RAJA SAEED AKRAM KHAN, J.---This criminal revision petition is directed against the judgment of the Shariat Court of Azad Jammu and Kashmir dated 27-8-2014, whereby the revision petition filed by the accused-petitioner was dismissed.
2. The gist of the facts forming the background of this revision petition is that the accused- petitioner filed an application for bail after arrest under section 497, Cr.P.C., before Tehsil Criminal Court, Dudyal, which was dismissed on 17-5-2014. The accused-petitioner moved another bail application before the Additional District Criminal Court, Dudyal, which was also dismissed vide order dated 4-6-2014. Feeling aggrieved, the accused-petitioner filed a revision petition before the learned Shariat Court of Azad Jammu and Kashmir which also met the same fate vide impugned judgment dated 27-8-2014. This judgment is under challenge through this revision petition.
5(sic.) Raja Khalid Mehmood Khan, Advocate, the learned counsel for the accused-petitioner, submitted that the learned Shariat Court failed to exercise its discretion while not enlarging the accused-petitioner on bail. He argued that the story narrated by the prosecution is highly doubtful as the presence of the complainant at the time of occurrence is not proved from the record. He averred that the injury mentioned narrated in the FIR is also not supported by the medical evidence which makes the case one of further inquiry. The accused-petitioner has falsely been enrobed in the case just to pressurise him to enter into compromise in the case registered against the complainant. He contended that the accused-petitioner is behind the bar for the last more than six months: The challan has already been presented in the Court of competent jurisdiction but there is yet no progress in the trial. In continuation of the arguments, the learned counsel for the accused- petitioner submitted that the delay of five hours in lodging FIR has not been explained satisfactorily, which itself shows that the FIR was lodged after due deliberation, which is not warranted under law.
He submitted that this important aspect of the case has been overlooked by the Courts below while refusing the bail to the accused. The learned counsel lastly argued that the accused- petitioner belongs to a respectable family and he is not an offender previously convicted.
6. On the other hand, Mr. Imtiaz Hussain Raja, Advocate, the learned counsel for the complainant, while controverting the arguments advanced by the learned counsel for the accused-petitioner, submitted that all the three Courts below have rejected the bail application filed by the accused- petitioner after making the tentative assessment of the material available on the record. He contended that the accused-petitioner is duly nominated in the FIR and the delay of five hours in lodging the FIR was explained satisfactorily. He further contended that the presence of the complainant at the place of occurrence has been proved from the statements of the prosecution witnesses, which were recorded under section 161, Cr.P.C. He further argued that the accused- petitioner was armed with .12-bore gun, which was recovered from the house on his pointation which is a strong corroboratory evidence. He urged that in respect of the bail matters, it has consistent practice of the superior Courts that deeper appreciation of evidence at bail stage is not warranted and only a bird eye view has to be taken. He contended that the case of the accused- petitioner falls under the prohibitory clause of section 497, Cr.P.C., and in such like situation, the grant of bail is always declined. The learned counsel lastly argued that the allegation levelled against the accused-petitioner is that he fired upon .The complainant's brother with .12-bore gun, which hit upon the neck of Mahmood Ahmed, complainant's brother which is vital part of the body.
The complainant's brother, Mahmood Ahmed, remained admitted in the hospital for two weeks and still he is unable to talk. The act of the accused-petitioner disentitled him to any sort of discretionary relief. The Question of identification is not doubtful as the parties are known to each other. He further submitted that it is a broad daylight occurrence, therefore, the question of false implication of the accused-petitioner in the case does not arise.
7. Mr. Mansoor Perviz Khan, the learned Advocate-General, supported the arguments advanced by the learned counsel for the complainant. While reiterating almost the same arguments advanced by the learned counsel for the complainant, he added that the challan has been presented in the Court of competent jurisdiction and the trial is likely to start. He argued that in such like situation, the Courts are always reluctant to interfere in the orders relating to bail matters.
8. We have heard the arguments of both the learned counsel for the parties with the able assistance of the Advocate-General. The allegation levelled against the accused-petitioner is that he fired with .12-bore gun upon the complainant's brother, which hit him upon the neck. The occurrence took place on 25-4-2014 at 8-00 a.m. And the FIR was lodged after a considerable delay of five hours. The Police Station is situated at the distance of 1 k.m. And one can reach there within half an hour. The explanation offered by the prosecution in this regard is not convincing in nature. In such like situation, the delay is always fatal for the prosecution. Moreover, the complainant of the case has come on the spot while boarding a carry van from a distance of 2 k.m. And nothing has been brought on the record regarding his presence at the place of occurrence at the relevant time, which makes the case one of further inquiry and can securely be brought under the purview of section 497(2), Cr.P.C. Although, the ground of further inquiry depends upon the peculiar facts of each case, however, the Court has ample powers even to refuse the bail application in the offences which do not fall under the prohibitory clause of section 497, Cr.P.C.
9. It is not absolute rule that the bail in non-bailable offences cannot be granted to an accused. If from the tentative assessm ent of the material brought on record, it appears that there are reasonable grounds for believing that the accused has committed a non-bailable offence but the sufficient grounds for further inquiry into his guilt appear then the Court may release such accused on bail under section 497, Cr.P.C. In the case falling under the prohibitory clause, the Court after tentative assessm ent of the evidence if comes to the conclusion that prima facie some doubts are arising into the guilt of an accused, the Court is empowered to exercise its discretion in favour of the accused and may release him on bail. It is settled principle of law that the doubt if any arising in a case must be extended in favour of the accused even at bail stage.
10. As we have observed in the preceding para that the presence of the complainant, who allegedly has seen the whole episode does not appeal our mind and the explanation furnished for lodging the FIR after a delay of 5 hours itself is not satisfactory. The enmity between the parties is also admitted and in this regard, the possibility cannot be ruled out regarding false implication of the accused. It remained the consistent practice of this Court that in such like cases, which falls under the purview of section 497(2), Cr.P.C., the Court always exercised its discretion in favour of the accused and released him on bail. If the Court finds that two essential conditions contained in section 497(2), Cr.P.C., are satisfied, the accused shall become entitled as of right to bail. When an accused person becomes entitled as of right to bail under section 497(2), Cr.P.C., bail cannot be withheld on the ground of practice because, the latter is relatable to exercise of discretion while the former is relatable to the exercise and grant of right. Reference may be made to the case reported as Muhammad Ismail v. Muhammad Rafique and another [PLD 1989. SC 585], wherein it was observed as under:- "It is apparent that when the Court finds that the two essential conditions contained in section 497(2), Cr.P.C. Are satisfied the accused shall become entitled as of right to bail. In the impugned order the learned Judge, it seems, without saying so in so many words, felt reasonable grounds for believing that the accused has committed (a) non-bailable offence, (b), that there are sufficient grounds for further inquiry into his guilt." Accordingly the accused has become entitled to be released on bail.
The question then arises; whether, subsection (2) of section 497, Cr.P.C. Would have operation notwithstanding the aforestated practice of this Court. Much discussion is not necessary in this behalf. When an accused person becomes entitled as of right to bail under subsection (2) of section 497, Cr.P.C. The same cannot be withheld on the ground of practice; because, the latter is relatable to exercise of discretion while the former is relatable to the exercise and grant of right."
In another unreported judgment of this Court titled Muhammad Arif v. Babar and another (Criminal Appeal No, 76 of 2012, decided on 4.2014(sic.), it has been observed as under:- "(8) After the cursory examination of the material available on the record, it reveals that originally 14 persons were nominated in the FIR, out of which two were given benefit of section 169, Cr.P.C., which makes the case of accused, one of further inquiry. The case falls under the prohibitory clause of section 497, Cr.P.C. The question of vicarious liability can only be determined at the time of recording the evidence, which is the job of the trial Court. The trial Court has already concluded that the trial is in sight. It is settled principle of law that bail cannot be withheld as punishment if otherwise the accused is entitled for the same. Normally, this Court always reluctant to interfere with the discretion exercised by the trial Court unless it is found that the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice. Nobody should remain in jail for an indefinite period. Even otherwise, the bail is not acquittal; it is only a change of custody. The investigation of the case is already completed and the accused- respondent is no more required for further investigation, therefore, it would be fruitless to send him behind the bars for which no useful purpose can be served......"
11. The accused-petitioner is behind the bars for more than six months and there is no progress in the trial. The fair and speedy trial is one of the fundamental rights of the accused. In this scenario, there is no moral or legal compulsion to keep a person behind the bar for an indefinite period, which amounts to punishment without trial. The accused-petitioner is previously non-convict. The investigation has been completed and the challan has already been presented in the Court of competent jurisdiction. The accused-petitioner is no more required for further investigation.
12. We are in agreement with the arguments of the learned counsel for the complainant that deeper scrutiny of evidence is not warranted under law at the bail stage, while keeping this fact in our mind, we are not intended to touch the other aspects of the case, which may prejudice the case of either party. As the thorough scrutiny of evidence is the job of the trial Court.
13. In the light of what has been discussed above, we are intended to accept this revision petition while releasing the accused-petitioner on bail subject to furnishing a bail bond in the sum of Rs, 2,00,000 with one surety in the like amount as well as the personal bond in the like amount to the satisfaction of the trial Court. The accused shall be released, if not required in any other case or offence.
Before parting with the judgment, we may observe that the trial Court will not be influenced by any observations made in this judgment which are tentative in nature and the case shall be decided on its own merits.