1. This revision petition has been directed against an order of District Criminal Court Mirpur dated 15.01.2008, whereby the Court below agreed with the order passed by the learned Tehsil Qazi and allowed bail to the accused-respondent.
2. The facts precisely stated are that Mst. Musarat Saeed deposed before the police at D.H.Q Hospital Mirpur that on 15.04.2007 she along with her husband Saeed Ahmed was present at her home. The accused Muhammad Iqbal is also residing in other part of the house whereas his two other brothers are residing in the same house. On the fateful day at about 06:45 p.m, her husband asked Muhammad Iqbal that his wife is a Parda observing lady, therefore, he should not invite the strangers at his residence. Thereupon the accused got enraged and launched an attacked upon her husband with a Danda along with his son and wife. The accused-persons started striking Danda upon the head of her husband with an intention to do away with his life. The complainant further stated that when she went to rescue her husband, Wasim Iqbal caught hold of her legs and the daughters of accused caught hold of her neck and hairs so that she could not help her husband.
3. The motive behind the occurrence has been stated to be that Muhammad Iqbal often used to invite strangers who have been sitting in their Courtyard late at night which was not liked by her husband.
4. On this report, finding the injured Saeed unconscious and after recording his injuries, a Marasla was sent to police station Thothal where a F.I.R No, 55/07 was registered on the same day at 07:45 p.m in offences under Section 324/34, A.P.C. After necessary investigation the challan was presented before Tehsil Criminal Court Mirpur under Sections 324/34, 337F-6 and 337A-3, APC on 07.06.2007.
5. After apprehension, the accused-respondent filed a bail application on 29.06.2007 which was allowed by the learned Tehsil Qazi alone vide order dated 05.07.2007. The aforesaid order was set- aside by District Criminal Court vide its order dated 07.11.2007 and the bail petition was remanded for a fresh decision. During the second round of hearing of the bail petition, the difference of opinion arose between both the learned members of Tehsil Criminal Court Mirpur. The learned Tehsil Qazi allowed the concession of bail to the accused-respondent whereby in the opinion of the learned Civil Judge the accused-respondent was not entitled to be released on bail vide their orders dated 10.12.2007. Consequently, a reference was sent to learned District Criminal Court Mirpur whereby the learned District Criminal Court, agreed with the opinion of the learned Tehsil Qazi vide its order dated 15.01.2008. Resultantly, bail was allowed to the accused-respondent. The above mentioned order dated 15.01.2008 has been assailed through the instant revision petition.
6. Raja Inamullah Khan, the learned counsel for the complainant/petitioner vigorously argued that the learned Tehsil Qazi as well as the learned members of the District Criminal Court Mirpur fell in grave error while allowing the concession of bail to the accused-respondent who launched a murderous attack upon his real brother and severely injured the injured/petitioner who remained unconscious for many days in Alshifa International Hospital, Islamabad. The learned counsel pointed out that the accused-respondent caused injuries upon the head of the complainant and upon both of his legs, which have been fractured. The learned counsel agitated that the multiple injuries upon the head and fracture of both the legs of the petitioner prove the intention of the accused-respondent. The learned counsel referred to me the medical examination report of the petitioner and submitted that the accused-respondent used Danda of base ball which was quite sufficient to do away with the life of the complainant. The learned counsel maintained that the sentence of ten years has been provided in offence under Section 337 A-3, A.P.0 along with Ursh which shall be 10% of Diyat, whereas the sentence of seven years has been provided under Section 337 F-6, A.P.C. whereby sentence of ten years along with fine can also be awarded under Section 324, A.P.C, therefore, the case of respondent falls in preview of prohibitory clause of Section 497, Cr.P.C. The learned counsel pressed into service the submission that the accused-respondent is nominated in F.I.R and medical evidence fully supports the prosecution version whereas the eye- witnesses are natural because occurrence took place inside of the house of the parties. The learned counsel prayed that the respondent has committed a heinous offence but the Court below exercised its discretion in an arbitrary and fanciful manner, therefore, the concession of bail may be recalled. In support of the arguments, reliance was placed upon, 1997 SCR 223.
7. Muzaffar Ali Zaffar, Addl.A.G appearing on behalf of the state, fully owned and supported the arguments raised by the learned counsel for the petitioner and submitted that the injuries on the head of the petitioner and fracture of his both of legs are strong proof of the intention of murderous attack by the accused-respondent. The learned state counsel pointed out that the accused- respondent is misusing the concession of bail who always threatens the petitioner and his wife, therefore, it is a fit case for the cancellation of bail.
8. Conversely, Ch. M. Jamil, the learned counsel appearing on behalf of the accused-respondent submitted that one of the accused Waqar has been extended the benefit of Section 169, Cr.P.0 whereas bail has also been allowed to Muhammad Iqbal co-accused, therefore, the principle of equality demands that the concession of bail may also be maintained to the extent of the accused-respondent. The learned counsel pointed out that the alleged occurrence took place on 15.04.2007 whereby the statements of the P.Ws recorded under Section 161, Cr.P.0 have been recorded on 21.04.2007, therefore, belated statements cannot be relied upon. The learned counsel contended that it has also been proved by the statement of the complainant that he launched an attack upon the respondent while going to the courtyard of his house. The learned counsel agitated that the prosecution story is doubtful and suspicious and it is yet to be ascertained that which party is aggressor and which has been aggressed upon because accused-respondent also sustained injuries but the prosecution suppressed his injuries. The learned counsel laid great stress upon the point that no impartial witness has been produced by the prosecution and the accused- respondent remained behind the bars for four months. The challan has been presented before the trial Court and the trial is in progress, therefore, the question of the misusing of bail does not arise.
9. The learned counsel finally submitted that the bail cannot be withheld as punishment; therefore, the concession of bail may be maintained.
10. At the very out set, it will be relevant to point out that at the bail stage, the Court is permitted only to consider the material placed before it by the prosecution, with a view to form an opinion whether reasonable grounds exist for believing that the accused was guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, if there is a, prima- facie, case against an accused then he is not, entitled to be released on bail.
11. Coming to the instant case, the F.I.R was reported at D.H.O Hospital Mirpur without any delay by the wife of the injured/petitioner while he was unconscious on account of severe and merciless beating. The complainant suffered multiple injuries on his head and fracture of bony skull involving frontal bone, frontal sinus, squamous temporal, mastoid temporal and floor of middle cranial fossa along with comminuted fracture of both of his legs. In this manner, prima-facie, the medical evidence corroborates the ocular version. It also, prima-facie, appears from the prosecution story and the material collected by the investigating agency that the respondent launched a murderous attack by causing severe injuries with a Danda of base ball which was used with full vigour. The weapon of offence has also been recovered on the pointation of the respondent. The eye- witnesses are natural, therefore; the case against the respondent falls in prohibitory clause of Section 497, Cr.P.0 and in such like cases of grave nature the bail cannot be granted B in a routine matter on a mere ground that the challan has been presented and the accused is detained for the last four months. In this manner the findings of the learned District Criminal Court are fake and arbitrary exercise of discretion against the admitted principles of law governing the bail matters, thus, cannot be sustained.
12. I cannot subscribe this view of the learned counsel for the respondent that at this stage on ground of belated statements recorded F by the police under Section 161, er.P.0 or on application of principle of equality, which is not available to the respondent, the respondent is entitled to remain enlarged on bail. It is admitted principle of criminal law that at bail stage it is not permissible to dive deep into the merits of the case or the material collected by the investigating agency, but only the cursory perusal of the prosecution evidence and material collected by the investigating agency has to be taken into consideration. The intention of the accused can be judged by the injuries sustained by the petitioner. The weapon of offence, a Danda of base ball is sufficient to cause grievous injuries on vital parts of the body of the petitioner, therefore, an inference as to the intention of the accused can be drawn by repeated injuries of the Danda of base ball caused to the victim. In such state of affairs, a prima-facie, case of attempt to murder has been made out and it does not require any further enquiry, therefore, the impugned order is not sustainable.
13. The nutshell of the above discussion is that I accept this revision petition and set-aside the order recorded by learned Tehsil Qazi dated 10.12.2007 and also the impugned order of District Criminal Court Mirpur dated 15.01.2008. Consequently, the concession of bail is recalled. The accused- respondent shall be arrested and be detained in judicial lockup.
14. The revision petition stands disposed of in the manner indicated above.