JUDGMENT MUHAMMAD SHERAZ KIANI, J.---The supra-titled revision petition has been directed against the order of District Court of Criminal Jurisdiction dated 14.11.2016, whereby the bail application of the accused-petitioner was rejected.
2. Precise facts forming background of the instant revision petition are that a case under sections 302/34, 109, APC and 15(2), A.A. was registered at Police Station Kotli on 04.04.2000 on the complaint of Muhammad Razzaq, complainant. It was reported that he is resident of Panjaira. On that day at 10:30, am when he was going home while carrying wood in a trolley tractor and his brother Ahmed Hussain, who was coming from Panjaira reached at Pallandri Panjaira cross. In the meantime, a Vehicle No.5175/AJKL red in colour coming from Panjaira bazaar, which was driven by Muhammad Riaz and Mehtab Ahmed was seated on the front seat, whereas Altaf Ahmed, Ishtiaq Ahmed and Aftab Ahmed were standing outside of the vehicle and all the accused were armed with lethal weapons. They stopped the vehicle near his brother Ahmed Hussain. Accused, Mehtab Ahmed with common intention fired with his Kalashnikov upon his brother which hit him at back and thereafter all the accused- persons came out of the vehicle and started firing. Accused, Altaf fired with 222-rifle which hit at his chest, accused Ishtiaq Ahmed fired with Kalashnikov which hit at right side of rib cage, accused Aftab Ahmed also fired with 222-rifle which hit on right thigh and right shoulder, accused, Muhammad Riaz fired with his revolver which hit him at left arm. After commission of the offence, all the accused-persons seated in the vehicle and went towards Pallandri. The accused-persons committed this occurrence in order to take revenge of murder of Muhammad Khaliq. This occurrence is stated to be done on the provocation and abetment of one Karamat Hussain. The occurrence was witnessed by Maroof, Ghulam Rasool and Abdur Rauf.
3. After registration of the case, the investigation agency started investigation and after completion of investigation and challan under section 512, Cr.P.C. was submitted before the Court of competent jurisdiction on 15.06.2000. On 05.06.2016, accused-petitioner was arrested, subsequently; he moved bail application before District Court of Criminal Jurisdiction Kotli on 17.10.2016. The learned Court below after hearing the learned counsel for the parties rejected the same vide its order dated 14.11.2016, hence this revision petition.
4. Muhammad Younas Tahir, the learned counsel for the petitioner argued that the Court below committed grave illegality while recording the impugned order. He further argued that allegedly four accused have been involved in this case and except accused-petitioner, three of them are still absconder. The learned counsel further contended that one of the accused, Karamat against whom the allegation of abutment has been levelled by the prosecution and it was also alleged by the prosecution that he was the master mind of this occurrence has been acquitted by the Court after completion of trial and all the evidence has been discussed in that judgment. According to the version of the learned counsel if the Court discards the evidence to the extent of one accused then how that cannot be believed against the other accused. The learned counsel further maintained that one of the eye-witness, Ghulam Rasool, who is also an independent witness of the occurrence recorded his statement wherein he has not mentioned the name of the accused- petitioner, however, this witness died after recording the statement. While referring the impugned judgment of the Court below the learned counsel submitted that no sound and cogent reason has been given by the Court for rejecting the bail application of the accused-petitioner. He submitted that mere absconsion is not the conclusive proof of guilt of accused. The proceedings under sections 87/88 of Cr.P.C. have not been initiated against the accused-petitioner, which is the necessary requirement of law, as such he cannot be termed as absconder. The learned counsel contended that the case of the accused-petitioner falls within the ambit of further inquiry. Finally, the learned counsel prayed that by accepting the revision petition, the impugned order may be set aside and accused-petitioner may be released on bail. In support of his contentions, the learned counsel referred the following authorities:-- i. [1994 PCr.LJ 1335]; ii. [1997 M LD 1609]; iii. 2003 YLR 1658; iv. [2004 SCR 359]; v. [2008 SCR 495]; vi. [2007 SCR 517]; vii. [2008 SCR 632]; viii. 2009 PCr.LJ 1095 and ix. [2011 SCR 82].
5. Conversely, Mr. Rafiullah Sultani, the learned counsel for the complainant while controverting the arguments raised by the learned counsel for the petitioner-accused submitted that the accused- petitioner is nominated in the FIR and specific role of firing has been attributed against him.
Medical report also supported the prosecution version. The learned counsel further argued that accused-petitioner remained absconded for 6 years, as such he being fugitive from law is not entitled for any concession like bail. The case of the accused-petitioner falls within prohibitory clause of section 497, Cr.P.C. The learned counsel vehemently argued that deep appreciation of evidence is not permissible at bail stage and conviction can be based even a statement of a single witness. The learned counsel defended the impugned order on all counts. In support of his contentions, the learned counsel referred the following authorities:-- i. [1986 PCr.LJ 1449] ii. 1983 PCr.LJ 502 iii. [1996 SD 795] iv. 1998 M LD 1170 v. 2000 M LD 1718 vi. 2004 PCr.LJ 964 vii. [2016 PCr.LJ 1793]; viii. [2016 PCr.LJ 1737]; and ix. [2017 SCM R 325].
6. The learned AAG, fully owned and supported the arguments raised on behalf of the complainant.
7. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.
8. It may be stated here that bail matters are to be decided in the light of the material collected by police during investigation of the case. Credibility, scrutiny and truthfulness of the witnesses are to be adjudged by the trial Court at the time of the appreciation of evidence after the conclusion of trial. This Court while deciding bail application has to look into the FIR, the statement recorded under section 161, Cr.P.C. or in the Court of witnesses and other incriminating material brought by the prosecution including the recoveries etc.
9. At the very outset, it is pertinent to observe that at bail stage deeper appreciation of evidence is neither permissible nor desirable, however, a tentative view of the material placed before the Court becomes necessary because no order can be passed in vacuum. In the present case, the allegation levelled against the accused-petitioner is that he directly fired, which hit chest of the deceased Ahmad Hussain resulting into his death. It is also alleged in the FIR that accused- petitioner was armed with lethal weapon i.e. Kalashnikov at the time of occurrence but a plea of alibi has been taken by the accused-petitioner that at the time of occurrence, he was in Kotli town after carrying some passengers in his Suzuki Van used as Taxi, when he was arrested by Police and during his investigation, in support of the version of the accused-petitioner, as many as four persons (deponents) filed attested affidavits before the Police and it is stated therein that at the time of occurrence at about 10/10:30 A.M., the accused-petitioner met them in Kotli Kachari and they talked to each other.
10. The first objection raised by the learned counsel for the complainant that the accused- petitioner remained absconder for a period of six years and he is not entitled to concession of bail on this ground but now it is established principle of law that bail cannot be refused only on the ground of absconsion, it is yet to be decided while keeping in view of the facts, circumstances and merits of the case. Although, the absconder looses some normal rights of bail but overall circumstances have to be in sight while deciding a bail matter. My this view is fortified from a case titled Fazal-e -Rabi v. State and another [2008 SCR 495], in which the Hon'ble Supreme Court of Azad Jammu and Kashmir has observed in the following words:-- "The question is whether bail can be refused only on the ground of absconsion or it has to be decided while keeping in view the facts and circumstances of the case. It is an established principle of law that bail matters always have to be decided on merits and technicalities should not defeat the justice to be administered. It is cardinal principle of criminal jurisprudence that the approach of the Court should always be dynamic and technicalities should not be given weight and cases should always be decided on merits keeping in view the facts and circumstances of the case.
"10. Keeping in view the law laid down in above cited cases it can safely be held that bail cannot be refused only on the ground of absconsion. No doubt absconder loses some normal rights of bail, but overall circumstances have to be kept in sight while deciding a bail matter."
11. The learned counsel for the accused-petitioner contended that no proceedings under Sections 87 and 88 of Criminal Procedure Code have been taken against the accused-petitioner, thus, he cannot be declared as absconder or fugitive from law, this argument has also a substance as it is necessary for police and trial Court to take the steps mentioned in the said sections to procure the attendance of the accused and complete proceedings under sections 87 and 88 of Cr.P.C. In Muhammad Fazal's case, supra, reported as [2007 SCR 517], it was held by the apex Court of Azad Jammu and Kashmir in the following words:-- "To declare an accused as a fugitive from law and absconder, a process provided by the Code of Criminal Procedure has to be followed and it is only after completion of that process that an accused is declared as absconder. The law and case law is settled on the point that mere absence from Court on one or more dates fixed for hearing is not itself sufficient to constitute absconsion or declare an accused as fugitive from law."
In the other referred authorities i.e. [1994 PCr.LJ 1335] and [1997 M LD 1609], it was also held that it is necessary before declaring him fugitive from law, the trial Court shall take necessary steps provided in the Code of Criminal Procedure. If he becomes fugitive from law, it is obligatory on the trial Court to initiate the proceedings under sections 87 and 88 of Code of Criminal Procedure unless these actions are taken, the applicant could not be declared as an absconder. So, in view of the aforesaid authorities, the bail of the accused-petitioner cannot be refused merely on the ground of absconsion particularly when the process provided in the Code of Criminal Procedure for absconder has not been completed.
12. Diverting to the material placed before the Court, the case was tried by the trial Court against the accused, Karamat Hussain, and the evidence of the prosecution was recorded in absence of the other accused under Section 512 of Cr.P.C.
Plea of alibi or any defence plea along-with its supporting material can be taken into account at bail stage when it is found that plea of alibi raised by accused and evidence produced by the prosecution does not lead to the inference of guilt against him then the accused becomes entitled to bail due to his case being one of further inquiry. No flexible rule can be laid down that plea of alibi cannot be considered at all, at bail stage, however, such plea in every case is to be considered in the context of its own facts and the plea is to be considered with reference to the context, special care is to be taken when the plea of alibi is pressed into service at bail stage. The only way to deal with the plea of alibi at bail stage is to be observed to examine broad outlines of the plea and then to draw an inference as to whether it was in the interest of justice, with regard to, such plea to the extent that benefit be extended to the accused at bail stage. If on the basis of such assessment the plea appears to be a reasonable possibility, accused raising it becomes entitled to grant of bail as a matter of right. My this view finds support from the following cases reported as:-- i) [1997 PCr.LJ 881]; ii) [1992 M LD 1607]; iii) [PLD 1990 Peshawar 118]; iv) [1990 PCr.LJ 1186]; v) [1979 SCM R 100]; vi) [1985 PCr.LJ 3012]; vii) [1997 M LD 1615]; and viii) [1985 PCr.LJ 488 (Sh. C AJ&K)].
13. I have also had a bird eye view of the evidence recorded by the trial Court and come to the conclusion that the matter in hand is of a matter of further inquiry due to the under-mentioned reasons:-- i) In the FIR three eye-witnesses of the occurrence have been mentioned who have stated to have seen the occurrence, they included Mahroof son of Muhammad Sher, Ghulam Rasool son of Said Muhammad and Abdul Rouf son of Rahim Dad. During the trial of Karamat Hussain and when the evidence of the prosecution witnesses were being recorded under section 512 of Cr.P.C., the prosecution has abandoned two eye-witnesses Abdul Rouf, Mahroof and third P.W. Ghulam Rasool appeared before the trial Court and got recorded his statement on 21.04.2005 but he has not uttered single word against the accused-petitioner whereas he mentioned only the other four accused-persons namely Mahtab, Aftab, Altaf and Riaz and their role in the occurrence but nothing against the accused petitioner, therefore, it is yet to be established by the prosecution that why he has not mentioned or implicated the accused-petitioner, Ishtiaq Ahmed, this witness has not been declared hostile by the prosecution neither a question was put to him in examination-in-chief that why he has not mentioned the name of the accused-petitioner while narrating the story of occurrence. Moreover, it is "also to be explained by the prosecution why they have abandoned the other eye-witnesses; ii) It is stated in the FIR that the incident took place on 04.04.2000 at about 10/10:30 P.M. and the FIR was registered at about 12:15 P.M. on the same day, when dead body of the deceased was forwarded to the concerned Dr. for postmortem. Inspector, SHO, Police Station, Kotli, after narrating the story of prosecution as stated by the complainant, forwarded a written request to the Doctor, which has been placed by the prosecution on the file and tendered in evidence. Although it mentions the name of the accused-petitioner that he was in company of the other accused- persons but no specific role of accused-petitioner, Ishtiaq Ahmed, as alleged in the FIR that he fired with a Kalashnikov upon the deceased is given in the said report. It is yet to be explained by the prosecution after further inquiry/ evidence that why no specific role of the accused-petitioner was mentioned in the said report Exh. "PX"; and iii) Although normally plea of alibi is not given much weightage at the bail stage but at the same time the defence version cannot be totally brushed aside and a blind eye cannot be turned towards plea taken by the defence.
Keeping in view the above-mentioned two facts, which create serious doubt upon the prosecution story to the extent of accused-petitioner, Ishtiaq Ahmed. The plea of alibi taken by the accused- petitioner, which is supported by affidavits of 4 deponents, which are a part of police file, obviously they will be summoned or produced before the trial Court at the stage of defence evidence. So, in such like circumstances, the plea of the accused-petitioner also becomes substantial. Although their statements have not been recorded by the police under Section 161 Cr.P.C. but legally there is no embargo upon the police to record such statements because the phraseology used in the said section is that investigating officer can examine any person supposed to be acquainted with the facts and circumstances of the case and this examination can be reduced by him in writing.
14. Generally, during the investigation by ignoring the requirements of the above-mentioned provisions of law, only those statements are recorded by the police which favour the prosecution story and counter version is overlooked. When any person comes forwarded and says that he is acquainted with the facts, whether relating to the matter in issue or relevant facts, his statement should be brought on record. An attested affidavit signed by deponent if, later on, he goes against his affidavit, legal action can be taken against him.
15. In view of the above reasons, the case of the accused-petitioner falls within the ambit of further inquiry. Under subsection (2) of section 497 of Cr.P.C., he becomes entitled for concession of bail for proper appreciation of the matter sub section (2), supra, of the above Code is reproduced as under:-- "(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. " (Underlining is mine)
According to the above provisions of law when reasonable ground does not exist to believe that any accused person is connected with the offence he becomes entitled for the concession of bail.
It is celebrated principle of law that benefit of doubt can be extended to the accused-petitioner even at bail stage and bail cannot be withheld as punishment on mere allegation or suspicion to connect a person to an offence. When no further evidence is required to be called on and on the basis of available material, his involvement and complicity could be proved then it will be said that reasonable grounds exist to believe that he has committed the offence. However, if any further evidence is required or on the face of material, which creates serious doubt regarding his involvement, it would be said that it is a case of further inquiry. It is also established principle of law that at bail stage, the law should not be stretched in favour of the prosecution. Any evidence if withheld by the prosecution, presumption would be against the prosecution any witness of the prosecution when denies its story also brings the case within the purview of subsection (2) of Section 497 of Cr.P.C. My this view finds support from a case reported as [PLD1988 SC (AJ&K) 14].
16. In view of the above-mentioned principles of law, in the present case, when the evidence of two stated eye-witnesses has been withheld by the prosecution and 3rd one Ghulam Rasool who got recorded his statement has not levelled any allegation against the accused-petitioner, Ishtiaq Ahmed. So, it is a clear case of further inquiry to the extent of accused-petitioner. Thus, he is entitled for concession of bail, but these vital aspects of the matter have not been considered by the learned Court below, rather it passed the judgment of few lines just stating the allegations against the accused-petitioner and held that he is connected with the offence and instead of showing the real period of absence of the accused-petitioner negligently written the same as 15/16 years, which is not warranted by law.
17. The epitome of the above discussion is that the revision petition is accepted while setting-aside the impugned order dated 14.11.2016 and the bail is granted to the accused-petitioner. He shall be released from custody forthwith, if not required in some other case, provided he furnishes bail bond in sum of Rs.20,00,000/- (two millions) with two sureties and personal bail bond in the like amount to the satisfaction of any Magistrate 1st Class or Member of the trial Court, Kotli.