The captioned revision petition has been directed against the order of District Court of Criminal Jurisdiction Bhimber dated 02.07.2016, whereby the post-arrest bail application of the accused- petitioners was rejected.
2. Precise facts forming background of the instant revision petition are that complainant; Dildar Ali lodged a report at Police Station Samahni on 16.06.2015 against the accused-petitioners and co- accused in the offence under Sections 302/341, 147, 148, 149, 427 337/A(1, 2), 337/F(1, 2), 114/34,APC.
For the sake of brevity, the averments of F.I.R. need not to be reiterated here because the same have sufficiently been incorporated by the Court below in the impugned judgment. Suffice it to observe that after registration of the case, the accused-petitioners were apprehended by the police. They filed post-arrest bail application before District Court of criminal Jurisdiction Bhimber on 25.06.2016. The said Court after hearing the parties, rejected the same vide its order dated 02.07.2016, hence this revision petition.
3. The learned counsel for the accused-petitioners argued that the Court below committed grave illegality while recording the impugned order. He further argued that all the other 15 accused persons nominated in the F.I.R. they were released on bail except the petitioners. There is no eye- witness of the occurrence. The learned counsel further submitted that according to the concocted story even, the offences are not attracted in this case and the case was registered only due to previous enmity and rivalry. The accused-petitioners were roped in this case falsely. According to the report of doctor, who examined the deceased, the cause of death was due to heart attack.
There were no mark of violence on the body of deceased and no bleeding found, which also negates the version taken by the prosecution. The learned counsel contended that the challan was submitted one year ago, but unfortunately the statement of only one witness i,e, complainant has been recorded so far and the prosecution failed to produce any witness, which shows that the prosecution is deliberately delaying the trial. Finally, the learned counsel prayed that by accepting the revision petition, the impugned order may be set aside and accused-petitioners may also be released on bail. In support of his contentions, the learned counsel cited the following authorities:--
1. 1994 SCR 212.
2. 2004 P.Cr.L.J SC(AJ&K) 58.
4. On the other hand, the learned counsel for complainant while controverting the arguments raised by the learned counsel for the petitioners submitted that the Court below has rightly declined the concession of bail. He contended that accused-petitioners are nominated in the F.I.R. with their specific role. The case of the petitioner falls within prohibitory clause of Section 497 of Cr.P.C. There is no fresh ground available to the accused-petitioners to file the bail application. He submitted that at this stage deeper appreciation of evidence is not permissible. The learned counsel defended the impugned order on all counts.
5. The learned A.A.G, appearing on behalf of the State supported the arguments raised by the learned counsel for the complainant.
6. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.
7. 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. of witnesses and other incriminating material brought by the prosecution including the recoveries etc.
8. In the present case, the role leveled against the present accused-petitioners are that accused, Mazamal alias Lamba struck the vehicle of deceased with his vehicle and completely damaged it, accused Khurram Zubair dragged the deceased out of the vehicle and also hit a kick on his chest, upon which he fell down on the ground. Accused, Khurram Zubair again hit kicks upon which the deceased' became unconscious and during that he died. Accused, Sohail Zubair hit a stick blow on the head of the complainant and injured him. While, accused Sikandar hit a stick blow to one Muhammad Tufail and injured him.
9. Although previously, the bail application of the accused-petitioners was rejected twice by the learned District Court of criminal Jurisdiction Bhimber on 16.09.2015, 24.03.2016 and now through impugned order dated 02.07.2016 and according to the contention of the learned counsel for the complainant there was no fresh ground available to the accused-petitioners to file the bail application. In this regard, it is pertinent to note here that statement of complainant was recorded after the rejection of previous two applications on 06.06.2016 and previously this Court has not given any finding in this regard. Furthermore, accused-petitioners cannot be banned for filing fresh bail application on fresh ground or which has not been considered in previous one. It is also pertinent to note here that the challan was submitted before the Court on 24.07.2015 and uptill now only the statement of one P.W. i.e complainant has been recorded so far, which is very unfortunate on the part of prosecution.
10. It is important to be considered that the Court while dealing with the question of bail, can assess the incriminating material and the evidence brought by the prosecution though tentatively, the Court is not supposed to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has nevertheless, to see whether there exist reasonable grounds upon which its belief can be founded that accused is connected with the offence.
11. In the present case, the deceased Muhammad Sheraz died during the occurrence and according to the F.I.R. accused-petitioners had given fists and kicks blows and due to that his death was caused. Although at this stage deeper appreciation of evidence is neither permissible nor required, but tentative assessm ent of evidence and most importantly the medical report is to be considered to reach just conclusion of the case. According to opinion of the doctor of Tehsil Headquarter Samahni, he opined in the following words;-- "According to my opinion, it is sudden death i,e, cardiac arrest due to shock from dread, fright or emotion, but final opinion will be given after forensic science laboratory Pathologists report."
This opinion makes the case regarding the cause of death as doubtful and the law is well settled that the benefit of doubt can be given to the accused even at bail stage. It is to be determined by the trial Court after recording the evidence whether a cardiac arrest was possible due to some kicks and fists blows?
12. It is also relevant to mention here that post-mortem of the deceased was also conducted. A copy of the same was also annexed with the revision petition, wherein it is written that no visible injury is found. No mark of ligation or dissection, no bruise or contusion mark, no laceration on whole body of the deceased, so in view of that, case of the accused-petitioners falls within the purview of Section 497(2) of Cr.P.C. and thus, being case of further enquiry, the accused-petitioners are entitled for the concession of bail.
13. The offence under Section 302, APC requires further probe, other offences pertaining to injuries, 337/F (i), 337/A(I,II),APC etc are not an impediment for bail, as under Section 337/N(2),APC, in all the injuries cases the basic punishment is of Arsh or Daman and imprisonment can be awarded only to those offenders who are previously convict, hardened or desperate criminals. No such allegation is against the petitioners. Furthermore, law could not be stretched in favour of the defence or the prosecution for purpose of bail and it is settled principle of law that bail could not be withheld as punishment and in case where the. Court would feel that it was a case of further inquiry, the bail could not be withheld even for a day. The above mentioned aspects of the case have not been considered by the learned Court below and the impugned order has been passed against the settled principles of law governing the bail matter.
In the light of what has been stated above, I accept this revision petition by setting aside the impugned order and it is ordered that accused-petitioners shall be released. forthwith on furnishing bail bonds in sum of Rs. 10,00000/- (ten lac) each consisting of two solvent sureties and personal bonds in the like amount to the satisfaction of any Magistrate 1st class Mirpur/Samahni, if not required or involved in any other case or offence.