioner is concerned, the same is not relevant to the facts of the present case. In criminal matters, particularly in bail matters, the authority of one case is hardly helpful to another case. Each case has its own peculiar facts and circumstances.

10. Without commenting upon the merits of the case which may prejudice the case of either party as the trial is already in progress, the learned counsel for the petitioner failed to make out a case for cancellation of bail. Resultantly, this revision petition is dismissed.

11. Before parting with the case, we may observe that the trial could not be concluded even after the lapse of more than five years, which seems that the Presiding Officers barely watch the proceedings and act as an idle spectator, perhaps they ignore a sacred responsibility on their shoulders to discharge by administering justice and refusing mechanical adjournments. Therefore, we think it proper to direct the trial Court to conclude the trial expeditiously after adopting all the coercive measures for procuring the attendance of the witnesses preferably within a period of six months from the receipt of this order. HBT/76/SC(AJ&K) Petition dismissed.