1. The legality and correctness of an order passed by District Criminal Court Mirpur dated 27.9.2010 has been called in question through the instant revision petition.
2. The facts briefly stated are that Mat. Sidrah Bibi wife of accused-petitioner alongwith her brother Naeem Nawaz orally reported that she was married to accused-petitioner about 8 years ago and she was blessed with two sons. She is living with her parents for the last one year due to strained relations. On 11.8.2010 at 4:45pm, Azhar Mahmood, her husband, while riding on motorcycle arrived there picked up the children and took them away on the road. She caught hold of her children, thereupon her husband Azhar Mahmood started firing with a pistol. Amongst one shot hit on her right shoulder and the other shot hit her upon her right cheek. Her mother Mst. Sona Bibi and brother Naeem Nawaz witnessed the occurrence. After firing shots, the accused fled away while riding on the motorcycle.
3. The motive behind the occurrence has been stated to be a family dispute and resentment.
4. On this report, a case under Section 824, APC was registered. After necessary investigation, the offences under Sections 337(A-1) and 337(F-3) were also added and the accused-petitioner was sent to face trial before Tehsil Criminal Court Mirpur where the case is at the stage of recording of prosecution evidence.
5. After arrest, in first round, the accused-petitioner filed a bail application on 17.8.2010 before Tehsil Criminal Court Mirpur, which was dismissed vide its order dated 21.8.2010. Thereupon, the accused- petitioner presented another bail application before District Criminal Court Mirpur on 23.8.2010, which was also declined on 28.8.2010. Thereafter, in second round, the accused-petitioner instituted a fresh bail application before Tehsil Criminal Court Mirpur on 4.9.2010, which was again refused on 8.9.2010. Feeling aggrieved and dissatisfied from the aforesaid order, the petitioner preferred another bail application before District Criminal Court Mirpur on 24.9.2010, which was also dismissed vide order dated 27.9.2010, hence, this revision petition.
6. Raja Fazl Hussain Rabbani, the learned Counsel for the accused-petitioner vehemently argued that a false case has been registered against the accused-petitioner on account of enmity because the spouses solemnized a love marriage without the permission of complainant's parents. The learned Counsel further contended that F.I.R is fictitious and fabricated because the alleged injured complainant never remained admitted in the hospital. The learned Counsel agitated that both the prosecution witnesses Mst. Sona Bibi being her mother and Naeem Nawaz being her brother are close relative of the complainant and none of the independent witnesses has been cited by the prosecution, therefore, their evidence cannot be relied upon. The learned Counsel maintained that according to the prosecution two shots were fired but only one empty has been recovered from the spot, which makes the prosecution case suspicious and doubtful. The learned Counsel laid great stress upon the point that the accused-petitioner did not fire a single shot rather Naeem Nawaz (P.W.3) alongwith other family members launched an attack upon the accused and the complainant was hit by aerial firing of her brother Naeem Nawaz. The learned Counsel pressed into service the submission that the complainant is wife of accused-petitioner; therefore, he has got every right to approach his wife and children but the Court below failed to exercise its discretion in a legal fashion; therefore; the impugned order may be set-aside and the accused-petitioner may be released on bail.
7. Conversely, Raja Inamullah Khan, the learned Counsel for the complainant submitted that it is a broad daylight occurrence whereby no question of identification arises. The learned Counsel further contended that the time and place of occurrence, the presence of the accused, complainant and the prosecution witnesses is admitted on the part of defence. The learned Counsel pointed out that F.I.R was promptly lodged and it is a case of single accused whereby a specific role has been ascribed to him. The learned Counsel pressed into service the submission that the accused-petitioner fired two shots, which hit on vital parts of complainant's body and the prosecution version stands proved by the natural witnesses. According to the learned Counsel, the prosecution case is also supported by ample medical and other corroboratory evidence. The learned Counsel vehemently argued that as the occurrence took place in an open place; therefore, only one empty was found and non-availability of other empty does not make out a case of bail in presence of solid and cogent prosecution evidence alongwith other material collected by the investigating agency. The learned Counsel finally submitted that the ease of the petitioner falls within the prohibitory clause of Section 497, Cr.P.C.; therefore, he is not entitled to the concession of bail.
8. Javaid Sadiq Jarral, the learned Asst.A.G appearing on behalf of the State opposed the bail petition and supported the arguments raised by the learned Counsel for the complainant.
9. I have given my due 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 trial Court and District Criminal Court have refused the concession of bail twice. Therefore, it is a case of concurrent findings of the Courts below.
10. It is necessary to note here that the petitioner has not disclosed the fact in his subsequent application that he had filed a previous bail petition which was dismissed. The aforesaid concealment of previous application is alone sufficient to decline the concession, of bail. (1998 MLD 13 21 SC AJK)
11. A cursory perusal of the statements of prosecution witnesses recorded under Section 161, Cr.P.C. alongwith the medical evidence and other corroboratory material collected by the investigating agency coupled with the defence plea that the complainant was hit by aerial firing made by Naeem Nawaz; her brother, reasonable grounds exist to believe that the accused-petitioner did attempt at the life of the complainant. (1998 P.Cr.LJ 2176).
12. The accused-petitioner is nominated in the F.I.R., which was promptly lodged. The names of eye- witnesses have been mentioned therein and a clear role of firing shots with a deadly weapon has been attributed to him. The medical evidence duly supports the injuries sustained by a firearm. The occurrence took place in a broad daylight, which shows that there is hardly any chance of substitution or misidentification.
13. It will be pertinent to mention here that a husband has got right to see her wife and children but he is not allowed to forcibly take away her children without the permission of their mother and to launch a murderous attack upon his own wife, as alleged by the prosecution. In this view of the matter, he is not entitled to be released on bail. (1983 P.Cr.LJ 20).
14. As far as an objection raised by the learned Counsel for the petitioner that both the prosecution witnesses are closely related to the complainant is not tenable at this stage of the proceedings because according to the prosecution, the occurrence took place near the house of complainant's parents; therefore, prima-facie, Mst. Sona Bibi her mother and Naeem Nawaz her brother are natural witnesses. The medical evidence, prima-facie, also supports the version of the prosecution whereby the complainant sustained lacerated wounds on right forehead and right upper arm, the vital parts of her body, by a firearm. It is also on the record that the weapon of offence, a pistol, has been recovered at the instance of accused-petitioner and an empty of .30-bore pistol has been recovered from the place of occurrence. The bloodstained clothes of the complainant have also been taken into possession. Therefore, in view of the prosecution evidence coupled with the defence plea taken by the accused-petitioner, a prima-facie case has been established against the accused-petitioner, which falls in the ambit of prohibitory clause of Section 497, Cr.P.C. and in such like cases, the bail is not granted in a routine matter rather refusal of bail is a rule and its grant is an exception but in the instant case, I find no exceptional circumstances for grant of bail. In such state of affairs, exercise of discretion by the Court below does not smack of any perversity or arbitrariness. Therefore, the impugned order has to be upheld.
15. The nutshell of above discussion is that finding no force in this revision petition, it is hereby dismissed.