CHAUDHAR Y KHALID YOUSAF , J.---This revision petition has been directed against the order of Additional District Court of Criminal Jurisdiction Kotli dated 27.02.2020, whereby , the post-arrest bail application of the accused-petitioner was dismissed.
The brief facts leading to this revision petition are that on complaint of Aamir Khalil, complainant, a case under sections 34,337, 302 and 452, A.P.C. has been registered against the accused-pet itioner and co-accused at Police Station Khuiratta on 08.12.2019, alleging therein that complainant and Zeeshan, running their business of Tailoring at Thathi Bazar . It has been alleged that Zeeshan Shabbir and accused Adeeb Tariq have personal grudge. On 08.12.2019, at 02:45 p.m., the complai nant along with Zeeshan Shabbir were working inside the shop., the accused-persons having common intention to kill him (Zeeshan) entered in the shop, present petitioner Abd-ur- Rehman and accused Adeel gave fists, pushed Zeeshan Shabbir , whereas, accused Adeeb opened straight fire with intention to kill, which hit on left arm's bicep and injured Zeeshan Shabbir was brought in THQ Hospital Khuiratta but he succumbed to injuries in the Hospital. The occurrence was witnessed by Arslan Mehboob, Naseem and other people beside the complainant.
After registration of the case, accused-petitioner and co-accused were apprehended by police. Thereafter , accused-petitioner moved post-arrest bail application before District Court of Criminal Jurisdiction Kotli on 28.12.2019, which was made over to Additional District Court of Criminal Jurisdiction Kotli for disposal. The learned Court below dismissed the same vide its order dated 23.01.2020. On submission of incomplete challan the accused-petitioner moved fresh bail application before District Court of Criminal Jurisdiction Kotli which was also entrusted to Additional District Court of Criminal Jurisdiction Kotli on 11.02.2020, whereby , the same was dismissed too, vide its order dated 27.02.2020; hence, this revision petition.
Raja Rafiullah Sultani, Advocate the learn ed Counsel for the accused-petitioner vehemently argued that the FIR is concocted one and has been registered against the accused-petitioner with ulterio r motives. The learned Counsel pointed out that investigation in this case has been completed and challan of the case has also been submitted therefore, accused-petitioner is no more required by the police for investigating purpose. He further contended that no overt act has been attributed to accuse d-petitioner nor he inflicted any injury to deceased. He further contended that accused-petitioner is 15 years old student and on this sole ground he is entitled for concession of bail. Learned counsel further contended that contents of FIR have not been supported by the statements recorded under section 151, Cr.P.C. The learned Counsel further submitted that mere heinousness or gravity of alleged offence itself is no ground for the refusal of bail. He finally submitted that by accepting this bail application, the accused-petitioner may be released on bail. The learned counsel referred to and relied upon the following case law:-
1. 1985 PCr .LJ 708 [Lahore]
2. 1986 PCr .LJ 1740 [Lahore]
3. 1986 PCr .LJ 1022 [Lahore]
4. 1994 SCR 136
5. 2004 YLR 2704 [Lahore]
6. 2020 PCr .LJ 147 [High Court (AJ&K)]
7. 2020 YLR Note 16 [Lahore (Multan Bench)] On the other hand, Ch. Mehboob Elahi, Advocate, the learned Counsel for the complainant-respondent, controverted the arguments advanced by the learned Counsel for the accused-peti tioner and vigorously contended that deeper appreciation of evidence is not permissible at bail stage; rather , a tentative assessment of evidence has to be taken into consideration. Learned counsel agitated that the occurrence is admitted between the parties, the accused-petitioner is nominated in the FIR and a specific role has been attribut ed to him. He further contended that age per-se is no ground for bail. He submitted that the accused-petitioner is involved in a commission of non- bailable offence punishable with death, therefore, he is riot entitled for concession of bail. He placed his reliance on the following case law;--
1. PLD 1985 Sh.C. (AJ&K) 55
2. PLD 1986 Sh.C. (AJ&K) 74
3. PLD 1987 SC (AJ&K) 27
4. PLD 1988 Supreme Court (AJ&K) 14
5. 1993 SCR 108
6. 2008 PCr .LJ 351 [Shariat Court (AJ&K)]
7. PLJ 201 1 Sh.C. (AJ&K) 80
8. 2015 SCR 865
9. 2018 PCr .LJ 270 [Supreme Court (AJ&K)]
10. 2019 SCR 43 Sardar Mazhar Iqbal, the learned Assistant Advocate General appearing on behalf of the State fully owned and supported the arguments advanced by the learned Counsel for the complainant.
I have heard the learned counsel for the parties as well as the State Counsel and gone through the record of the case with utmost care.
At very outset, I am cognizant of the fact that at bail stage a tentative assessment of the record has to be taken into consideration and deeper scrutiny of the evidence is not permissible at this stage, rather I am supposed to make a tentative assessment of the FIR, statements of P.Ws. recorded under section 161, Cr.P.C. and other material collected by the prosecution, to reach at conclusion that whether in the given circumstances the accused is entitled for concession of bail or not.
It has been alleged in the FIR that the accused-petitioner came on the shop of complainant along with co-accused Adeeb Tariq and pushed the deceased whereas co-accused opened straight fire on Zeeshan Shabbir , who injured and brought to Hospital but did not surviv e. It is Adeeb Tariq who is alleged to cause the death of the deceased, however , it is not the prosecution's case that the accused-petitioner caused any injury to the deceased. The main contention of the learned counsel for the complainant is that the petitioner was present at the place of occurrence who facilitated the principal accused therefore, he is vicariously liable to the commission of alleged of fences.
I am conversant of the fact that principle of vicarious liability can be looked into at bail stage if from the FIR the principal accused appears to have acted in pre-concert with co-accused who did not cause any injury to the deceased, prima facie no, such eventuality is present in the case in hand, however , it would.be adjudged after recording evidence.
The accused-petitioner is about fifteen/sixteen years of age, I have no cavil with the contention of the learned counsel for the complainant that age per se is no ground for which bail should necessarily be granted but when no injury was attributed to the accused petitioner mere his empty handed presence at the place of occurrence is not sufficient to keep him in jail. It is evident from record that the age of the accused-petitioner was fifteen at the time of occurrence who is student of F .Sc. his studies will suf fer if he is kept in jail for indefinite period.
So far as the contention of the learned counsel for the complainant that the accu sed-petitioner is involved in the commission of non-bailable offences therefore, not entitled for bail is concerned. It is not a principle of universal application that in each and every non-bailable case bail cannot be granted rather if the Court reaches to the conclusion that no reasonable grounds appears to have been made out against the accused. then of course bail should be granted. After tentative assessment of the FIR, statements recorded under section 161. Cr.P.C. and other material collected by the prosecution I am of the view that no reasonable grounds are existed to believe that the accused-petitioner is prima facie guilty of offences levelled against him. Perusal of record reveals that the accused-petitioner was empty handed, no allegation of causing any injury to the deceased he was blamed for pushing the deceased which can be ascertained after recording evidence.
Moreover , investigation has been completed, challan has been submitted before the court of competent jurisdiction, accused-petitioner is no more required for any investigation purpose. There is no legal compulsion to keep the person in jail for indefinite period, merely on the ground that he is nominated in FIR. It is celebrated principle of law that bail cannot be withheld as punishment. The aforesaid view finds support from a case reported as "Tariq Bashir and 5 other v . The State [PLD 1995 SC 34 ], the relevant portion is usefully reproduced as under; "It is by now judiciously recognized that there is a tendency in our country to involve innocent persons with the guilty . Once an innocent person is falsely involved in a serious case then he has to remain in jail for considerable time. Normally it takes two years to conclu de the trial. When a person is detained in the jail, all his dependents also suffer hardships. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run. So, whenever reasonable doubt arises with regard to the participation of an accused person in the crime, he should not be deprived of the benefit of bail, the bail can neither be withheld nor cancelled as punishment."
In these circumstances, the case for his enlargement on bail has been made out, the petition is allowed and he is admitted to bail under sections 34, 337, 302, A.P.C., provided he furnishes bail bonds in the sum of Rs. 1000000/- (one million) consisting of two sureties, and personal bond to the like amount to the satisfaction of concerned trial Court, he shall be set at liberty forthwith provided not required in any other case or of fence.