2019 P Cr (PLP)

RAJA SAJJAD AHMAD KHAN, J.

Through this revision petition the petitioner seeks bail after arrest which was declined to him by Additional District Court of Criminal Jurisdiction, Kotli vide its impugned order dated 31.01.2018.

2. Briefly stated the facts of the instant revision petition are that Tahir Ayyub, SI/SHO, complainant, made a report at Police Station, Kotli about the occurrence wherein it was alleged on 22.10.2017, the complainant received a telephone call that in Danna Gala a person namely Nazakat Hussain was murdered. On this information, he along with other police officials arrived at the place of occurrence at the house of Ch. Mohammad Jahangir, before his arrival, Sardar Khalid Mehmood. Azad, Sardar Majid Azad, Master Mohammad Asif, Master Amjad, Mohammad Jahangir etc. and 25/30 persons were present. It came to know that Nazakat Hussain contracted marriage with Gulnaz Akhtar who along with his children had been residing in the said house for the last 7/8 years. Nazakat Hussain had been suspected upon Israr Chaudhary, accused for having illicit relations with his wife. On 22.10.2017, he told to his wife that he is going to Rawalpindi and also had been saying his wife that he was travelling to Rawalpindi but realistically he did not go there. During night time at about 10.00 p.m., for clarifying his suspicion Nazakat Hussain came to his home silently and tacitly and saw that in a closed room his wife and Israr Chaudhary were talking each other, upon which he knocked at the door but it did not open by the accused. Then he broke the door and found his wife with Israr Chaudhary. Due to fear of disclosure of fact, his wife and Israr Chaudhary (accused), start beating him and killed him with brutality.

3. On this report a case vide FIR bearing No.392/2017 was registered at Police Station, Kotli against the accused petitioner herein and co-accused in offences under sections 302, 34, A.P.C. and they were apprehended. The accused petitioner after his arrest applied for bail after arrest in the Court of Additional District Court of Criminal Jurisdiction, Kotli which was refused to him vide impugned order dated 31.01.2018, hence this revision petition.

4. Ch. Mehboob Elahi, the learned counsel for the accused petitioner vehemently argued that the trial Court committed grave illegality while passing the impugned order because as per record, the occurrence took place in the dark hours of night on 22.10.2017 at about 10.00 p.m. but the report was lodged on 1.30 a.m. after the delay of 3-1/2 hours. He submitted that the occurrence was not witnessed by anybody as no witness was cited in the FIR. The FIR was registered without any evidence. He maintained that petitioner is an innocent person, there is no evidence that he shared common intention with co-accused for the commission of murder of deceased. The mother of co-accused was also present at the place of occurrence but she was not cited as witness. He argued that allegation against the accused of running away in naked position was baseless because his clothes were not seized. He came at the place of occurrence with his wife. The SI/SHO is close relative of the deceased who registered the case. According to the learned counsel, the case against the petitioner does not come within the ambit of section 497(1), Cr.P.C. and fall within the purview of further inquiry, therefore, by accepting the revision petition he may be released on bail. In support of his arguments the learned counsel has referred and relied upon the following case law:- 1. 2002 PCr.LJ 494; 2. 2009 PCr.LJ 1178; 3. 2009 PCr.LJ 845; 4. 2014 SCR 1667; 5. 2016 PCr.LJ 1754; 6. 2016 SCR 538; 7. 2017 SCR 420

5. On the other hand, Raja Javed Akhtar, Advocate for complainant and legal heirs of the deceased, argued that there is no motive behind the occurrence. He further argued that specific role has been attributed to the petitioner during the occurrence. No previous enmity exists between the parties, thus the question of false implication does not arise. He pointed out that it was established that both the accused were in contact with each other through telephone and from 13.10.2017 to 22.10.2017, 211 calls were made from the accused to co-accused. He further argued that during the investigation his physical presence and active role has been found and sufficient incriminating material has been collected by the investigating agency to connect the petitioner with the commission of alleged offence. He has committed an offence which falls within the prohibitory Clause of section 497, Cr.P.C., and was not entitled to the concession of bail. The learned Counsel defended the impugned order on all counts. In support of his arguments the learned Counsel placed reliance on the following authorities:- 1. 1985 PCr.LJ 1546; 2. 1999 MLD 2213; 3. 1995 SCMR 1099; 4. 1995 PCr.LJ 1838; 5. 1996 PCr.LJ 1681; 6. 1999 PCr.LJ 256; 7. 2001 MLD 1123.

6. Learned Assistant Advocate General appearing on behalf of the State fully owned and supported the arguments raised by the learned Counsel for the complainant/legal heirs of the deceased.

7. I have heard the learned Advocates for the parties and gone through the record made available.

8. In case reported as "State v. Mohammad Nisar Khan and 2 others" {1985 PCr.LJ 1546} while dealing with a bail matter, the Hon'ble Supreme Court of AJ&K has held as under:- "

8. Bail to an accused charged with an offence punishable with death sentence or imprisonment for life would not ordinarily be permissible if there appears reasonable ground that there exists a prima facie case tending to connect him with the crime. To determine if reasonable grounds exist or a prima facie case appears to have been made out against the accused from the facts in a given case, a deeper appreciation or a probe into the merit of it is not required to be conducted. The Court has to form a prima facie view from the material available on record and see whether such material or evidence if left unrebutted may lead to the inference of guilt. If such tangible evidence exists then it will be a case wherein it could be said that there exist reasonable grounds for holding the belief required under the section disentitling the accused to the concession of bail. Where such an inference about his guilt could not be drawn it would then be said a case of further inquiry covered under part 2 of section 497."

9. Keeping in view the principle laid down by the apex Court in supra report in order to deny the bail; the prosecution needs to establish prima facie case/reasonable grounds that accused is involved in the case fall under the Prohibitory Clause.

10. It is necessary to have a clear view about "prima facie case/reasonable ground". Prima facie case has been defined in the case of "Ghulam Hussain v. State" 1990 PCr.LJ 577 as under:- "Prima facie case which has not been defined anywhere means a case where charge against the accused is not groundless and there was a ground to proceed against him." Reasonable ground has been found in different cases. In a case reported as Tariq Bashir v. State PLD 1995 SC 34 the reasonable grounds are defined at page 41 as under:- "(8).

Reasonable grounds mean grounds which appeal to a reasonable and prudent man". In another case titled as Sikandar A. Akram v. State reported as 1995 SCMR 387 reasonable grounds was defined as follows:

"Reasonable ground is an expression which connotes that the grounds be such as would appeal to a reasonable man for connecting the accused with the crime with which he is charged, "grounds" being a word of higher import than "suspicion". However, strong a suspicion may be, it would not take the place of reasonable grounds. Grounds will have to be tested by reason for there acceptance or rejection. The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court, as it may possess or is expecting to possess as demonstrating evidence available in the case both direct and circumstantial. If such grounds exist tending to connect the accused with the crime, bail should be refused, without the need to go into a deeper appreciation of merits of those grounds and the evidence on which they are rested, which functions are to be assumed at the trial stage. However, if it is found that the charge is groundless, that is, to say unsupported by any evidence or instead of the grounds being reasonable, their 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 or transportation for life, as for example where it is a case of accidental and unintended death caused by simple hurt, the limitation on the courts' discretion is in favour of the grant of bail." In the present case, from cursory perusal of record it reveals that there exist reasonable grounds for connecting the accused with alleged offence i.e. i. FIR, ii. Statements of witnesses recorded under section 161, Cr.P.C. iii. Postmortem Report. iv. Medico legal report of accused/petitioner. v. Recovery of Cell Phone. vi. Call History. vii. Seizer of broken woods of door. viii. Statement recorded under section 164, Cr.P.C.

11. A perusal of material collected by Police shows that accused petitioner and co-accused were having illicit relations. The deceased having suspicion upon them who for verifying his doubt told his wife that he is going to Rawalpindi but did not go there. At about 10:00 p.m. he returned home by keeping silent and found the accused present in a closing room, knocked the door but it did not open, upon which he broke it and entered the room. Due to fear of disclosure of secret they killed the deceased. The allegation was supported by the statements of eye-witnesses recorded under section 161, Cr.P.C. The names of the eye-witnesses who were the real daughters of deceased but they are the natural witnesses and had no inimical towards the accused-petitioner, have fully corroborated the story. Medical evidence also supports the prosecution case. The statements of witnesses namely Master Asif, Muhammad Amjad and Irfan Advocate who are neighbors also corroborate the prosecution case. Recovery of the telephones from the accused and their call history supports the version of prosecution. The prosecution also seized the pieces of broken door from the place of occurrence which is an important piece of evidence. Moreover, accused also received injuries during the occurrence and after his arrest he was examined by the Doctor who issued a medical report regarding his injuries. Taking a tentative assessment of the available record, it can safely be concluded that there are reasonable grounds for believing that accused/petitioner is involved in the offence punishable with death fully covered by the prohibitory clause of 497(1), Cr.P.C., hence, petitioner is not entitled for bail.

12. The contention of the learned counsel for the accused/petitioner that case of petitioner falls in the purview of further inquiry has no substance as in every bail related case possibility of further inquiry exists but merely on the basis of possibility or further inquiry accused is not entitled for bail on the ground of further inquiry. In a case titled Abdullah Shah v. State 2002 PCr.LJ 1387, it has been held regarding further inquiry as under:-- "I may observe here that every hypothetical question which may creep into the mind and which could be resolved only after recording the evidence and during the trial would not make the case that of further inquiry. The case of further inquiry would only be made out when the data collected by the prosecution is not sufficient to provide reasonable grounds for believing that a prima facie case existed against the petitioner".

13. In the instant case there is overwhelming evidence against the accused/petitioner which prima facie connect him with the commission of alleged offence and no ground for further inquiry is available.

14. The case law cited by the learned counsel for accused petitioner are distinguishable from the facts and circumstances of the case, hence needs not to be discussed.

15. Before parting with the order, it may be observed that any observation in this order, being purely tentative in nature, shall in no way prejudice the proceedings before the learned trial Court where the case be decided strictly on its own merits after recording evidence. For the foregoing reasons, finding no force in this revision petition, it is hereby dismissed. JK/11/Sh.C (AJ&K) Bail refuse