This revision petition has been preferred against an order of District Criminal Court Bhimber dated 5.9.2009, whereby accused-respondents were released on bail.
The facts precisely stated are that Ahmad Deen, complainant, filed a written F.I.R. at Police Station Bhimber on 28.05.2009 at 7:45 a.m. alleging therein that on the same day at 7:00 a.m. accused Abdul Aziz S/0 Shalam Khan, Muhammad Afzal, Basharat Hussain, Liaquat Ali and Ilyas sons of Abdul Aziz, who were armed with lethal weapons, launched an attack upon the house of Murad Hussain, his son, and started firing to kill him. Muhammad Afzal, accused, fired a straight shot, which hit Murad Hussain on his leg. Ilyas, accused, fired second shot which also landed on his leg.
On hearing the sound of firing, Sajid Charagh Deen were coming towards the house of Murad Hussain, ut in the meantime Basharat Hussain and Liaquat started reckless tiring, upon them due to which Sajid got injured and died at the spot. Abdul Aziz, accused, with the intention to kill Charagh Deen, fired a straight shot, which hit him on his hand. Mst. Irshad Bibi w/o Muhammad Afzal, Mst. Zeenat Bibi w/o Liaquat Ali and Mst. Robeena w/o Ilyas also arrived at the spot and caused injuries to Charagh Deen with clubs. Besides complainant, Muhammad Usman and Imran witnessed the occurrence.
The motive behind the occurrence has been stated to be a past enmity because the accused- persons prior to the occurrence had also 'injured him by firing shots.
On this report, a case under Sections 302, 324, 147, 148, 149, 337/A-F and 34, APC was registered.
After necessary investigation, an offence under Section 13/20/65 Arms Act was added and the accused-respondents alongwith Abdul Aziz and Mat. Zeenat were sent to face trial before District Criminal Court Bhimber on 17.8.2009 whereas the names of other accused-persons Muhammad Ilyas and Liaquat Hussain were placed in column 2 of the challan as- absconders and benefit of Section 169, Cr.P.0 was extended to Mst. Irshad Bibi and Mst. Robeena Bibi.
Basharat Hussain, accused, filed a bail application before District Criminal Court Bhimber on 4.7.2009, which was dismissed vide order dated 27.7.2009. After presentation of challan, both the accused-respondents preferred a bail petition before District Criminal Court Bhimber on 20.8.2009, which was allowed on 5.9.2009. The aforesaid order of granting bail has been assailed through the instant revision petition.
In support of the revision petition, Hafiz Fazl-ur-Rehman Dar, the learned Counsel submitted that Muhammad Afzal, accused, fired a shot which hit Murad on his leg whereas Basharat, accused, alongwith Liaquat Ali, an absconding accused fired shots which hit Sajid who died spontaneously.
According to the learned Counsel, the F.I.R was promptly lodged and it is a daylight occurrence, and the weapons of offence have also been recovered on the pointation of accused-persons. The learned Counsel argued that the statement of not a single prosecution witness has been recorded so far. The learned Counsel pointed out that the case of accused-persons falls in the prohibitory clause of Section 497, Cr.P.0 but the trial Court failed to appreciate the aforesaid aspect of the case. The learned Counsel agitated that the institution of challan is not a fresh ground for grant of bail because the first bail application of Basharat Hussain was dismissed by the trial Court on 27.7.2009 and thereafter no further proceedings were taken in the case. The learned Counsel laid great stress upon the point that co-accused Ilyas and Liaquat are still at large and the accused- persons had also injured father of Sajid deceased prior to the occurrence; therefore, they are fully involved in the case but the Court below ignored the prosecution evidence and extended the concession of bail in an arbitrary manner, which may be recalled. In support of his arguments, the learned Counsel cited the following authorities:--
1. 2004 SCR 9;
2. PLJ 2009 Sh.C. (AJK) 140; Mirza Aziz-ur-Rehman, the learned Asst.A.G appearing on behalf of the State fully owned and.supported the arguments raised by the learned Counsel for the complainant.
Chaudhary Jahandad Khan, the learned Counsel for the accused-respondents controverted the arguments raised by the learned Counsel for the petitioner-complainant and submitted that the Court below has passed the impugned order after a careful appraisal of the prosecution evidence and material annexed with the challan. The learned Counsel pointed out that Basharat Hussain, accused-respondent, sustained injuries with a firearm, which have not been explained by the prosecution and none of the prosecution witnesses has deposed in his statement recorded under Section 161, Cr.P.0 about his injuries; therefore, the statements of P.Ws are not reliable. The learned Counsel further contended that the alleged occurrence took place on 28.5.2009 but the statement of Muhammad Usman (P.W.5) an eyewitness was recorded on 4.6.2010; thus, it cannot be taken into consideration, who according to the site-plan witnessed the occurrence from a distance of 240 feet. The learned Counsel laid great stress upon the point that according to site-plan, it was not possible for P.Ws to witness the occurrence and the place of death of the deceased is not visible from the place whereby Muhammad Afzal was alleged to fire shot upon Murad Ali. The learned Counsel agitated that the medical evidence also does not support the prosecution version because according to medical examination certificate, Charagh Deen sustained injuries by a blunt weapon whereas it has been alleged by the prosecution that the accused caused injuries to Charagh Deen by firearm. Similarly, the injury form of Murad Ali (P.W.1) was also not prepared. The learned Counsel pressed into service the submission that according to the recovery memo., two empties of SG and one live round were also taken into possession from the place wherefrom accused Liaquat Ali and Basharat Hussain have been alleged to fire shots, but a .222-rifle was taken into possession at the instance of Basharat Hussain, accused. The learned Counsel maintained that the benefit of Section 169, Cr.P.C. was extended to Mst. Irshad Bibi and Mst.
Robeena Bibi accused-persons, who were nominated in the F.I.R, which also creates doubt and suspicion about the veracity of prosecution story. The learned Counsel finally submitted that the . prosecution story is full of glaring contradictions and material infirmities; thus, the Court below exercised its discretion in a judicious and legal manner. The learned Counsel prayed that impugned order may be maintained. In support of his contentions, the learned Counsel referred to me the following case law:--
1. 1992 SCR 379;
2. 1997 SCR 125, 195 & 248;
3. PLJ 2006 SC (AJ&K) 69;
4. 2008 SCR 495;
5. 2009 SCR 484; &
6. PLJ 2010 Cr.Cases (Lahore) 456; I have given my earnest consideration to the arguments addressed at Bar and perused the record with care.
At the very outset, it will be relevant to note that the presentation of complete challan always provides a fresh ground to an accused to file a bail application; however, in the instant case only Basharat Hussain accused filed a bail application before institution of complete challan and not the other respondent Muhammad Afzal, therefore, Basharat Hussain accused is also entitled to file afresh bail application after presentation of complete challan. The aforesaid view finds support from a case titled Fazl-e-Rabbi v. State and another (2008 SCR 495) whereby it has been held at page 502 of the report as under:- "After the submission of new challan in the trial Court a fresh ground is available to the accused on the basis of which he can move the application in the trial Court."
The moot point in the case in hand is as to whether in presence of admitted enmity between the parties and whereby during the occurrence the accused-respondent Basharat Hussain sustained firearm injuries on his abdomen, he could be considered entitled to be released on bail. A cursory perusal of medical examination certificate shows that Basharat Hussain accused sustained fire- arm injuries on the abdomen, the vital part of his body. The accused also remained admitted in the Hospital for 13 days but his injuries were deliberately suppressed and were not explained in the F.I.R.
Thus, the complainant has suppressed his own part in the incident. In this view of the matter, it is yet to be seen that which party was aggressor. The aforesaid view finds support from a case reported as Muhammad Yunus V. State and Abdul Malak V. Muhammad Akbar & 2 others (1997 SCR 195) wherein the following principle was enunciated in para 5 of the report:-- "We have given our due consideration to the matter. Keeping in view the fact that prima facie members froni both the rival factions sustained injuries with blunt weapons as well as with fire-arm and the fact that there is no explanation on the record as to how Muhammad Yunus, Muhammad Akhtar and Abdul Aziz, accused, sustained injuries, it cannot be said even tentatively as to which of the two versions is more plausible. Similarly, it cannot be said at this stage that the medical reports of the accused persons are false and fabricated. After all the Doctor who gave said reports is a prosecution witness and the accused persons were got examined by the Doctor by the investigating agency. Therefore, it is premature to argue at this stage that there was no fire-arm injury on the person of Muhammad Yunus and medical report has been obtained through influence. Similarly, in presence of unexplained injuries found on the persons of Muhammad Yunus, Muhammad Akhtar and Abdul Aziz, it cannot be said that the Shariat Court while allowing bail to two of them acted perversely on in violation of any principle governing the matter."
As far as the case of Muhammad Afzal, respondent, is concerned, has not been attributed any overt act to cause any injury to the deceased. He has been ascribed firing a shot, which hit Murad Hussain on his leg.
It is also admitted on the record that according to the prosecution, Abdul Aziz accused fired a shot, which hit Charagh Deen on his hand but according to medical examination certificate, Charagh Deen sustained injuries by a blunt weapon.
I cannot subscribe to the view of the learned Counsel for the complainant that the prosecution version has remained un-rebutted; therefore, it may be believed as it has been held in Mst.
Maqsood Begum's case (2004 SCR 9) I referred to by the learned Counsel for the petitioner. There can be no cavil with the principle enunciated in the aforesaid report but it cannot be loosely applied in an omnibus manner to the instant case.
It is an admitted principle of criminal law that when during the tentative assessment of the prosecution evidence it is found that it creates some doubt with respect to involvement of the accused in the crime and sufficient grounds do not exist for believing that the accused is connected with the offence alleged against him, the case falls within the scope of further inquiry under Section 497, Cr.P.0 and the accused becomes entitled to the grant of bail.
It will be useful to mention here that while considering a bail petition, law hap not to be stretched in favour of the prosecution rather if any benefit of doubt arisbs even at bail stage, it must go to the accused. (1997 SCR 125).
The other authorities referred to by the learned Counsel for the parties are beyond the controversial point thus, do not require any detailed analytical survey. For instance, Muhammad Mushtaq's case (PLJ 2006 SC (AJK) 69) deals with the case of allegation of abetment against the accused. Similarly, M. Rashid's case (PLJ 2010 Cr.Cases (Lahore) 458) deals with a case of an old and infirm accused whereby no overt act of causing any injury to the deceased was attributed to him.
On the above premises of reasbning, no legal and patent defect in the exercise of discretion by the Court below has been found; thus, the impugned order has to be upheld. Resultantly, the revision petition stands dismissed.