Above titled revision petition is directed against the order of Additional District Court of Criminal Jurisdiction, Kotli, dated 23-012008, whereby the petitioners were refused bail.
2. Brief facts leading to the background of the revision petition are that a case under Sections 302/324,337,147,148,149, A.P.0 and 13/20/65, Arms Act was registered at Police Station, city Kotli on the complaint of Muhammad Anees. It was reported that on 22-08-2007 at about 6.00, p.m after closing the shop, Dawood Ahmed was going back to home. Muhammad Idrees, Tahir Saleem and the complainant were also with him, when they reached at Sarsawa Chowk, Muhammad Razzak, Muhammad Rashid, Muhammad Siddique, Hamid, Sohail, Shafique, Khaliq alias Qari and Abdul Qayyum armed with Kalashnikovs came across. They raised lalkara and opened attack.
Muhammad Razzaq fired at Dawood Ahmed and caused injuries at his forehead while Muhammad Rashid accused fired from the right side of the victim which hit him at different parts of his body. He fell down and died at the spot. Muhammad Idrees tried to hold his uncle Dawood Ahmed, upon which Sohail Ahmed fired and caused injuries at his back resulting into his death. Meanwhile Hamid accused fired and Caused injuries at the right thigh and back of Tahir Saleem. The complainant tried to stop the accused persons upon which Muhammad Shafique and Abdul Khaliq accused petitioners fired and caused injuries at his left leg and he also fell down. Hue and cry and sound of the fires attracted Hafiz Mehboob, Awais Ahmed, Muhammad Jahangir, Muhammad Ashfaq, Shoukat and other residents of locality to the spot and they witnessed the occurrence. Motive was a dispute over a piece of land.
3. After their arrest, the accused petitioners applied for bail before the trial Court which was refused through the impugned order, hence this revision petition.
4. Learned Counsel for the petitioner argued that due to a dispute over piece of land an enmity was prevailing between the parties. The said offenders absconded after committing the murders due to which the complainant concocted a story and the present petitioners being their close allies and relatives were roped in a false case. Muhammad Shafique and Abdul Khaliq accused-petitioners were alleged for causing fire arm injuries at non-vital part of the body of complainant. They were not ascribed any overt act towards the deceased persons, thus the question that whether they were intending to commit the murder or shared common intention with the offenders needs serious consideration. Muhammad Shafique accused-petitioner was suffering from Hepatitis-C and 'was unable to get proper treatment in judicial lock-up. Abdul Qayyum accused-petitioner was attributed role of aerial firing and raising lalkara. Neither he caused injuries to the victims nor did any act to facilitate the others and his presence at the place of occurrence was doubtful.' The prosecution story to the extent of present petitioners being improbable was that of further inquiry.
Thus, the impugned order being incorrect and against law and principles governing bail matter was not sustainable, therefore, by accepting the revision petition the same may be set aside and the petitioners be released on bail.
5. On the other hand, it was argued that the occurrence took place during broad day light.
Identification of the accused-petitioners was not in doubt. They were nominated in promptly lodged F.I.R and were alleged to have caused injuries at the person of the complainant, their presence at the place of occurrence at relevant time was established by the eye-witnesses and the same was supported by post mortem reports, medical report pertaining to the victim and recovery of the weapons of offence. It was further corroborated by Forensic Science Expert report that crime empties seized from the place of occurrence were fired from the weapons recovered at the instance of Muhammad Shafique and Abdul Khaliq accused-petitioners. Sufficient material showing that the offence was committed in furtherance of common intention was also brought on record, there was nothing suggesting further probe and prima facie the accused-petitioners were connected with the offence of murders, thus it cannot be said that the Court below committed any error while refusing bail to them. The impugned order being correct and in accordance with law and principles governing bail matter needs no interference, therefore, 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. The prosecution alleged Muhammad Shafique and Abdul Khaliq for causing fire arm injuries at the person of the complainant.
The allegation was supported by medical report pertaining to the victim and recovery of weapons of offence at their instance. Another confirmative circumstance was that some of the crime empties seized from the place of occurrence were found to have been fired from the said weapon, thus prima facie presence of the above mentioned petitioners at the spot at relevant time was established and they were involved in the occurrence in which three innocent persons lost their lives while the complainant also suffered fire arm injuries at their hands.
8. It is important to note that Abdul Qayyum accused-petitioner was alleged for aerial firing and raising lalkara, a Kalashnikov used by him and crime empties from the alleged aerial firing was seized by the police but surprisingly the articles were not sent to Forensic Science Laboratory for expert opinion. The petitioner was not attributed any overt act towards the victim and in view of the fact that an enmity was prevailing between the parties, it cannot be ruled out that being a close relative of the accused party he might have been roped in the case by the complainant. The prosecution may bring home guilt of the accused during trial and prove that he shared common intention with principal offenders but at this stage prima facie the case against him requires further probe.
9. Another submission of the learned counsel for the accused petitioners was that Muhammad Shafique was suffering of Hepatitis-C, the point was agitated before the Court below but it was dealt with in ordinary manner. It may be observed here that the under trial prisoners are always at the mercy of trial Courts and the jail authorities, neither they can consult any doctor nor can visit any hospital without their permission, thus it is very difficult for them to collect evidence in support of the plea of ailment. Thus, the proper course is to get them examined from a board of doctor or subject specialist and to address the issue after seeking opinion and recording statement of the examiner regarding nature of ailment and that whether the same can be treated while keeping the patient under custody or not. In this view of the matter, it is directed that if Muhammad Shafique accused-petitioner files a fresh bail application under the first proviso of sub-section (1). of Section 497, Cr.P.0 the same shall be disposed off in light of the above mentioned observation.
10.Upshot of the above discussion is that the bail is granted to Abdul Qayyum accused-petitioner.
He shall be released from custody on furnishing bail bond in, sum of Rs, 5,00,000/- (five lac) and personal bond in the like amount to the satisfaction of any Magistrate 1st Class Kotli while the revision petition to the extent of Abdul Khaliq and Muhammad Shafique stands dismissed.