RAJA SAEED AKRAM KHAN, J. The titled appeal has been filed against the order passed by, the Shariat Appellate Bench of the High Court (hereinafter to be referred as High Court) on 26.3.2018, whereby the appeal filed by the accused-appellants, herein, for grant of bail, has been dismissed.
2. The facts necessary for disposal of this appeal are that a case in the offences under. Sections 302, 324, 337, 147, 148 and 149, APC, was registered on 18.9.2016, against the accused-appellants, herein alongwith some others, on a report made by the complainant-respondent No, 2, herein, at Police Station Dhirkot. It was reported by the complainant that on 18.9.2016, on the call of his grandfather Muhammad 'Azad Khan s/o Akhmir Khan (deceased), he, alongwith his maternal uncle Attique Zia s/o Abdul Majeed Khan went to Choa Narakot, where a jirga was to be convened regarding the dispute over some land. The matter between the parties was resolved and a deed was recorded accordingly. Two Patwari, who participated in the jirga, started measurement and demarcation of the disputed land for settlement of issue in the light of the decision of the jirga. In the meantime, Younas Khan s/o Ashraf Khan, Shad Khan, Sajjad Khan and Nisar Khan, sons of Malook Khan, Raja Muhammad Aslam Khan s/o Aziz Khan, Attique Khan, Bilal Khan, sons of Shad Khan, Khalid Khan, Tayyab Khan, sons of Sajjad Khan and Arsalan Khan s/o Younis Khan, assembled on the spot and started mutual discussion. On the indication of Patwari, Sajjad Khan, accused, started fixing the signposts, whereupon, his son Khalid raised an objection that the same may be fixed to the indicated point. On this, one Ayaz Khan, the uncle of the complainant, asked him that he should not have objected to the delineation being carried out by his father. On listening this, Khalid s/o Sajjad became blushed and while taking pistol in the hand, raised a lalkara.
Meanwhile, Muhammad Attique s/o Shad Khan caught hold of the arm of his grandfather, deceased, and told Khalid to make a pistol shot upon him. Khalid fired upon the deceased, which hit him at the chest, due to which he died on the spot. Sajjad s/o Malook also started firing on the body of Muhammad Azad Khan, deceased, with a 12-bore gun. Younis Khan has also been instigating the accused to do away with the life of the deceased. Sajjad Khan, accused, also pelted stones and inflicted stick blows on the body of the deceased. Attique Khan s/o Shad Khan also made a fire with 12- bore gun, which hit Sajjad. Bilal Khan s/o Shad Khan also fired upon Ayaz, which hit at his legs. Arsalan Khan s/o Younis Khan also hit Ejaz s/o Azad Khan with a fire. Tayyab Khan s/o Sajjad Khan inflicted injuries at the head of Sajjad with dagger blow. Thereafter, while taking 12-bore gun from Bilal Khan, Tayyab Khan also made firing upon Ibrar s/o Riaz Ahmed and Sakhawat and Waqar, sons of Saif Ali. Nisar Khan s/o Malook Khan also made indiscriminate firing, due to which the roof of the house of Ayaz Khan was hit. On this report, a case in the offences under the above-referred provisions of law was registered. The accused were apprehended and after thorough investigation, challan was presented in the Additional District Court of Criminal Jurisdiction, Dhirkot, however, accused Muhammad Younis Khan, Shad Khan and Raja Muhammad Aslam were exonerated of the charge under Section 169, Cr.P.C. by the police. On 18.12.2016, the accused namely, Nisar Khan and Sajjad Khan, sons of Malook Khan, moved an application for release on bail in the Trial Court which was rejected. Feeling aggrieved they filed a revision petition before the Shariat Court which was accepted and they were released on bail and the order passed by the Shariat Court was upheld by this Court vide judgment dated 19.09.2017. On 20.07.2017, the accused-appellants, herein, moved application for grant of bail in the Trial Court which was rejected vide order dated 18.09.2017, and the revision petition filed against the order passed by the Trial Court before the High Court has also been dismissed vide impugned order dated 26.03.2018, hence, this appeal.
3. Mr. Azad Tariq, Advocate, the learned counsel for the accused-appellants argued that the impugned order is perverse, arbitrary and fanciful which is liable to be vacated. The learned High Court without applying its judicial mind has concurred with the findings recorded by the Trial Court.
He contended that originally 11 persons were nominated in the FIR, out of while, three were exonerated by the police of the charge under Section 169, Cr.P.C., whereas, two others were released on bail. He added that the case of the accused-appellants, herein, is at par with the case of the accused who were released on bail, therefore, the principle of consistency was fully applicable but the Courts below failed to appreciate this aspect of the case. He maintained that although the trial is in progress, but statements of only 6 witnesses have been recorded as yet, whereas, the prosecution has cited in the challan 44 witnesses, in support of the story and definitely a long-time will be consumed in recording the statements of these witnesses. He added that it is settled principle of law that no one can be kept behind the bars for an indefinite period, moreover, the bail cannot be withheld as punishment.
The learned counsel drew the attention of this Court towards the copy of challan available at page 51 of the paper book and submitted that only the accused-petitioner No, 1, Khalid Sajjad Khan, has been challaned in the offence under Section 302, APC, thus, the prosecution story regarding the involvement of the other accused-appellants in the offence of murder is doubtful and it is settled principle of law that benefit of every possible doubt must goes in favour of the accused. He also added that the statements of the witnesses, recorded under Section 161, Cr.P.C. as well as.the statements recorded in the Trial Court do not support the version of the prosecution. In continuation of the arguments, he submitted that it is evident from the record that accused- petitioner No, 1, to save his life, ran away from the scene of occurrence which shows that the complainant party was aggressor, but all these aspects of the case escaped the notice of the Courts below.
4. On the other hand, Barrister Adnan Nawaz Khan, Advocate, the learned counsel appearing on behalf of the complainant-respondent No, 2, herein, strongly controverted the arguments advanced by the counsel for the accused-appellants. He submitted that the orders passed by the Courts below are perfectly legal and interference by this Court is not warranted under law. He added that the accused-appellants are duly nominated in the promptly lodged F.I.R. with specific role. The witnesses fully supported the prosecution story and it is further being corroborated with the medico-legal reports and the recoveries made on the pointation of the accused-appellants.
He submitted that in the occurrence, one person was murdered and his four sons were seriously injured. The accused-appellants at the time of occurrence were armed with fire-arm and sharp- edged weapons who committed the occurrence in a brutal manner. The recovery of alleged weapons on the pointation of the accused-respondents and the report of Forensic Science Laboratory also fully support the prosecution version. A query was made to the learned counsel for the complainant that only the accused-petitioner No, 1, has been challaned in the offence under Section 302, APC, by the police, whereupon, the learned counsel submitted that the ipse dixit of the police is not binding on the Court and even otherwise offences under which the other accused have been chalianed, also fall under the prohibitory clause of Section 497, Cr.P.C., therefore, no relief can be granted to the accused-appellants on such ground.
5. Sardar .laved Naz Khan, the learned Additional Advocate-General adopted the arguments advanced by the learned counsel for the complainant and prayed for dismissal of appeal.
6. We have heard the arguments and gone through the record made available alongwith the impugned order. It is a case in which on the dispute over the property, five persons of one family were injured, out of which one lost his life. At bail stage, under law, the Court has to make only tentative assessm ent of the FIR, statements of the witnesses recorded under Section 161, Cr.P.C. incriminating articles recovered during investigation and the medico-legal report, etc. to find out whether reasonable grounds exist to connect the accused with the crime or not. In the case in hand, the allegation levelled against the accused-appellants is that at the time of occurrence they were armed with fire-arm as well as sharp-edged weapons and they inflicted injuries to the complainant party in the result of which one person was murdered while 4 others were seriously injured. The available record shows that this allegation is supported by the statements of the witnesses recorded under Section 161, Cr.P.C., recoveries allegedly made on the pointation of the accused-appellants as well as the medico-legal reports. As from the tentative appreciation of the relevant material, discussed hereinabove, prima facie, the accused-appellants are fully connected with the commission of offence, therefore, the argument of the learned counsel for the accused- appellants that the Courts below have not appreciated the material available on record in a legal manner while connecting the accused-appellants with the crime appears to be baseless.
7. The learned counsel for the accused- appellants stressed on the point that the case of the accused which were previously released on bail by the Trial Court and the order of the Trial Court remained upheld upto this Court, is at par with the case of the accused-appellants, therefore, the principle of consistency is fully applicable but the Courts below have not taken into consideration this aspect. It may be observed here that the allegation levelled against one of the accused, released on bail, namely, Nisar Ahmed, was that he made ineffective firing upon the house of the complainant party. From the record it appears that due to non-recovery of the fire-arm weapon from the said accused and the contradictions in the statements of the witnesses, recorded under Section 161, Cr.P.C., regarding his presence at the place of occurrence, the Trial Court granted him the concession of bail. Similarly, to the extent of other accused, released on bail, namely Sajjad Khan, there were also a lot of contradictions in the statements of the witnesses, moreover, no recovery of weapon allegedly used by him in the occurrence, was made to the said accused, whereas, no such material is available in the case of the accused-appellants, herein. Thus, in such state of affairs, the argument of the learned counsel for the accused-appellants that rule of consistency is fully attracted, has also no substance.
8. The learned counsel for the accused- appellants also emphasized that only the accused- appellant No, 1, has been challaned in the offence under Section 302, APC, by the Investigating Officer, therefore, the story established by the prosecution regarding the involvement of all the accused-appellants in the commission of offence is doubtful. In view of the facts of the instant case, prima facie it appears that the Investigating Officer has not discharged his duty in a legal manner; therefore, the Trial Court shall look into this aspect of the case, however, we would like to observe here that it is now settled that the ipse dixit of police has no binding effect on Court and even the Trial Court is empowered to amend the charge on the strength of the evidence come on the record at any stage. Moreover, as the Investigating Officer has not exonerated the accused- appellants No, 2 to 5, of the charge and the offences under which they have been challaned also fall under the prohibitory clause of Section 497, Cr.P.C., therefore, keeping in view the overall facts and circumstances of the case, no benefit can be extended to the accused-petitioner on such ground. We deem it proper to mention here that under law bail cannot be granted if reasonable grounds exist to believe that the accused are guilty of non-bailable offence, falling in the prohibitory clause of Section 497, Cr.P.C. In the matter in hand, prima facie sufficient material is available on record to connect the accused-appellants with the commission of the non-bailable offence falling under the prohibitory clause of Section 497, Cr.P.C., therefore, the Courts below have not committed any illegality while refusing the bail and interference by High Court is not warranted under law.
In view of the above, this appeal being devoid of any force is hereby dismissed.