Above titled revision petition is directed against the order of District Court of Criminal Jurisdiction, Mirpur. dated 12-06-2009, whereby the non-petitioner was allowed bail.
2. Brief facts forming background of the revision petition are that a case under Sections 302/34, A.P.0 and 13/20/65, Arms Act was registered at Police Station, Chaksawari on the complaint of Muhammad Hussain. It was reported that on 24-07-2008 his brother Karam;at Hussain went to Boha Gujran. Afterwards he disappeared and on 30.07.2008 his mother-in-law inquired from the complainant about hits whereabouts, upon this he started searching him. At 8.00, a.m Hussain called and told the complainant that some unknown offenders killed his brother. Fire-arm weapon was used for commission of the offence and his dead body was lying near road at Boha Gujran.
Without nominating any suspect he reported the matter to the Police.
3. During investigation, the accused non-petitioner was found guilty for committing the offence of murder and was arrested by the Police. He applied for bail before the Court below which was allowed through the impugned order, hence this revision petition.
4. Learned Counsel for the petitioner argued that a prima facie case connecting the accused non- petitioner with the offence existed on record. He was alleged for hatching conspiracy and committing murder of Karamat Hussain. The trial Court allowed bail on the ground that some of the legal heirs extended pardon to the non-petitioner while the remaining demanded trial and his conviction in accordance with law. The trial Court while passing the impugned order failed to appreciate that even after compromise with some of legal heirs of the deceased an accused alleged for committing the offence of murder can also be convicted and awarded 14 years R.I under Section 311, A.P.C, thus the case of non-petitioner was covered by Prohibitory clause of Section 497, Cr.P.C, and he was not entitled to the concession of bail, therefore, by accepting the revision petition the same may be cancelled.
5. On the other hand, it was argued that the non-petitioner was not nominated in the F.I.R, material on record was not sufficient to connect him with the alleged offence, some of the legal heirs extended pardon to the non-petitioner and in view of the fact there was no likelihood of his conviction under Section 302, A.P.C. the case was not covered by Prohibitory Clause of Section 497, Cr.P.C, thus the Court below rightly allowed bail to him, 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. It may be stated here that during trial three out of nine legal heirs of the accessed extended pardon to the non-petitioner, thus in view of Section 309, A.P.C, remaining Walis of the deceased were entitled to their share of Diyyat. Though Section 311, A.P.0 provides that where all the walis do not waive or compound the right of Visas' or keeping in view the principle of fasad-fil-arz a Court may, in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of Visas' has been waived or compounded with imprisonment of either description for a term which may extend to fourteen years as Ta'zir, thus it implies that even after compromise with some of the Walis of a deceased or otherwise as laid down in the said section an offender can be convicted and awarded the sentence of imprisonment mentioned therein but in my opinion the question of fasad-fil-arz has to be judged in light of overall circumstances of the case. Paramount consideration for the purpose should be the previous conduct of an accused and the circumstance appearing against him from deposition of the prosecution witnesses.
8. In the present case there was no evidence showing that the non-petitioner was a previous convict or hardened and desperate criminal, moreover a single witness was not recorded as yet, thus at this stage it was difficult to hold that even after the compromise there was any likelihood of conviction of the non- petitioner under the said section. It may also be added here that bail allowed to an accused person can only be cancelled in presence of very strong and cogent reasons but no extraordinary circumstance warranting interference with the impugned order was pointed out by the learned Counsel for the petitioner.
9. In light of the facts listed above, I am of the opinion that the Court below did not commit any error while passing the impugned order, therefore, the revision petition being without any substance is hereby dismissed.