' SYED HUSSAIN MAZHAR KALEEM, J.--- The above titled revision petitions is directed against the order of District Court of Criminal Jurisdiction, Kotli, dated 20-4-2006, whereby the petitioners were refused bail.
2. Brief facts leading to the background of the revision petitions are that a case under sections 324/337, 447, 147, 148, 149, A.P.C. Was registered at Police Station Khuiratta on the complaint of Karamat Ullah. It was reported that the complainant was a resident of Mahl Dhari. There was a dispute over a piece of land between Masood accused and the complainant and due to this the accused were inimical towards him. On 4-12-2005 Masood - accused removed stones nearby the house of complainant. In the evening he came to know about it and on 5-12-2005 at 7-00 a.m., when Masood accused came near the house of the complainant, he asked him as to why he removed the stones. This annoyed him and he attacked at complainant and inflicted injury at his head with a hatchet. The complainant fell down. On hue and cry Nazir Begum, Rashid, Shamim Akhtar, Shoukat and Karamat son of Chahloo came there to rescue him. Upon this Masood, Majid Sajid and Asghar armed with sticks entered into the courtyard of the house of complainant. Asghar accused inflicted injury at the head of Rashid with a sharp-edged weapon. Sajid accused caused injury at the head of Shamim Akhtar with a brick and also inflicted injury at the hands and other parts of the body of Nazir Begum. Masood accused inflicted injury at the hands of Muhammad Rashid while Asghar accused gave him kick and fist blows. Sajid and Majid accused were alleged to have caused injuries to Karamat Hussain and Shoukat. The occurrence was stated to be witnessed by Riyasat, Shafique and other residents of the locality besides the injured persons. On 7-12-2005 the complainant succumbed to the injuries and section 302, A.P.C. Was added.
4. The learned counsels for the petitioners argued at bar that the petitioners have been roped in a false case on account of enmity. The occurrence was not pre-planned and it took place all of a sudden thus, it cannot be said that the petitioners committed the offence in furtherance of common object. The learned counsel further argued that Muhammad Masood, Majid and Muhammad Asghar also sustained injuries during the occurrence and their medico-legal reports were available on record. According to the learned counsel a free fight took place and the matter was reported to the police by both the parties. F.I.R. No,256 of 2005 was lodged against the accused petitioners while F.I.R. No,257 of 2005 was registered against the complainant and others. In presence of the counter-version it cannot be said at this stage as to who was the aggressor. The learned counsel submitted that the prosecution suppressed certain important facts. The version given by the complainant was highly doubtful and the trial Court failed to appreciate that the case of the petitioners falls within the ambit of further inquiry, therefore, by accepting the revision petition they may be released on bail.
5. On the other hand, learned counsel for the complainant argued that the accused removed stones from the land of the complainant. The complainant asked him as to why he did so? Upon this he attacked him. The other accused persons also came there. They formed an unlawful assembly for committing the offence. The learned counsel further argued that the counter-version and injuries at the person of the accused petitioners shows their presence at the place of occurrence. A strong prima facie case exists against the accused petitioners, therefore, it cannot be said that the Court below has committed any error while refusing bail to them and submitted that the revision petition may be dismissed.
6. I have heard the learned counsel for the parties and gone through the record of the case.
7. A perusal of the record shows that after their arrest the accused petitioners moved an application under section 497, Cr.P.C. Before the trial Court. The application was dismissed by observing that the case was proceeding on day to day basis and early disposal of the same instead of deciding the bail application would be in the interest of the parties and justice, therefore, the application being premature was held to be dismissed.
8. It may be mentioned here that irrespective of the fact that the case was proceeding on day to day basis or otherwise the bail application moved under section 497, Cr.P.C. Had to be decided on merits. The observation made by the trial Court thus, runs counter to law and there was no justification to hold the application premature. It appears that the District Court Criminal Jurisdiction, failed to appreciate the law in its true perspective. The relevant provisions of law are usefully reproduced:--
497. When bail may be taken in case of non-bailable offence.---(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years: ' Provided that the Court may direct that any person under the age of sixteen years or any woman.
Or any sick or infirm person accused of such an offence be released on bail: ' Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause only he should not be so released.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) An officer or a Court releasing any person on bail under subsection (1) of subsection (2) shall record in writing his or its reasons for so doing.
(4) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.
9. In presence of aforesaid state of facts the matter should have been remanded to the trial Court to pass orders in accordance with law but keeping in view the overall circumstances and also to avoid delay and an exercise in futility I intend to decide the matter myself.
10. A careful consideration of the record shows that on 4-12-2005 Masood Ahmad accused petitioner removed stones nearby the house of the complainant. In the evening he came to know about it and on 5-12-2005 at 7-00 a.m. When the accused came near his house he asked him as to why he removed the stones. Upon this the accused attacked the complainant and inflicted injury at his head with a hatchet. Thus, it becomes clear that the other accused petitioners were not present at the place of occurrence at that time and later on they came there. In this view of the matter prima facie it appears that the occurrence was not premeditated, therefore, the question of commission of offence in furtherance of common intention needs serious consideration.
11. It may be mentioned here that Masood, Majid and Muhammad Asghar accused sustained injuries during the occurrence but this fact was suppressed by the eye-witnesses. However, medico-legal reports pertaining to them were place on record and a counter-report regarding the same occurrence was also made by Masood accused petitioner, upon which a case vide F.I.R.
No,257 of 2005 under sections 324/447, 147, 148, 149, 504, A.P.C. Was registered against the complainant and others at Police Station, Khuiratta.
12. In light of the facts listed in paras. Nos.10 and 11, I am of the opinion that the individual role of each of the accused person in the occurrence is important to decide the question of bail. Masood accused petitioners is alleged for causing fatal injuries at the person of the deceased, therefore, he is not entitled to concession of bail while the case of other accused petitioners is quite distinguishable. Sajid accused has not been ascribed an active role whereas Majid and Muhammad Asghar sustained injuries during the occurrence which were not explained by the prosecution, thus, their case falls under subsection (2) of section 497 to the Cr.P.C.
13. The upshot of the above discussion is that Muhammad Asghar, Majid and Sajid accused petitioners are admitted to bail. They shall be released from custody provided they furnish bail bonds in sum of Rs,5,00,000 each an personal bonds in the like amount to the satisfaction of any Magistrate 1st Class, Kotli.
14. Before parting with the case, I however, would like to make it clear that any observation made by this Court at this stage be only taken as tentative. The trial Court shall be free to have an independent view of the case while deciding it on merits.