' This is an application for grant of bail in a case registered against the accused-petitioner under Sections 302, APC & 13/20/65, Arms Act.
2. The brief facts forming the background of the instant application are that the complainant Muhammad Abdullah Lodhi lodged a report at Police Station City Muzaffarabad on 25.09.2012 alleging therein that a land dispute was prevailing between him & his brother, Muhammad Arif Lodhi against Abdul Aziz s/o Imam Din Lodhi r/o Gehal Jabbra Hattian Bala at present Tariqabad.
However, Abdul Aziz was also suspicious about the divorce of Muhammad Arif s wife Mst.Shakeela and kidnapping of Waheed Lodhi S/o Muhammad Arif. On 29.09.2012, his brother Muhammad Arif and brother of Mst. Shakeela along with his daughter Mst.Robina Bibi aged 11/12 years came from Islamabad to his home. At about 9.30,pm when he was present at his residential tent situated at Tariqabad, the aforesaid persons came there. Mst.Robina entered into the tent, while his brother, Muhammad Arif stayed outside. Meanwhile, Abdul Aziz was already hiding there, came near the tent and fired three shots upon his brother one after the other, which hit him on right and left side of ribs, on this he fell down and succumbed to the injuries. Abdul Aziz committed this offence with the help of 5/6 other accused persons, who were standing faraway and due to dark-night, he unable to identify them. This occurrence was witnessed by Muhammad Tariq, Robina, Munsaf Gala, Tariq and other people of the locality. The motive behind the occurrence was stated to be previous enmity, upon which the accused have murdered the deceased. The accused fled away after committing the offence.
3. On this report, a case under Sections 302, APC and 13/20/65, Arms Act was registered at Police Station City Muzaffarabad. After registration of the case, the police conducted investigation and arrested the accused-petitioner. After usual investigation, the investigating agency submitted a challan before the Court of competent jurisdiction on 30.11.2012. On 22.04.2013, the accused- petitioner moved application for bail before District Criminal Court Muzaffarabad. The said Court after hearing the parties disallowed the same vide its order dated 8.06.2013. The petitioner herein filed this application for grant of bail.
4. Ch. Ghulam Nabi, the learned counsel for the accused-petitioner argued that the trial Court committed grave illegality while recording the impugned order. The learned counsel further contended that the accused-petitioner has falsely been implicated in this case on account of enmity. According to him, the accused-petitioner was not present at the place of alleged incident.
He further argued that the place of occurrence is thickly populated area, but no one from the locality has been cited as witness, who has allegedly seen the occurrence. The learned counsel vehemently argued that the case was registered on 25.09.2012, while the statement of the complainant under Section 161, Cr.P.C. On 9.10.2012, after the delay of fifteen days, which casts serious doubt upon the prosecution story and the accused-petitioner is entitled to get the benefit of the same even at bail stage. The learned counsel argued that the eye-witnesses produced by the prosecution have changed their statements recorded in the trial Court to one recorded under Section 161, Cr.P.C. And one of the eye-witness was also declared as hostile by the prosecution. The learned counsel contended that the accused-petitioner is behind the bars for more than one year and only the statements of five P.Ws. Out of sixteen have been recorded so far. According to the learned counsel the judgment of the trial Court is based on surmises and conjectures and no cogent and convincing reasons have been given by the trial Court while refusing bail application.
Finally, the learned counsel prayed that by accepting the application, the accused-petitioner may be released on bail. In support of his contentions, the learned counsel cited the following case law;- -
1. 2013 S.C.R 192.
5. On the other hand, Ch. Zaffar Mehmood, the learned counsel for the complainant, while controverting the arguments raised by the learned counsel for the accused-petitioner, preliminary raised an objection that the instant application is not maintainable because the accused- petitioner failed to challenge the impugned order of the trial Court, rather the accused-petitioner has filed a newly application before this Court which is against the requirement of law. He further argued that no affidavit has been annexed in support of the application, which is also necessary, therefore the instant application is not sustainable before this Court, thus the same may be dismissed. Secondly, he contended that the accused-petitioner is nominated in the promptly lodged FIR with his specific role, the complainant's version is supported by prosecution witnesses and also corroborated by medical evidence. According to the learned counsel a strong prima facie case connecting the accused-petitioner with the offence existed on record and it cannot be said that the Court below committed any error while refusing bail. The learned counsel further submitted that impugned order being correct and in accordance with law and principles governing bail matter needs no interference, therefore the instant application may be dismissed. In support of his contentions, the learned counsel cited the following case law:--
1. 2002 S.C.R 173;
2. P.L.J 2009 Sh.0 (AJ&K) 35;
3. P.L.J 2009 Sh.0 (AJ&K) 140;
4. 2009P.Cr.L.J 521;
5. 2010 M.L.D 212
6. 2010 P.Cr.L.J 509.
6. The learned State counsel supported the arguments raised by the learned counsel for the complainant.
7. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.
8. While considering a bail application under Section 497, Cr.P.C., if it appears to the Court that there are sufficient grounds for believing that the accused has committed an offence punishable with death or imprisonment for life, the bail shall be refused unless the case is covered under the proviso provided in Section 497, Cr.P.C. Or it appears to the Court at any stage of investigation, inquiry or trial that there are no reasonable grounds to believe that the accused has committed a non-bailable offence and there are sufficient grounds for further inquiry, the bail shall be granted.
To ascertain the reasonable grounds, it would be appropriate to see whether a prima facie case is disclosed against the accused for which the FIR, the statements of the prosecution witnesses recorded under Section 161, Cr.P.C. And the other incriminating material brought by the prosecution, including the medical evidence etc are to be taken in account. This view finds support from a case titled "Nazir Ahmed Khan v. The State & another (2002 S.C.R 173), in which it is held as under: "Bail. In a murder case normally the bail is refused to a person who is prima facie found, involved in the murder of human being. Bail is allowed only when there are reasonable grounds for believing that the accused was not guilty of charges and his act requires detailed inquiry as such his case does not come within the ambit of prohibitory clause of Section 497, Cr.PC. In criminal cases matter of bail is to be decided with due care and caution."
"At bail stage Courts are not expected to enter into deeper appreciation of evidence. The Courts make a tentative assessm ent of the relevant material, i,e, F.I.R, the recoveries made, the alleged statements of prosecution witnesses and other evidence. The appellate Courts are not expected to evaluate in such a manner which may prejudice the case of either party."
9. In the present case, the accused-petitioner is nominated in the promptly lodged F.I.R with his specific role. The prosecution witnesses have supported the prosecution version. The contention of the learned counsel for the accused-petitioner about the hostile eyewitness has sufficiently been discussed by the Court below, therefore there is no need a detailed view at this stage of the case. It may be observed that the accused-petitioner is prima facie connected with the heinous offence of murder. The recovery of the crime weapon has been affected on the pointation of the petitioner, which is also a strong' factor connecting him with the commission of the offence. The case of the accused-petitioner falls within prohibitory clause of Section 497, Cr.P.C. The same like proposition arose before this Court in a case titled "Arshad Mehmood & others v. The State etc." [P.L.J 2009 Sh.0 (AJ&K) 140], in which it is held as under:- "Refusal of bail is the rule whereas grant of bail is an exception. Held. After cursory perusal of the evidence recorded by the trial Court coupled with the statements of P. Ws. Recorded under Section 161,Cr.P.C along with other incriminating material collected by the investigation agency and the defence plea, if any, a Court reaches the conclusion that reasonable grounds exist to connect an accused person with the commission of an offence punishable with death or imprisonment for life then the accused shall not be released on bail because in such cases, refusal of bail is the rule whereas grant of bail is an, exception."
' In view of above principle laid down by this Court as well as by Apex Court, the accused-petitioner at this stage is not entitled to the concession of bail.
10. So far as the objection raised by the learned counsel for the complainant with regard to a point that the instant application is not maintainable because the accused-petitioner failed to challenge the impugned order of the trial Court, rather he has filed a newly application before this Court which is against the requirement of law. In this regard, it is pertinent to note here that although it was obligatory for the petitioner to challenge the order of the Court below, but at the same time, it is relevant to note here that if the accused-petitioner failed to do so, his right to file bail application cannot be deprived up to the Apex Court. As the accused-petitioner is behind the are therefore question with regard to filing of affidavit is also devoid of force.
11. The case law cited by the learned counsel for the petitioner has no relevancy with the facts and circumstances of the present case, therefore need not to be discussed.
' In the light of what has been stated above, finding no force in this application; it is hereby dismissed.