The petition is addressed against the order of District Criminal Court, Kotli passed on March 24, 1992, whereby Fazal Ellahi, Tasib, Muhammad Naib and Muhammad Akram, accusal, were admitted to bail.
2. The accused respondents arc facing charge of murder alongwith principal accused. The alleged incident took place on March 8, 1992, at 11 A.M. in village Tarnote, Tehsil Kotli. Mahboob Khan alias Maroof, complainant made a written report to the police officer, Police Post Nar, wherein it was alleged that on the day of incident, the complainant accompanied by Muhammad Yusuf, Zahid Hussain deceased, Kabir, Najeeb, Muhamamd Yasin and Muhammad Yunus, were busy in road construction. A Tractor used by the complainant party struck against the `Phalahi' tree belonging to Fazal Ellahi, accused. Mst. Khalida, daughter of Fazal Ellahi, protested against the damage caused to the tree and alleged that the accused deliberately struck their tractor against the tree, in order to widen the road under construction. She left for the home to inform her father and brother. At 11 a.m. when the complainant and his associates were on their way after finishing the work, to Jarai Bazar, they came across the accused near the house of Muhammad Yusuf. Muhammad Ajaib accused was armed with .12 bore gun. Muhammad Akram and Muhammad Naib, carried sticks, whereas Tasib and Fazal Ellahi carried their hatchets. They obstructed the complainant party and assaulted on them. Zahid Hussain asked the accused to refrain from abusing them on which Muhammad Ajaib aimed at him and fired with his .12 bore gun, which resulted in the death of Zahid Hussain. The complainant also received injury at the hand of the accused. On conclusion of the investigation, the challan was submitted before the Court. The Court taking the cognizance of the allegations ascribed to the accused delivered the copies of the statements under section 161 Cr.P.C. and adjourned the case for statements under section 242, Cr.P.C. The respondents applied for their release on bail. Their prayer was accepted. This order has been challenged in the present petition.
3. Mr. Aleemuddin, the learned counsel for the petitioners contended that the accused were the members of unlawful assembly, as such they were vicariously liable for the murder of Zahid Hussain deceased. They deserved no concession of bail at this stage. It was further contended that the trial Court allowed bail to the accused on the basis of the report of the police under section 173, Cr.P.C. wherein the accused were found guilty of bailable offence for causing obstruction and inflicting simple injuries to the complainant. The approach of the Court, in view of the learned counsel, was arbitrary, as such the impugned order was liable to be set aside. Mr. Shahid Ahmed Rathore, the learned counsel for defence controverted the aforesaid points and argued that the accused-respondents received various injuries at the hand of complainant party. The complainant party was a trespasser and aggressor. A report was also made to that effect by Fazal Ellahi, one of the accused, to the police, but no case was registered against the complainant party by this time.
The learned counsel referred to the evidence of the prosecution and emphasised that the impugned order was legal and warranted no interference.
4. It is a settled rule of law that at hail stage, the Court has to make tentative appraisement of evidence placed before it and to avoid deep appreciation of such material. Under the provisions of section 497, Cr.P.C., in a case of offence punishable with death or life imprisonment, bail is not permissible unless the case of the accused is covered by the proviso prescribed under subsection
(1) and the provision of subsection (2) of section 497, Cr.P.C.
There is also consensus that at bail stage, if the Court comes to the conclusion that the evidence placed before it was insufficient to connect the accused with the offence punishable with death or life imprisonment or some doubt appeared from such evidence, the accused was entitled to its benefit.
5. It is imperative for the prosecution to come before the Court with clean hands in order to seek conviction of an accused, particularly in case of capital punishment. Thus, whenever the Court finds that the prosecution deliberately suppressed the material facts, relating to an incident, in absence of reasonable explanation, the defence was eligible to the benefit of such suppression, even to the extent of grant of bail.
6. In the present case, the prosecution has come forward with medico-legal report which, prima facie, reflects that Fazal Ellahi, accused suffered 4 injuries. Two injuries were sustained on parietal region. Muhammad Akram received 5 injuries in the incident, out of which 3 were incised wounds.
Muhammad Naib suffered 2 injuries. One of them was caused on the parietal region. Likewise, Tasib, the other accused was also injured. Both the injuries suffered by him were grievous. The number and nature of injuries sustained by the accused persons, though simple but were of such nature which could not have gone unnoticed by the complainant or the eye-witnesses. The report made by the complainant does not mention the injuries suffered by the accused persons. The place of incident is the land of Fazal Ellahi accused. It is not explained whether the incident was, in fact, on account of trespass or not. The site-plan prepared 3 days after the incident, prima facie, does not corroborate in different material particulars, relating to the case of the prosecution. The aforesaid points, of course, were not expressly considered by the lower Court but at the same time, they do not lose their importance to uphold the order of the lower Court.
7. It has been rightly pointed out that the lower Court after taking cognizance of the allegations ascribed to the accused-respondents, allowed them bail on the ground that they were visited with the charge of offence which were bailable. This finding was based on the report of the police, made under section 173, Cr.P.C. The Courts of law are not bound by dixit of police and rather they are under statutory obligation to record their finding on the basis of material before them. On this score, the impugned order is defective. The police report was examined carefully. It contains no reasons to place the accused persons into two categories. It was enjoined upon the investigating agency to clarify as to whether the respondents in the present case accompanied the principal accused at the time of commission of offence or not. The police on one hand accepts the prosecution version but on the second breath, stated that the accused-respondents were liable only on the charge of causing obstruction and causing simple injuries. The legal course open to the trial Court is to proceed with the case according to law and dispose of the case in the light of its own merits.
There is no force in the petition. It is, therefore, dismissed.