The above titled appeal has been directed against the order of District Criminal Court Sudhnoti dated 1.12.2007 whereby, the petition for bail after arrest was disallowed by the said Court.
2. The brief facts forming the background of the instant appeal are that, complainant Akhtar Hussain lodged an FIR at Police Station Baluch stating therein that accused Shahzad, Naeem and Murtaza quarreled with his nephew and beaten him against which the FIR was lodged. The accused-persons, Sufi Nawaz and Qasim asked the complainant to resolve the matter between the parties amicably and the date was fixed for the meeting for 25.9.2007. On the aforesaid date at about 10 a.m., Muhammad Javed along with Zahid, Sajjad, Nazar Muhammad, Wazir Muhammad, Mushtaq and Muhammad Khaliq were present in Jirga. The Accused No, 1, Muhammad Razzaq, Abdul Qayyum, Sufi Nawaz and Ashaq were also present in the Jirga. They were waiting for the arrival of the opposite party but they did not turn up. Muhammad Amin, asked accused Sufi Nawaz that you have undertaken the liability of the opposite party and they have come here. On hearing this, the accused, Muhammad Razzaq started abusing him and after some time he pulled out his pistol and fired at Muhammad Javed which hit upon his head and he fell down upon the ground and succumbed to the injuries. Accused, Abdul Qayyum fired at the complainant which hit on his neck. Meanwhile, the other accused-persons who were hiding in maize farm came out and accused Naeem fired a bullet shot upon Sajjad which hit his left thigh. Accused Makeem threw stones upon the complainant party and the other accused persons fired with their pistols. This incidence took place with conspiracy of the accused Sufi Nawaz and Ashaq.
3. On this report a case under Sections 302/324, 337/34,109, APC and 13/20/65 Arms Act was registered against the accused-petitioner and co-accused. After registration of the case, the accused-petitioner moved an application for bail before arrest before District Criminal Court Sudhnoti. The said Court after hearing the parties disallowed the same and the accused-petitioner were arrested. The accused-petitioner moved an application for bail after arrest and the same was met with the same fate vide its order dated 1.12,2007. It is the aforesaid order which has been assailed through the instant appeal.
4. Malik Nazir Ahmed Khan, the learned Counsel for the accused-petitioner argued that the trial Court committed grave illegality while disallowing the concession of bail to the accused-petitioner.
The learned Counsel contended that the FIR has been lodged after the delay of three days without showing any reasonable explanation and his client has been, falsely implicated in the case because the petitioner himself has been victim of firing by the opposite party. The learned Counsel submitted that the allegation of firing has been ascribed against the accused-petitioner, but at that time he was unconscious due to fracture of head injury. The learned Counsel zealously argued that two independent witnesses have sworn affidavits in support of the version of the accused- petitioner but the trial Court failed to consider the same without any reasonable justification. The learned Counsel further contended that there are two counter versions between the parties therefore, the accused-petitioner is entitled to the concession of bail as he is behind the bars for the last four and half months.
5. Sardar Abdul Hameed, the learned Counsel for the complainant argued that the trial Court has rightly disallowed the concession of bail to accused-petitioner which warrants no interference by this Court. The learned Counsel further contended that the accused-petitioner is nominated with his specific role in promptly lodged FIR therefore, he is not entitled to any concession of bail at this stage. The learned Counsel submitted that there is sufficient proof on record to connect the accused-petitioner with the alleged offence thus, the appeal may be dismissed. The learned Counsel defended the impugned order on all counts.
6. Raja Gul Majeed Khan, the learned A.G, has fully supported the arguments raised by the learned Counsel for the complainant.
7. I have heard the learned Counsel for the parties and perused the relevant record with utmost care.
8. According to the FIR a quarrel took place on 23.9.2007 between Zahid, the nephew of complainant and accused-petitioner, Shahzad, Naeem and Murtaza. The matter was reported to the Police Station Pallandri, however the accused party sought time to settle the matter through Jirga on 25.09.2007. It is further stated that on the aforesaid date all the members of Jirga including the accused Abdul Qayyum being member of that Jirga gathered for the settlement at 10 a.m. but no one from opposite party reached there. It is further alleged that on pointing out of the absence of the party, Accused No, 1 Muhammad Razzaq started abusing and thereafter, he fired at deceased Javed while petitioner fired at him causing a simple injury.
9. It appears from the record that petitioner has also taken the plea of defence stating therein that he was appointed as (Munsaf) of the said Jirga for the settlement of a dispute between two tribes, but unfortunately he was suddenly attacked resulting into fracture of skull bone. The version is supported by an application on page 29 of the file addressed to District Criminal Court Pallandri for redressal of the grievance.
10.The perusal of the record shows that the prosecution has itself admitted in concluding part of the challan submitted under Section 173 Cr.P.C., that accused Razzaq and Qayyum also received injuries in the incident. The Medical report appearing on page 39 also speaks out of the injuries received by the petitioner on the same day and at the same time of occurrence.
11.It is settled principle of law that deeper appreciation of evidence and law is not advisable at bail stage, however, the matter cannot be decided in vacuum so therefore, in bail matters only tentative assessm ent of the material available in shape of FIR, statement of witnesses, Medical report and other evidence collected during investigation including the plea in defence has to be taken into consideration.
12.It transpires from the report under Section 173, Cr.P.C. that apart from complainant the petitioner has also received the injuries on the same day of occurrence which are substantiated by the Medical report placed on page 39 of the file as such, there appears two versions of the case, in which time of occurrence and dispute is the same. Therefore, in said with certainty, as to who was aggressor and who was aggressed upon as such -Vie matter falls within the ambit of further inquiry.
13.For the reasons listed above, accept this appeal, by setting aside the impugned order and it is ordered that the accused-petitioner shall be released forthwith on furnishing bail bonds in sums of Rs, 2,00000/- (Two Lac) consisting of two solvent sureties and personal bonds in the like amount to the satisfaction of any member of Tehsil Criminal Court of Sudhnoti/Muzaffarabad, if he is not involved in any other case or offence.