As the above titled revision petitions arise out of the same incident and judgment; therefore, these have been consolidated and will be disposed off by this single judgment.
The brief facts forming the background of instant revision petitions are that Muhammad Raheem Khan, complainant, lodged an F.I.R on 21.12,2002 at 9:45 p.m. at Police Station Rawalakot District Poonch alleging therein that at midnight of 20th & 21st'. December 2002 at 1:00 p.m. four persons entered into his house, shut the main switch of power and went towards Mst. Fatim Jan wife of Pervaiz Akhtar. They injured her hand with a knife. Meanwhile, on alarm Mst. Sakhi Begum was attacked with a knife in the light of a torch, who sustained severe injuries and died after one and half hour of the occurrence. The accused-persons also launched an attack upon Mst. Zahurat who sustained simple injuries on her leg. On making hue and cry, the complainant reached at the spot with other persons.
On this report, a case under Section 302, 458, 324 & 34 APC was registered.
After usual investigation, an offence under Section 10, The Offence of Zina (Enforcement of Hudood)
Act, 1985 was added and the petitioners alongwith other accused-persons were challaned before District Criminal Court Rawalakot on 20.4.2003.
The accused-petitioners filed a bail application before District Criminal Court on 12.10.2006, which was dismissed vide order dated 18.4.2007. It is the aforesaid order, which has been assailed through two separate revision petitions, titled above.
Muhammad Asif Kayani, the learned Counsel arguing on behalf of Muhammad Zareen accused- petitioner submitted that the petitioner was involved in a fake case. The learned Counsel further contended that the statement of Mst. Zahurat under Section 164, Cr.P.O was recorded after 23 days of the occurrence, which was retracted on the first opportunity at the time of framing of the charge; therefore, it cannot be relied upon having no corroborative value against the accused-petitioner.
The learned Counsel further maintained that the belated recoveries of blood-stained daggers are not reliable because according to learned Counsel, with the passage of time blood disintegrates and cannot remain present on the weapon of offence. The learned Counsel also criticized other recoveries of incriminating articles and submitted that the expert reports of serologist and chemical examiner were not obtained about the semen of accused-persons alongwith vaginal swa b of Mst. Zahurat and her clothes having seminal stains; therefore, it could not be proved that the accused-petitioner committed `Zina' with Mst. Zahurat. The learned Counsel pressed into service the submission that the investigating agency did not take into possession the used condom and in the light of postmortem report the sleeping pills were not found in the stomach of Mst. Sakhi Begum, deceased. The learned Counsel pointed out that no eye-witness is available in the instant case, the accused-persons were not named in the F.I.R., they were not arrested at the spot and they were never subjected to any identification parade; therefore, their involvement on the basis of retracted confession allegedly made by co-accused Mst. Zahurat, is not by itself sufficient to implicate the accused-persons with the commission of offence. The learned Counsel laid great stress upon the point that an important witness of the prosecution, Mst. Begum Jan (P.W.5) was given up who was allegedly sleeping with the deceased on the same cot at the time of occurrence, which makes the prosecution story suspicious and doubtful. The learned Counsel finally submitted that the trial Court failed to appreciate the prosecution evidence and exercised its discretion in a vague and fanciful manner; therefore, the impugned judgment may be set aside and the accused-petitioner may be enlarged on bail, who is confined in jail for the last six years. In support of his arguments, the learned Counsel referred to me the following authorities:--
1. PLD 1983 F.Sh.0 204.
2. 1989 P Cr.L J (Lahore) 574.
3. PLD 1996 (Lahore) 295.
4. 2000 MLD (Peshawar) 961.
5. 2003 SCR 496.
Sardar Khan, Advocate, the learned Counsel appearing on behalf of Muhammad Zubair accused- petitioner owned the arguments raised by Muhammad Asif Kayani, the learned Counsel for Muhammad Zareen petitioner and submitted that the perusal of evidence recorded by the trial Court and remaining evidence which the prosecution intends to produce, does not connect the accused-petitioner with the commission of offence and it is a case of inordinate delay whereby the accused-persons are facing trial for the last six years and the evidence of the 13 prosecution witnesses is yet to be recorded. The learned Counsel agitated that the recoveries of daggers and the clothes have been made after 19 days of the occurrence; therefore, cannot be relied upon and the prosecution also could not prove the presence of blood of Mst. Sakhi Begum upon the daggers allegedly recovered from the accused. The learned Counsel strenuously contended that co- accused Mst. Zahurat has been enlarged on bail by the Apex Court; therefore, principle of equality demands that the accused-petitioners should also be enlarged on bail. The learned Counsel for the petitioner pointed out that a subsequent bail petition can be presented on fresh grounds and can also be entertained by the Court. The learned Counsel finally submitted that there is not an iota of evidence against the accused-person to involve him in the commission of offence and the prosecution case is improbable and unconvincing; therefore, the accused-persons are entitled to the concession of bail. In support, reliance was placed upon the following case law:--
1. 1985 SCM R 1573.
3. 1994 SCR 32.
4. 1997 SCR 125.
5. 1999 P.Cr.L.J 549.
6. 2001 SCR 286.
Sardar Shamshad Khan, the learned Counsel for the complainant controverted the arguments raised by the learned Counsel for the accused-petitioners and submitted that the accused- petitioners were not nominated in the F.I.R because the complainant had no grudge or animosity against them. According to the learned Counsel, the accused-petitioners were implicated in the case on the statement of Mst. Zahurat recorded under Section 164, Cr.P.C. The learned Counsel pointed out that the empties, recovered from the spot, were found to be fired by the pistol recovered at the instance of accused-persons and the daggers, clothes of the accused-persons were also found stained with human -blood in the light of report of chemical examiner. The learned Counsel further maintained that the case of prosecution finds much support from the deposition of Peryaiz Akhtar P.W. whereby he stated that Mst. Zahurat testified before him that at the time of occurrence, she identified the accused-petitioners. The learned Counsel argued vehemence that the evidence of Muhammad Rasham (P.W.11) and Muhammad Riaz (P.W.21) fully proves the recoveries of incriminating articles recovered by I.O. The learned Counsel finally submitted that accused-petitioners hove committed heinous offence of murder; therefore, they are not entitled to the concession of bail.
Sardar Muhammad Azeem Zia, the learned Addl. A.G. appearing on behalf of the State opposed the bail petitions and supported the arguments, raised by the learned Counsel for the complainant.
I have very carefully attended to the submissions made at Bar and perused the record made available. It is admitted position on the record that the challan in this case was presented on 28.4.2003 and the evidence of only seven prosecution witnesses has been recorded so far whereas the prosecution has abandoned fifteen prosecution witnesses. The bail petition on behalf of accused-petitioners was filed on 12.10.2006, which was decided on 15.4.2007, meanwhile, the evidence of Muhammad Raheem (P.W.2), Mst. Fatim Jan (P.W.3), Shahid Akhtar (P.W.4), Javaid Akhtar (P.W.6), Rasham Khan (P.W.11) and Muhammad Riaz (P.W.20) was recorded till 14th. April 2007; however, the evidence of Pervaiz Akhtar (P.W.7) was recorded on 23.4.2007, . after passing the impugned judgment; therefore, the prosecution evidence recorded by the trial Court before recording the impugned judgment alongwith other material collected by the investigating agency has to be prima-facie examined and evaluated, as held in Babar Hussain's case (1999 SCR 507).
A cursory perusal of the F.I.R, prosecution evidence recorded by the trial Court, the statements of P.Ws. recorded under Section 161, Cr.P.0 and the other material collected by the investigating agency reveals that no prima-facie case has been made out against the accused-petitioners. The accused-persons were arrested on 26.12.2002 but the trial has not concluded yet. The accused- persons were not nominated in the F.I.R. They were not arrested on the spot. They were not subjected to any identification parade. Neither the specimen of semen of the accused-petitioners nor the vaginal swa b or clothes of Mst. Zahurat stained with semen were sent to serologist for identification of the persons committing `Zina'; therefore, it is yet to be determined that the accused-petitioners committed `Zina' with co-accused Mst. Zahurat or not. In this era of scientific development when facilities for grouping of semen are easily available, the lonely report of chemical examiner' that the c1 )ths of Mst. Zahurat were found stained with semen or the accused-petitioners are potent for performing sexual intercourse is prima-facie not by itself sufficient to connect the accused-persons in a case of `Zina'. Furthermore, according to lady doctor Talat Sadiq (P.W.8), the medical examination of Mst. Zahurat co-accused was found negative and it was not proved that `Zina' was committed with Mst. Zahurat on the relevant day.
While considering the importance of the report of Serologist in the case titled Mst. Ehsan Begum V.
State (PLD 1983 F.Sh.0 204)., it was opined that:-- "If there had been evidence based on grouping that the seminal stains on the Shalwar or on the vaginal swa bs were of Zaman Shah it would have been sufficient for convicting both the appellants under Section 10 for commission of the offence of `Zina.' In the absence of such evidence however this cannot be done. The case under Section 10 is not proved on the record."
Similar question arose before Apex Court of AJ&K in case reported as Muhammad Mushtaq V. State (2001 SCR 286) wherein it was observed as under:-- "It may also be clarified that during the post-mortem some pellets were recovered from the dead body of the deceased but the same were also not sent to ballistic expert to obtain his opinion as to whether they were of the 12-bore gun and used by the gun recovered from the accused. Even this recovery does not corroborate the story of the prosecution. The clothes of the deceased which were also stained with blood, no report of Serologist was obtained to ascertain that the blood was that of a human being or that the grouping of blood found on the clay and the clothes of deceased matched with each other. Therefore, in the above circumstances the aforesaid recoveries do not have corroborative force lending any support to the prosecution version."
It is further admitted on the record that weapons of offence, the daggers allegedly recovered at the instance of accused-petitioners were taken into possession after 19 days of the occurrence, which were allegedly found blood-stained; therefore, it is yet to be ascertained as to whether the accused-petitioners kept the recovered, articles in their possession for 19 days and did not dispose them off particularly when they did not abscond and had ample opportunity to get rid of the aforementioned articles. My this view finds support from a case titled, Mujahid Hussain V. State (1985 SCM R 1573), wherein the incriminating articles were recovered after 4 days of the occurrence but Apex Court did not rely upon the evidence of recovery and acquitted the accused of the charge.
It is also yet to be determined as to whether the blood can remain alive on the daggers for 19 days and it cannot disintegrate with the passage of time. The evidentiary value of such type of recovery has also to be taken, into consideration, which was not relied upon in Muhammad Ismail's case (.1999 P Cr.LJ 549) in the following manner:-- "The recovery of Chhurra Exh.P.3 after 18/19 days of the occurrence is of little consequence as with the passage of time the blood would disintegrate and to claim that it was still 'stained with blood at the time of recovery is nothing but a vain attempt on the part of the prosecution to implicate the appellant."
It is also on the record that neither the poison was deducted from the stomach of the deceased nor any used condom was taken into possession; therefore, it requires further probe about the report of chemical examiner that the Shalwar of Mst. Zahurat is stained with semen or the earth recovered from the place of occurrence, clothes of the deceased and daggers are stained with blood, implicate the accused with the commission of offence without the positive report of Serologist but in the instant case according to the report of serologist, the grouping of semen upon the Shalwar of Mst. Zahurat could not be ascertained because of insufficient material whereas other articles stated, above were not sent to the serologist for grouping of blood or semen.
Now, the question arises whether the retracted confession of Mst. Zahurat Begum recorded after 24 days of the occurrence, who has been enlarged on bail from the Apex Court, is by itself sufficient to refuse the concession of bail to the accused-petitioners. It is admitted principle of criminal jurisprudence that statement of an accomplice implicating the co-accused certainly falls within the ambit of further inquiry, which gives entitlement to bail. (2000 M LD 961). It has been held in Arshad Mehmood's case (1989 PCr.LJ 574) that a conviction cannot be based on retracted confession unless it is corroborated by independent witness or unimpeachable evidence, after taking into consideration all the facts and circumstances of the case.
A similar preposition came under consideration before the Apex Court of AJ&K in a case titled Mst.
Zahurat V. Muhammad Raheem Khan (2003 SCR 496), wherein while dealing the bail petitioner of co-accused Mst. Zahurat, maker of retracted confession in the instant case, it was observed at page 502 of the report in the following manner:-- "That no evidence whatsoever was proposed to corroborate the confessional statement except the recovery of alleged Shalwar stained with semen which was taken into possession after 13 days of the occurrence and it also requires further inquiry as to whether the said Shalwar belongs to the appellant and semen is also that of accused persons, who according to prosecution, committed `Zina' with appellant."
I cannot subscribe to the view of the learned District Criminal Court that no fresh ground is available in the instant case. It is necessary to mention here that previous bail application was filed on 9th March 2004, thereafter evidence of five prosecution witnesses was recorded and the prosecution abandoned fifteen prosecution witnesses. Therefore, the F subsequent bail application was competent and the learned Court below was legally obliged to examine the evidence produced by the prosecution alongwith the proposed evidence which prosecution intends to produce against the petitioners but the trial Court failed to apply its judicial mind while exercising its discretion.
It is an enriched principle of criminal jurisprudence that at the bail stage, the Court cannot dive deep into the merits of the case but at the same time Courts are not expected co make an order in vacuum. The Courts always summarily assess the material so collected by the prosecution in order to find out whether an accused-person is prima-facie involved in the commission of an offence punishable with death or imprisonments for life and where no prima-facie case is made out against the accused, the bail may be allowed to him.
In the case of Muhammad Naseem Khan u. State (1995 SCR 237), it was held that at the bail stage the trial Court was obliged to look F.I.R., the statements recorded under Section 161, Cr.P.C. the medico legal report, the evidence recorded by the trial Court and the defence plea if any but the close scrutiny and deep appreciation of the evidenceis not permissible; however, its tentative assessm ent is not prohibited. After all the Courts are not supposed to pass an order on bail application in the air but on the basis of some material and data 11 available. It may also be pointed out that mere heinousness or gravity of offence itself is no ground for refusal of bail.
It is also admitted principle of criminal law that even for the purpose of bail, the law is not to be stretched in favour of the prosecution and if slightest doubt arises, its benefit must go to the accused even at the bail stage, Kareem Dad V. Zaheer & another (2004 SCR 36). Pursuant to the above discussion, in the instant case, the accused-petitioners were not named in the F.I.R. They were not apprehended at the spot. The record does, not show that they were previous convicts. No eye-witness is available. The occurrence was of a dark night. The petitioners were not subjected to any identification parade. The Apex Court has enlarged the co-accused Mst. Zahurat, the maker of retracted confession, on bail. The accused-petitioners are behind the bars for the last six years and the trial has not concluded yet. Keeping in view the evidence recorded by the trial Court and the proposed evidence which prosecution intends to produce, reasonable grounds do not exist to connect the accused-petitioners with the commission of offence and tentative assessm ent of the evidence creates doubt with respect to their involvement. Therefore, their case requires further probe and inquiry under Section 497 (2) Cr.P.C. On this account, the discretion exercised by the Court below against the accused-petitioners is palpably erroneous and based on facts not in existence at all. Therefore, the impugned order is not sustainable. Before parting with the judgment, it will be relevant to mention here that the findings recorded in this judgment are purely for the purpose of bail and shall not be taken into consideration or influence, in any way, the trial Court at the time of final judgment.
For the reasons listed above, by accepting both the revision petitions and setting aside the impugned order dated 18.4.2007, I allow bail to the accused-petitioners in sum of Rs, 2,00,000/- (two lac) each with one surety in the like amount to the satisfaction of any Magistrate 1st Class Rawalakot. If the needful is done, they shall be set-free forthwith provided they are not required in any other case or offence. A copy of the judgment shall be annexed with relevant file.