1997 P Cr (PLP)

(iv) that the complainant nominated 4 accused persons whose names were unknown to him but the prosecution challaned those persons who were known to the complainant, therefore, the matter requires further probe, in the circumstances, about the identification of other accused persons; (v) that the crime empties were not recovered from the place alleged by the prosecution; and (vi) that there is no independent corroboration put forth by the prosecution.

7. On the other hand, Ch. Muhammad Mushtaq the learned Additional Advocate-General and Ch. Ghazanfar Ali, the learned counsel representing the State and complainant addressed the following arguments in support of refusal of bail to the petitioner Muhammad Yusuf:-- (i) That there is a strong prima facie case disclosed against the accused petitioner who is mentioned in the F.I.R. and the prosecution version is supported by the evidence of its 2 witnesses, namely Liaqat Ali son of Abdul Karim and Muhammad Taj son of Muhammad Din, in addition to the complainant; (ii) that the prosecution version is corroborated by the medical evidence and the evidence of recovery effected upon the said accused; (iii) that the accused-petitioner committed a heinous offence by his reckless firing along with other accused, resulting in spontaneous death of two persons, Sohbat Ali and Muhammad Iqbal; (iv) that the points raised by the learned counsel for the accused for the grant of bail relates to detailed merits of the case, as such, are not to be gone into at bail stage. Particularly by the superior Courts; and (v) that the trial Court after due consideration disallowed the concession of bail. The order based on relevant facts, warrants no interference.

8. The learned counsel for the complainant, Mr. Ghazanfar Ali Chaudhry also raised the following points in support of the petition filed for cancellation of bail allowed by the trial Court, to Ahmed Din accused:-- (i) That the accused-respondent is nominated in the F.I.R. by the complainant in a report promptly lodged by him wherein the allegation of causing injury to Muhammad Iqbal deceased is attributed. The above version is supported by the other prosecution witnesses, including the corroboration by medical evidence and recovery of the alleged gun made from the accused-respondent; (ii) that while granting bail to the said accused-respondent, the trial Court embarked upon the detailed merits of the case which prejudiced the prosecution's case, as such the order is not maintainable.

9. In reply to the argument advanced in favour of cancellation of bail allowed to Ahmed Din, accused, Raja Mazhar Iqbal, the learned counsel representing him, argued that the prosecution was doubtful about the participation of said accused-respondent in the occurrence. He referred to a portion of the judgment recorded by the trial Court, by pointing out that the version of the Investigating Officer wherein it was mentioned that the gun alleged to have been recovered from the accused-respondent was in the hand of Muhammad Akram alias Paija, at the time of incident. It was also argued by the learned counsel for the accused-respondent that the Investigating Officer, in the circumstances did not decide the participation of the accused-respondent and left it to be decided by the Court. It was further argued that it was not possible for the complainant or the witnesses to identify any accused or an injury caused by him through a fire-arm when some of the accused persons could not be identified by him, as such the matter requires further inquiry, particularly when the injury shows to have been caused is simple on the non-vital part of the body.

10. I have heard the learned counsel for the parties and also gone through the record minutely including the police diaries. The accused-petitioner, Muhammad Yusuf is specifically mentioned in the F.I.R. by a report lodged by the complainant on the same day. Two prosecution witnesses, Liaqat and Muhammad Taj also support the prosecution version. The post-mortem report of Sohbat Ali deceased, who was alleged to have been caused injuries by the said petitioner, is shown to have received injuries on his face, ear, head and other parts of his body which are 28 in number, including the exit wounds. The other deceased person, Muhammad Iqbal was caused 16 injuries on different parts of his body. The gun allegedly used in the commission of offence, was recovered at the instance of the accused-petitioner. In presence of the evidence described above a prima facie case appears to have been established by the prosecution against the accused-petitioner.

11. The point raised on behalf of Muhammad Yusuf, accused-petitioner as to the tampering with the F.I.R. by changing its date, the relationship of the witnesses inter se and with the deceased persons including the point relating to identification, certainly relate to the detailed merits of the case. While considering a bail application of an accused person involved in a non-bailable offence punishable with death or imprisonment for life, bail is not allowed if there appear reasonable grounds for believing that he has committed such offence unless the case is covered by the provisions of section 497, Cr.P.C. or it appears to such Court at any stage of investigation, inquiry or trial that there are no reasonable grounds for believing that the accused has committed a non bailable offence and there are sufficient grounds for further inquiry into his guilt under subsection (2) of section 497, Cr.P.C. The trial Court after considering the relevant facts declined the concession of bail to the accused-petitioner. The points raised by the learned counsel, as discussed above, relate to the detailed merits of the case which cannot be gone into at bail stage as the rule in such cases involving death penalty or imprisonment for life is that bail shall be granted only if there are no reasonable grounds for believing that the accused is guilty of the charge or the case is such that it requires further inquiry. If such ground exist tending to connect the accused with the alleged crime, bail should be refused without going into deeper appreciation of merits of those grounds and the evidence on which those are rested unless it is found that the charge is groundless or unsupported by any evidence. Reliance in this regard may be placed on Fazalur Rehman v. The State PLD 1981 SC (AJ&K) 10 wherein it was held as under:-- "If such grounds exist tending to connect the accused with the crime, bail should be refused without going into deeper appreciation of the merits of those grounds and the evidence on which they are rested, which is the function exclusively of the trial Court. However if it is found that the charge is groundless i.e. to say unsupported by any evidence or its absurdity stands exposed on a plain view or the charge on its face value is reduced to a minor one, which is not punishable with death and transportation for life, bail can be allowed." A similar proposition came under consideration before the Supreme Court of Pakistan in the case titled Sanatta v. The State 1982 SCMR 208 wherein it was resolved as under:-- "Section 497

Bail, refusal of

Petitioners ascribed specific roles but other accused released on bail not assigned any overt act

Fact of medical report not agreeing with amount of eye-witnesses

May be relevant factor at trial yet such matter cannot be gone into deeply at bail stage

Incriminating weapons recovered from accused petitioners and found to be stained with blood

Dictum laid down in PLD 1972 SC 81 that contradictory versions as to specific roles assigned to accused necessitated further inquiry entitling petitioners to grant of bail

To be read in light of peculiar facts and circumstances of each case and not universally applicable particularly when facts of case under decision different from facts of case referred

Discretion exercised by High Court in refusing bail, held, not exercised illegally or perversely."

12. In view of the facts and law discussed above the petition merits no consideration. The trial Court has rightly refused bail to the accused-petitioner after considering the relevant facts.

13. It is contended by the learned counsel for the complainant that the accused-respondent, Ahmed Din is specifically mentioned in the F.I.R. supported by two witnesses of prosecution, along with the corroboration by medical report, showing injuries to the deceased person caused by a .12 bore gun allegedly fired by the said respondent. The subordinate Court, after considering the facts involved in the bail application of the accused-respondent, allowed the concession of bail particularly keeping in view the fact of doubt of using the gun allegedly recovered from the said accused-respondent, by another accused, Muhammad Akram, during the occurrence. It was mentioned in the trial Court's order that the prosecution is doubtful about the accusation levelled against the said accused-respondent and as such they have used the words "the accused is left at the discretion of the Court". For my own satisfaction, I have also gone through the police diaries, including the relevant diary quoted by the District Criminal Court. It may be mentioned that the opinion of the Investigating Officer for the use of the relevant gun by another accused and its recovery from the accused-respondent for the compelling circumstances of being nominated in the F.I.R. by the complainant party, definitely brings the case of the accused-respondent within the ambit of further inquiry though the Trial Court has gone too far to discuss all the detailed merits, including the relevant diary quoted by it. All the Courts, particularly the trial Court should avoid from embarking upon the merits of the case lest it may prejudice the case of either party. However, the fact remains that the prosecution is not sure about the part attributed to the accused-respondent in commission of the offence. Therefore, there are sufficient grounds for further inquiry into his guilt. The contentions of the learned counsel, in the light of above facts, are found to have no substance in them. It may also be mentioned that mere allegation of heinous offence may not be a ground to refuse bail as the same cannot be withheld as punishment. Reliance in this regard is placed on the case titled Muhammad Bashir v. The State PLD 1983 SC (AJ&K) 8, wherein it was held as under:-- "It is the basic principle of law that the bail is not to be refused as a punishment merely on the allegations that a person has committed an offence punishable with death or transportation of life unless reasonable grounds appear to exist to disclose their complicity. The wisdom behind it is that if an accused in view of the circumstances of a given case is finally acquitted, how can he be compensated for his detention, in the judicial lock-up during the trial. Therefore, the law allows concession of bail to such a person of course pending further enquiry into his guilt." The trial Court in this case after discussing the relevant facts, proceeded to allow the concession of bail to the accused-respondent on reaching the conclusion that his case requires further probe into his guilt. This order does not appear, in any way, against the settled principles of law established by the superior Courts and requires no interference by this Court.

12. In view of the above discussion, both the petitions stand dismissed. N.H.Q./30/Sh.C. (AJ&K) Order accordingly.