Both the above revision petitions have been filed against the same order and relate to the same incident, therefore, these are consolidated and being disposed of through this single judgment.
Necessary facts, briefly stated are that Shahid Iqbal, complainant lodged an FIR on 25.03.2009, at C.M.H Rawalakot, alleging therein that on 24.03.2009 at about 6/7pm, his younger brother Rizwan went to the house of his neighbour, Muhammad Nazir and proceeded back to his house on 25.03.2009 at about 1:00am. Some person or persons severely injured him by firing shots of lethal weapons at the front of the house of Muhammad Nazir. The shots hit him at his back and arm. On hearing the sound of firing, Zameer, Muhammad Naseem, Dr. Muhammad Saleem, Faisal Habib, Nadir Arif and many other people arrived at the spot and got the injured admitted in C.M.H, Rawalakot The Complainant further stated that he suspects that Izhar Nazir, Khadim Hussain, Azhar Razzaq and Zulqarnain have committed the offence on account of past enmity.
On this report, a case under Sections 324, 337 and 34 APC was registered on the same day at 6:45am at Police Station Datot. The injured was referred to PIMS Islamabad but he succumbed to the injuries on the way to the hospital; therefore, an offence under Section 302, APC was added in the FIR and offences under Sections 324 and 337, APC were deleted. The accused were apprehended and after necessary investigation, Izhar Nazir, Khadim Hussain, accused-petitioners and Muhammad Nazir accused-respondent were sent to face trial before the District Court of Criminal jurisdiction, Rawalakot.
After their arrest, they filed a bail application before the trial Court on 15.06.2009, which was dismissed to the extent of Izhar Nazir and Khadim Hussain, accused-petitioners, but allowed to the extent of Muhammad Nazir, accused-respondent, vide order dated 31.08.2009. The aforesaid order has been assailed through two separate revision petitions; one filed by Shahid Iqbal/complainant for recalling the concession of bail allowed to Muhammad Nazir/the accused respondent and the other by Izhar Nazir and Khadim Hussain accused-petitioners for grant of bail, which are the subject matter of this judgment.
Ch. Amjad Ali, the learned Advocate appearing on behalf of the accused petitioners, argued with vehemence that the occurrence took place at night time and no eye-witness is available in the instant case. The learned counsel further contended that no details of past enmity have been recorded in the F.I.R. The learned Counsel pointed out that according to the prosecution, the occurrence took place at 1:00am, but the F.I.R was lodged at 6:45 AM, after a delay of 6 hours, which is fatal to the prosecution case. The learned counsel stressed upon the point that dying declaration is also doubtful because according to the doctor, the injured was fully conscious, whereas, according to the investigating Head Constable Police, he was semi-conscious. The learned counsel pressed into service the submission that the dying declaration has neither been signed by the maker nor his thumb impression has been affixed, therefore, it cannot be relied upon. The learned counsel agitated that Azhar Mushtaq and Zulqarnain/co-accused nominated in the F.I.R have been released under Section 169, Cr.P.C, which makes the prosecution's case doubtful. According to the learned counsel a false case has been registered against the accused petitioners, who are behind the bars for the lost two years and evidence of not a single prosecution witness has been recorded so far but the Court below exercised its discretion in an arbitrary manner, therefore, the impugned order may be set-aside to the extent of Izhar Nazir and Khadim Hussain petitioners and they may be admitted to bail whereas, the concession of bail extended to Muhammad Nazir, respondent is in accordance with the admitted principles of law, governing the bail matters and no extra ordinary circumstances have been established on the record for its cancellation, therefore, the impugned order may be maintained to his extent. In support of the arguments, the following authorities were cited by the learned counsel.
1. PLD 1981 SC (AJK) 10.
2. PLJ 1988 Cr.0 (Karachi) 115.
3. 1996 P.Cr.LJ (Lahore) 2050.
4. 1997 P.Cr.LJ (Pesh.) 1453.
5. 1999 P.Cr.LJ (Pesh.)707, 1087.
Sardar Ejaz Khan, the learned counsel for the complainant, controverted the arguments raised by the learned counsel for the accused-persons and submitted that F.I.R was promptly lodged because the Police Station is situated 4/5 Km away from the place of occurrence and the offence was committed at midnight. The learned counsel pointed out that the deceased was fully conscious at the time of recording of his dying declaration, which was recorded in accordance with Article (46) of Qanoon-e-Shahadat Order, testified by Doctor Sultan Mahmood and Mahmood Ahmed, ASI Police. The learned counsel pointed out that the deceased narrated details of the occurrence to Shahid Iqbal/complainant, Zeeshan Imtiaz and Samim Rasheed PWs, while leaving for Islamabad and he died at Kahuta (Pakistan). The learned counsel stressed upon the It is by now settled position of law that at bail stage, Court is not expected to enter into the merits of case and meticulous appraisal of the prosecution evidence. While deciding a bail petition, the Court has to make a tentative assessm ent and a cursory perusal of the file, the incriminating material made available on the record and a defense plea, if any, and thereafter to arrive at a conclusion whether reasonable grounds are available to connect the accused with the commission of point that the prosecution story also finds support from the statements of Mst. Mukhmal Jan, Zameer Hussain and Muhammad Akram recorded under Section 161, Cr.P.C. According to the learned counsel for the complainant, the weapon of offence has been recovered on the pointation of Izhar Nazir/accused alongwith the empties. The blood stained clothing of the deceased and medical evidence further supports the prosecution version. The learned counsel finally submitted that all the three accused persons are fully involved in the commission of the offence of murder, which has amply been established on the record by the prosecution evidence, therefore, the impugned order may be maintained to the extent of Izhar Nazir and Khadim Hussain petitioners whereas, it may be set- aside to the extent of Muhammad Nazir Khan/accused-respondent because the Court below has extended concession of bail to Muhammad Nazir Khan, accused, on flimsy grounds. The learned counsel for the complainant cited the following authorities in support of his contentions:--
1. 1995 P.Cr.LJ Sh.0 (AJK) 1479
2. 1997 P.Cr.LJ Sh.0 (AJK) 229
3. 2003 YLR (Karachi) 1884
4. 2004 SCR 36
5. PLJ 2008 Sh.0 (AJK) 35
6. 2010 SCM R 55 Mr. Shaukat Abbasi, the learned Assistant Advocate General, appearing on behalf of the State, fully owned and supported the arguments raised by the learned counsel for the complainant.
Arguments were heard pro and contral. The file and case law cited by the learned counsel for the parties was also perused with care.
It is by now settled postition of law that at bail stage, Court is not expected to enter into the merits of case and meticulous appraisal of the prosecution evidence. While deciding a bail petition, the Court has to make a tentative assessment and a cursory perusal of the file, the incriminating material made available on the record and a defense plea, if any, and thereafter to arrive at a conclusion whether reasonable grounds are available to connect the accused with the commission of offence and if the reasonable grounds exist to believe that an accused can be implicated with an offence punishable with death or imprisonment for life, the accused cannot be released on bail.
Coming to the instant case, it has been prima-facie, proved on the record by the statement of Muhammad Akram P.W recorded under Section 161, Cr.P.0 that the deceased was present at the house of the accused-party on the fateful night. It is also on the record that on hearing hue and cry from the side of house of Muhammad Nazir accused, Dr. Muhammad Saleem, Zameer Hussain and Muhammad Naseem P.Ws found the deceased severely injured near the house of Muhammad Nazir, who sustained injuries of a lethal weapon on his back wherefrom the blood was oozing.
Meanwhile Nadir Arif P.W arrived thete. On the way to hospital, Faisal Habib complainant and Zeeshan Imtiaz P.Ws also met them and they took Rizwar. Said, deceased to the hospital. The F.I.R was presented before Muhammad Yaqoob investigating head constable police at C.M.H Rawalakot who sent the F.I.R alongwith his report to the police statior fnr registration of the case where a case was registered. It is further mentioned in the record that Mahmood Ahmad ASI Police obtained opinion of Dr. Sultan Mahmood P. W, who opined that patient is able to give statement; therefore, dying declaration of Rizwan Said, deceased was recorded by said Mahmood Ahmad ASI Police, which was duly attested by Dr. Sultan Mahmood P.W whereby it was deposed that on 24.3.2009 he was called by the family of Muhammad Nazir, who remained there and at 1:00am left the house of accused and proceeded towards his own house whereby Izhar Nazir fired at him with a .12-bore gun after the consultation and on iiistigation of Muhammad Nazir and Khadim Hussain co- accused. The prosecution has further placed on the record, the evidence to the effect that while on the way to PIMS Hospital Islamabad, the deceased told Zeeshan Imtiaz and Sameem Rasheed P.Ws about the participation of the accused in the occurrence. Zameer Hussain P.W also testified in his statement recorded under Section 161, Cr.P.0 that soon after the occurrence he saw Izhar Nazir accused while holding a .12-bore gun and going back to his room. The weapon of offence has been taken into possession at the instance of Izhar Nazir accused. The bloodstained clothing of the deceased has also been taken into possession. The motive has been alleged and supported by dying declaration and by other evidence of P. Ws that the deceased used to visit the house of the accused party but refused to marry Mst. Selma Nazir, daughter of Muhammad Nazir co-accused.
Therefore, the accused became animus and killed him. The medical evidence further corroborates the version of the prosecution. The report of chemical examiner shows that the clothes of the deceased were stained with blood. The report of Forensic Science Laboratory reveals that crime empty of 12-bore gun had been fired by the gun taken into possession on the pointation of Izhar Nazir accused. The F.I.R was promptly lodged. Therefore, prima-facie a case of murder against Izhar Nazir accused has been made out and in such like cases, bail is always declined because the severity of punishment is itself a ground for refusal to grant bail.
I cannot subscribe to the view of the learned Counsel for the petitioners that due to delay of 5 hours and 45 minutes in lodging F.I.R, the accused are entitled to be released on bail. Keeping in view the peculiar facts and circumstances of the case, whereby injured Rizwan Said was taken to the hospital at midnight from a distance of 4 to 5 kilometers hilly area, the delay in filing F.I.R cannot be held fatal to the prosecution case because some time must have been consumed in reaching the road and some time in searching for transport. In this regard, Mureed and another's case [PLJ 1988 Cr.Cases (Karachi) 115], referred to by the learned Counsel for petitioners cannot be applied to the facts of instant case. Even otherwise, delay in lodging F.I.R is per se no ground to reject the prosecution case and cannot be applied like a rule of limitation as is the case in civil matters. My aforesaid view finds support from the constant view of Apex Court of AJK opined in the following cases:--
1. 1983 P Cr.L J SC (AJK) 761;
2. 1996 SCR 336;
3. 1997 SCR 206; & 4.1998 SCR 95; Similarly, the contention of the learned Counsel is not tenable that dying declaration being recorded contrary to the police rules cannot be relied upon. Furthermore, it is a weak piece of evidence because its maker cannot be called for cross-examination whereas on the other hand, it has been held that dying declaration should not be necessarily in writing and even oral dying declaration is admissible and it need not to be recorded by a Magistrate. In this regard, the cases tilted The State V. Iftikhar Ahmad [1995 PCr.LJ (Sh.0 AJK) 1479] and Muhammad Suleman & others V.
The State & others [1997 P.Cr.LJ (Sh.0 AJK) 229] can be referred.
It has been further held in the case titled Majeed V. The State (2010 SCM R 55) that no special forum has been provided for the recording of dying declaration even it can be made before a private person and it is not legally required either to be read over or to be signed by its maker.
It will be pertinent to mention here that et the bail stage deeper appreciation of the merits of the case is not permissible as to whether dying declaration is admissible and conviction can be based solely upon it. Suffice to note that at the stage of bail it is sufficient, if it is prima-facie proved, that the prosecution case also finds support from dying declaration.
The contention of the learned Counsel for the accused-petitioners about the ground of delay in conclusion of trial is devoid of any force because in the instant case, the delay cannot be solely attributed to the prosecution. Thus, Shakeel Ahmad's case [PLJ 2009 Cr. Cases (Lahore) 198] cited by the learned Counsel for the petitioners is quite distinguishable and has nothing common with the facts of the present case. moping in view the facts and circumstances of the case, stated above, Izhar Nazir accused is, prima-facie, involved in the case of murder of deceased; thus, no illegality or arbitrariness has been found in the exercise of discretion by the Court below; therefore, the impugned order is upheld to his extent.
So far as the case of co-accused Khadim Hussain is concerned, stands on different footings. No overt act has been attributed to the accused. He has also not been saddled with any injury to the deceased. He was neither armed with any weapon nor he took part in the attack; therefore, prima- facie the prosecution has not attributed any positive role to the accused in the commission of murder. The only question which needs determination is, as to whether he was guilty of instigation or provocation, has to be appraised in given circumstances of the case but the facts of the instant case do not indicate any preconcert on the part of the accused; therefore, the possibility of his false implication cannot be ruled out.
There is another aspect of the case which also supports the version of Khadim Hussain i,e,, Muhammad Nazir and Khadim Hussain have been alleged by the prosecution to instigate the principal accused to commit murder of the deceased but Muhammad Nazir was released on bail whereas the concession of bail was declined to Khadim Hussain. It is an enriched principle of criminal law that where there are several accused involved in a case, they should be treated alike.
If one accused is admitted to bail, the other accused against whom the same offence is alleged and the facts of the case and the evidence are of similar nature then the other accused should also be admitted to bail. As discussed earlier, the case of Khadim Hussain is at par with co- accused Muhammad Nazir; therefore, Khadim Hussain is also entitled to be released on bail because concession of bail cannot be withheld as a punishment and may be allowed in appropriate cases because incarceration of a person without strong grounds cannot remedy the wrong done by keeping him in confinement even if he is acquitted thereafter. [PLD 1981 SC (AJK) 10 and 2005 SCR 109].
As far as the case of Muhammad Nazir is concerned, as stated above in detail, reasonable grounds are not available on the record to connect the accused with the commission of offence, therefore, the accused cannot be kept in detention on mere allegation that he has committed an offence punishable with death or imprisonment for life. In this regard, the contention of the learned Counsel for the accused-respondent appears to be well founded and requires serious consideration that once bail is granted by a Court of competent jurisdiction, the exceptional grounds are required for its cancellation and it cannot be recalled to wreak the vengeance of the opposite-party. [1996 P.Cr.L.J (Lahore) 2050]. Therefore, following the dictum of the Apex Court laid down in Kareemdad's case (2004 SCR 36) the impugned order to the extent of Muhammad Nazir, accused-respondent does not suffer from any infirmity or illegality and has been passed after due care and caution; thus, does not need any interference by this Court.
The analysis of above discussion is that impugned order is maintained to the extent of Izhar Nazir, accused-petitioner and Muhammad Nazir accused-respondent whereas it is set-aside to the extent of Khadim Hussain, accused-petitioner and he is admitted to bail provided he furnishes bail bond and surety bond in sum of Rs,2,00,000/- (two lac) to the satisfaction of any Magistrate 1st Class Rawalakot. If needful is done, he shall be released forthwith provided not required in any other case or offence. Resultantly, the Revision Petition No, 113/2009 fails whereas the Revision Petition No, 109/2009 partly succeeds to the extent of Khadim Hussain, petitioner. A copy of the judgment shall be annexed with the other file.