ORDER C HAUDHARY MUHAMMAD TAJ, J. - The above titled reference and revision petitions arise out of same matter, as such are disposed of by this common order.
2. The facts forming the background of these bail matters are that a case under Sections 341/302.
'324.147.148.149,109.337-A. APC was registered at Police Station Kotli. On the report of Tahir Latif, complainant, on July 1. 1996 at 7.30 A.M. It was stated in the First Information Report that the complainant was the Polling Agent of Mahmoodul Hassan Chaudhary at Polling Station Narrali, in the general elections held on June 30, 1996. He stated to have boarded the \yagon carrying polling bags and polling staff from the assembly point Goi. When the wagon reached Makrali. All of sudden persons armed with guns, appeared on the road and started firing at the wagon resultantly Prof. Muhammad Kazim. Presiding Officer, Polling Station Seri Sharra, was murdered while Master Muhammad Bostan r/o Dhandli, Master Injustice, Master Muhammad Iqbal, and Sajjad Ahmed driver were seriously injured. The assailants were Malik Muhammad Ishaque. Ex- P.R.O. Of Malik Muhammad Nawaz, Minister, Malik alias Shakkoo son of Muhammad Hussan, Malik Kabir, Mahmood Malik, Muhammad Shafique Malik, Maroof Malik, Shaukat Saleem. Councillor Municipality Abdul Qavum Malik, private driver of Malik Muhammad Nawaz, elder son of Malik Muhammad Asghar.
Malik Mushtaq, Ex-Chairman, Union Council Roli, and other unown persons. It was further stated that Malik Kabir accused was apprehended on the spot. The assailants acted to Snatch the polling bags, to change the results in favour of Malik Muhammad Nawaz, candidate. It was further disclosed that Malik Muhammad .Nawaz. Minister of the Government and Malik Muhammad Mushtaq. Ex-Chairman Union Council Roli, planned the above conspiracy. The reason for delayed F.I.R, was shown of the accused persons having blocked the roads.
3. During investigation. Kabir, Shafique and Mahmood Ahmed, accused were' apprehended, while Malik Muhammad Nawaz, Muhammad Mushtaq, Muhammad Ishaque, Muhammad Maroof, Shaukat Saleem, Abdul Qayum and Ayyaz Asghar were allowed interim pre-arrest bail by the District Criminal Court, Kotli. The trial Court consisting of Sessions Judge, Kotli and District Qazi, Kotli confirmed the interim bail earlier granted to Malik Muhammad Nawaz and Ayyaz Asghar and refused the pre-arrest bail to Muhammad Ishaque and Muhammad Maroof. Accused and also declined bail after arrest to Muhammad Kabir, Muhammad Shafique and Mahmood Ahmed, accused. The Court differed on the point of confirmation of bail earlier granted to Shaukat Saleem, Mushtaq, Abdul Qavum. Accused. The learned Sessions Judge Kotli, confirmed the bail of said accused while the District Qazi, the other member of the Court, refused to confirm the same. Due to difference of opinion, reference with regard to bail on behalf of the accused, was forwarded to this Court. Two revision petitions, one on behalf of Muhammad Ishaque and Muhammad Maroof, accused against refusal of their anticipatory bail and the other by Muhammad Kabir, Shafique and Mahmood Ahmed, accused, against the refusal of their bail after arrest, were filed by the accused persons. Muhammad Yunus, brother of Prof. Muhammad Kazirn, deceased, also filed a revision petition for cancellation of bail allowed to Malik Muhammad Nawaz, Ayyaz Asghar, accused and also challenged the order of Sessions Judge, confirming bail to other accused, Abdul Qayum, Shaukat Saleem and Malik Mushtaq.
4. Mr. M. Nisar. Mirza, Malik Muhammad Yusuf Khan, and Ch. Muhammad Yusuf Klian, the learned Counsel for the accused raised the following points for the grant of bail to the accused:-
(i) That the police was informed of-the occurrence at 1.30 p.m. On 306- 1996 which was disclosed by the District Magistrate, Kotli and other prosecution witnesses in their statements under Section 161, Cr.P.C, but the F.I.R, was lodged on the next day i.e. July 1,1996 at 7,30 A.M. After deliberations;
(ii) that the wagon carrying polling bags and staff hit by firing, was also followed by Duty Magistrate and a senior Police Official, Incharge of the area, as such the F.I.R, was delayed only to concoct a case against the accused persons;
(iii) that according to the statement of the' District Magistrate recorded by the Investigating Agency, the information reached him at 11.30 p.m. About the murder of Prof. Muhammad Kazim. The statement did not. Disclose anything about the nomination of any accused involved in incident; -
(iv) that Tahir Latif, complainant claimed to be the polling agent at Narrali Polling Station, the area to which he did not belong apart from the fact that his authority letter as polling agent was not recovered and his travelling through the wagon carrying polling bags and staff, could not be justified particularly in the circumstances when some of the members of the polling staff, namely, the prosecution witnesses did not admit his presence in the wagon;
(v) that explanation No. 1 of ' Urdu ' also falsified the claim of the complainant to have travelled through the wagon as the same did hot admit his presence at the time of occurrence when the other members of the polling staff were shown therein. It was argued that the complainant neither was a polling agent nor he travelled through the wagon but was engaged to lodge a false report against the accused on account of election enmity being relative of Mahmoodul Hassan, candidate and said deceased Prof. Muhammad Kazirn;
(vi) that the independent prosecution witnesses, the polling staff did not implicate the accused in the case. It was explained that the witnesses, Muhammad Safeer. Patwari, Muhammad Iqbal, teacher, Assistant Presiding Officer and Sajjad, driver of the wagon did not implicate the accused in the case;
(vii) that the statements under Section 161, Cr.P.C, of the prosecution witnesses were twice recorded to fill in the lacuna and weaknesses of the prosecution case which contradict each other. It was emphasized that the complainant party was bent upon to involve the accused and concoct a case against them;
(viii) that for accused Muhammad .Nawaz, Ayyaz Asghar, Shaukat Saleem, Malik Mushtaq and Abdul Qayum, the respectables of the District which also included senior most officers, i.e. District Magistrate, his Steno, Muhammad Azcem, Dr. Shabhir Kiani, Medical Superintendent, DHQ Hospital and Mr. Muhammad Sadiq, D.A.G., made their statements before the Investigating Officer and also filed their affidavits about the presence of accused at the time of occurrence, in the Control- Room in the office of S.S.P. Kotli where the same was established to receive the results of the elections;
(ix) that it was admitted by the prosecution witnesses that the wagon carrying polling bags and polling staff was escorted and followed by two vehicles of Mujahideen of Jamat-e-Islami who were also armed, and exchanged firing at the time of occurrence with the assailants but none of them was cited as prosecution witness:
(x) that the seat of injury of deceased Prof. Muhammad Kazim, show ing entry wound on the left side near his left ear. 'contradicts the prosecution version and raises doubts in the correctness of the story in the circumstances that it is admitted that the two vehicles carrying 'Mujahideen', one escorting and the other following the wagon were there and the 'Mujahideen' also started firing. The possibility of deceased having been injured at the hands of 'Mujahideen' cannot be ruled out in the circumstances;
(xi) that the allegation of injury to the deceased is attributed to Malik Shakkoo while there is no specific allegation of causing injury to the deceased or any prosecution witness attributed to other accused. The said Malik Shakkoo is not before the Court;
(xii) that there are serious doubts, contradictions in the case which falsified the prosecution story.
The accused have been involved in the case due to election enmity by the rival candidate, Mahmoodul Hassan Chaudhary. a candidate of Jamat-e-Islami. The accused are innocent and have been falsely involved to prejudice their liberty and reputation due to ulterior motive which is designed in the intended arrest of some of the accused to keep them in jail for the purpose;
(xiii) that no recovery was made at the instance of the accused arrested by the police including the one claimed to have been apprehended on the spot which also casts a serious doubt on the prosecution case:
(xiv) that the accused are entitled to the benefit of doubt even at bail stage. The learned Counsel for the accused referred to the following Authorities in support of their assertions:-
(i) 1994 S.C.R (AJK) 136.
(ii) 1995 SCR (AJK) 104.
(iii) PLD 1985 S.C AJK 48.
(iv) 1981 S.C. M.R. 935.
(v) P.L.D. 1987 Sh. C. AJK 63
(vi) PLD 1987 Sh. C. AJK 66.
(vii) PLD 1987 Sh. C. AJK 10.
(viii) 1993 S.C.R (AJK) 300.
5. On the other hand. Mr. Muhammad Sharif Tariq. Ch. Muhammad Azam Khan and Mr. Riaz Navid Butt, the learned Counsel representing the complainant, raised the following points in support of their petition:-
(i) That there is a strong prima facie case existing against the accused. The accused are nominated in the F.I.R, promptly lodged by the complainant. The prosecution version is supported by the prosecution witnesses particularly the natural witnesses present there in the wagon which include the complainant, witness Muhammad Mushtaq and the other witnesses. The prosecution version is corroborated by the medical evidence and the other incriminating material:
(ii) that the accused are not entitled to the concession of anticipatory bail which not only hampers the normal procedure of investigation, but also are not entitled to the same as there is a prima facie case against them which is based on evidence collected by the prosecution and cannot be said to be motivated for any ulterior purpose. It was emphasised that as a result of the firing of the accused, one person was murdered and others were seriously injured;
(iii) that the allegation of F.I.R, being lodged after a considerable delay, is not correct in the circumstances when the occurrence took place at night and there was serious apprehension of the accused having blocked the roads leading to Police Station;
(iv) that the complainant is a natural witness of the occurrence. The mere fact that he was not a member of polling staff and was also not injured in the incident, per se, does not discredjt the F.I.R, lodged by him. Even otherwise, its benefit cannot be extended to the accused at bail stage;
(v) that the accused were identified in the light of the vehicles and the electric bulb lighting there.
Therefore, the claim of the accused for not having been identified stands nullified;
(vi) that the accused, Muhammad Ishaque, Muhammad Maroof. Alter having been declined the anticipatory bail, did not surrender, but filed a revision petition against the refusal of bail to them, as such are not entitled to be heard for the above reason. Therefore, even in case of surrender after hearing of this petition, they will have to apply for bail after arrest for the earlier application having become unfractious:
(vii) that the bail application moved on behalf of Kabir, Shafique and Mahmood Ahmed, accused, was rejected by the District Criminal Court, on the ground that the same was not pressed by the learned Counsel for the above accused. The learned Counsel referred to the relevant portion of the order recorded by the Sessions Judge, in support, of his assertion. It was contended on the above basis that the: bail application having been dismissed by the Court below on the ground of it having not been pressed, cannot be challenged particularly when no affidavit on behalf of the accused or their Counsel was filed in this regard;
(viii) that the learned Sessions Judge allowed pre-arrest bail to Malik Muhammad Nawaz, Ayyaz Asghar, Muhammad Mushtaq, Shauka! Saleem and Abdul Qayum, accused on the grounds which are not available to them in an application for pre-arrest bail. It was also argued that the detailed merits of the case are not gone into at bail stage, particularly the bail before arrest;
(ix) that there is a strong evidence of conspiracy against Muhammad Nawaz, Muhammad Mushtaq, accused, in presence of which they are not entitled to pre-arrest bail;
(x) that the points raised by the learned Counsel for the accused for the grant of bail, particularly with regard to the first informant, nature of injury caused to the deceased, defence plea of being not present at the time of occurrence and thus furnishing affidavits in support of their plea of alibi, certainly touch upon the detailed merits of the case which cannot be decided without going deep into the merits. Such points are not required to be touched as this^ Court has to make a tentative assessm ent of the incriminating material collected by the prosecution;
(xi) that keeping in view the heinous offence committed by the accused. None of them is entitled to concession of hail, whether after arrest or pre-arrest. The learned Counsel for the complainant referred to the following authorities in support of their contentions:-
(i) PLJ 1984 S.C. 5A
(ii) PLD 1983 S.C. 82
(iii) PLJ 1989 Cr.C. 541
(iv) N.L.R. 1980 SCJ 130
(v) 1981 S.C.M.R. 1092(h)
(vi) 1978 S.C.M.R. 236(a)
(vii) 1994 S.C.R. (AJK) l2 (b)
(viii) 1994 S.C.R. (AJK) 272.
(ix) 1994 S.C.R. (AJK) 136.
(x) 1994 SCR (AJK) 59.
(xi) 1985 P.Cr.L.J. 1546.
(xii) 1987 P.Cr.L.J. 27 (c)
(xiii) PLD 1983 S.C. 7
(xiv) NLR 1991 Cr. 745
(xv) 1989 P.Cr.L.J. 2140
(xvi) 1988 P.Cr.L.J. 1370
(xvii) 1985 P.Cr.L.J. 538 (xviii) 1991 P.Cr.LJ. 732
(xix) 1983 S.C. M.R. 15
(xx) 1988 S.C. M.R. 541,
6. The learned Additional Advocate General has supported the arguments - advanced by the learned Counsel for the complainant though the State liss not filed any appeal or revision against the impugned order.
7. I have heard the learned Counsel for the parties and also gone through the record including the police diaries as well as the case-law cited by the learned Counsel for the parties. While considering a bail matter of an accused involved if a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not he released on bail unless the case is covered by any of the provisos maintained tinder sub-section (I) of Section 497. Cr.P.C. But if it appears to the Court at any stage ot 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 be released on bail under sub- section (2) of Section 497. Cr.P.C, It may also be staled that the matter of pre-arrest bail has to be dealt-with in accordance with the conditions laid down by the superior Courts from time to time in addition to the conditions laid down under Section 497. Cr.P.C. The most essential of them are that the intended arrest would be tainted with mala fide and it must be established that the accused- petitioner apprehends his arrest on account of ulterior motiv e or the prosecution is motivated by malice as to cause irreparable injury to his reputation and liberty and police is motivated on political consideration or other ulterior reasons. The extraordinary jurisdiction of anticipatory bail which has the fact of diverting the normal course of law. Has to be exercised with caution.
8. The first question to be considered is whether the Court can assess the incriminating material and evidence brought by the accused of there are restrictions on Court's power to assess the evidentiary value of the material placed' before it. The leading case on the subject is that of Khalid Saigol v. The State (PLD 1962 S.C. 49) wherein the Court consisting of Mr. Justice A.R. Cornelius. C.J..
Mr. Justice B.Z. Kaikais. J. And Mr. Justice Hamoodur Rehman. J. Pronounced the judgment as follows "It will be observed that even under section 497(1) in the case of. An- offence punishable with death or transportation for life the mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. Sub-section (1) of section 497 evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court, and-as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has. Nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look it the materials placed before it by the Investigating Agency and be prinia facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt -before it can come to the conclusion that its discretion no longer exists."
9. In a latter case titled "Manzoor & 4 others v. The State' (PLD 1972 S.C. 81). Mr. Justice Sajjad Ahmed Jan, J. (as he then was), observed that the power conferred by Section 497. Cr.P.C, is not arbitrary power. It has to be exercised by reference to material placed before the Court and as to what that material should be. That material would consist of accusation made in the report made to the police, nature and credential of evidence which the prosecution proposes to lead in the case and all other relevant Circumstances surrounding the occurrence.'The other relevant circumstances would include the evidence produced by the accused and bail has to be allowed or rejected on the basis of this material.
10. The question with regard to assessment of evidence also came under consideration before the Supreme Court of Pakistan in a case titled Khalid Jared Gillani Vs. The State' (PLD 1978 S.C. 256), wherein the following observations were made:- "-It follows that the Court has to make a tentative assessment of its evidentiary value in order to decide a bail application, the moreso. As the section does not in terms contain any restriction on the Court's power to assess the evidentiary' value of the material produced before it. But the section is a part of a Code under which the guilt or innocence of the accused has to be determined in the light of the evidence which is produced when the trial of the accused begins, therefore, whilst deciding a bail application, the Courts, and especially the superior Courts must refrain directly or indirectly, from giving any conclusive finding on the question of the guilt or innocence of the accused, and it may be that an application for bail may fail, if it cannot be decided without an elaborate sifting of evidence. But because the Court must not prejudge the case of the prosecution or of the accused, this does not mean that the Court can shirk its oblation decide the application for bail before it, and that application can only be decided by Courts' belief about the material produced before it."
A similar proposition also came under consideration before the Supreme Court of Azad Jammu and Kashmir in a case titled 'Zahid Paris Vs. The Stale' (1995 SCR (A.IK) 104) wherein it was held as under:- "-At the bail stage it is neither permissible nor desirable to make a- deep scrutiny or minute study of the evidence on record. At the same time. Courts are not expected to make an order in vacuujn.
The Court of law are supposed to make a tentative assessment of the F.I.R., statements of P.Ws, recorded under S. 161. Cr.P.C., the recovery evidence, the defence plea if any. And other circumstances and facts of the case and to reach a conclusion whether in the given circumstances the accused are entilted to the concession of bail or not."
11. Relying upon the Authorities discussed above, it is concluded that in matter of bail, the Court has to make tentative assessm ent of evidence brought by the prosecution as incriminating material or by the accused in defence and the other surrounding circumstances as well and does not in terms contain any restriction on Court's power to assess the evidentiary value of the material placed before it. However, the Court has to refrain, directly or indirectly, from giving any conclusive finding on the question of guilt or innocence of the accused.
12. Turning to the instant case, the following important features arising out of the prosecution case, are noticed:-
(i) That according to the statement of the District Magistrate, Kotli found in the police diaries, the information with regard to the occurrence reached him at 11.30 p.m. On 30-6-1996. The information also disclosed the death of Prof. Muhammad Kazim, Presiding Officer, in the occurrence and it did not disclose any more;
(ii) that it is pointed out by the investigating Agency that the Wagon carrying the polling bags and staff was following by the Duty Magistrate and a Senior Police Official, Incharge of the area, in a vehicle which also reached there soon after the occurrence
(iii) that no report at the spot or at Kotli, after the occurrence, was made when the place of occurrence is situated at 15-20 minutes' journey away from the Police Station;
(iv) that the injured persons are reported to have reached in the Hospital within a short time;
(v) that the F.I.R, was lodged next day at 7.30 A.M. At Police Station Kotli on July 1. 1996, by the complainant claiming to be present in the aforesaid wagon who is not reported to be injured;
(vi) that the wagon carrying the polling bags and polling staff was escorted and followed by two vehicles of ' Mujahideen' of Jamat-e-Islami. Who. According to prosecution, were armed and they also made firing when the assailants attacked on the wagon through firing. The seat of the injury on the deceased is locateed near his left ear, whereas the firing was claimed to have been made by the accused from the right side;
(vii) that none of the Mujahideen' in two vehicles described above, was examined except the one Mr. Aafai who did not identify any of the assailants;
(viii) that member of the polling staff travelling through the aforesaid wagon, namely Muhammad Safeer. Patwari, Muhammad Iqbal, teacher. Abdul Qayum, Naib Qasid and Sajjad, driver of the wagon, did not nominate any of the accused persons or identify any of the assailants:
(ix) that the prosecution after having recorded the statements of Sajjad, driver. recorded his another statement under Section 161. Cr.P.C, on 25-11-1996 which contradicted the statement recorded earlier. The latter statement recorded nearly after 5 months of the occurrence, contains the names of Abdul Qayum, Mahmood Ahmed and Shakkoo who were identified as assailants while in the earlier statement he categorically denied to have identified any of the assailants; Number of respectables of the Kotli District, particularly the District senior Officers which include Dr. Muhammad Shabhir Kiani, M.S. DHQ Hospital, Muhammad Sadiq, DAG, Muhammad Azeem, Steno of the Deputy Commissioner. Kotli. Filed their affidavits and got their statements recorded before the Investigating Agency to the effect that accused Muhammad Nawaz. Ayyaz Asghar, Muhammad Mushtaq. Shaukat Saleem and Abdul Qayum, were present at the relevant time of occurrence in the Control Room;
(x) that no recovery was effected upon Muhammad Kabir, Mahmood Ahmed and Shafique, accused apprehended by the police including the one apprehended on the spot;
(xi) that the only evidence of conspiracy available with the prosecution is the statements of Muhammad Ilyas and Iqbal, PWs whose statements under Section 161, Cr.P.C, were recorded on 15- 7-1996 while the first informant disclosed about the conspiracy in the F.I.R, without having any information from the above two witnesses;
(xii) that the only accused, Malik Shakkoo is alleged by the prosecution to have caused fire-arm injury to Muhammad Kazinr, deceased and Muhammad Shafique and Mahmood Ahmed, accused are attributed to have injuries to Sajjad, driver while none of the other accused persons is attributed any specific injury caused to other injured persons;
(xiii) that it is a night-time occurrence took place on 'election day' wherein the accused belonged to one party while the complainant party to other;
(xiv) that some of the impartial witnesses do not support the prosecution version so far as their involvement towards the commission of offence is concerned; and
(xv) that Ayyaz Asghar, accused is not nominated in the F.I.R.
12. Keeping in view the accumulative effect of the features arising out of the prosecution case which may include the time of occurrence, conflicting statements of the prosecution witnesses, the First Information Report being lodged on the next day, some of the impartial witnesses not supporting the prosecution in respect of involvement of the accused persons, the affidavits filed before the Investigating Agency by some of the important District Officers, stating for the accused Muhammad Nawaz, Malik Mushtaq, Shaukat Saleem, Abdul Qayum and Ayyaz Asghar to be present at the relevant time in the Control-room, the evidence with regard to conspiracy being recorded alter a lapse of nearly one month and 15 days of the occurrence, make the case of further inquiry for the accused Muhammad Nawaz. Ayyaz Asghar. Muhammad Mushtaq. Shaukat Saleem and Abdul Qayuni.
13. The question whether the above accused are entitled to pre-arrest bail, it was claimed in their application moved for pre-arrest bail that they were innocent and were involved because of election enmity to prejudice their liberty and reputation. The question whether an accused person involved in a case attracting death penalty or transportation for life, is entitled to concession of pre-arrest bail, came under consideration before the Shariat Court of Azad Jammu and Kashmir in the case titled Gul Scmciubar Vs. Nazir Ahmed' (PLD 1984 Sh. C. (AJK - I) wherein it was held as under:- The relevant provision of law relating to bail is covered under sections 496, 497. 498 and 561-A.
Cr.P.C. Section 496. Cr.P.C, covers bailable offences. Non-bailable cases are dealt with under section 497. Cr.P.C. Section 497 (1) provides that bail shall not be allowed in cases where sentence is likely to be awarded as death or life imprisonment. Sub section (2) of section 497. Cr.P.C, vests discretion to the Court to consider the question of grant of bail when in its opinion, the case was considered as one of further inquiry. The cases of bail pre-arrest are settled under Sections 498 and 561-A. Cr.P.C. The scheme of law' applicable to the non-bailable cases provides a guideline under section 497. Cr.P.C, and the Court is vested with jurisdiction to grant or refuse bail in the light of such scheme. The cases of bail prearrest, on the other hand, are dealt in a different fashion. It is always in presence of mala fide, apparent concoction fabrication and proposed compassionate grounds which are considered the grounds for allowing bail pre-arrest. The Court is authorised to allow pre-arrest bail in presence of all er any one of the aforesaid reasons. In the present case, the lower Court seems to ignore the basic principle of bail before arrest. The case was not decided in a judicial fashion. It may be mentioned that in case of non-bailable offences, the Court should be Slow in granting bail before arrest in absence of the reasons mentioned above. The tendency of leniency and latitude in bail has, in fact, aided in increase in the crime."
A similar proposition also came under discussion before the Shariat Court of Azad Jammu and Kashmir in another case titled Fazal Dad v. The State' (PLD 1987 Sh. C (AJK) 10), wherein while deciding'a prearrest bail application directly moved before it, the following observations were made:- "No hard and fast rule or principle can be framed as a guideline to apply squarely in bail matters, as each case is to be decided in the light of its own facts. Nevertheless, the question of bail pre- arrest is to. Be considered slightly on different footing by basing recourse to the grounds of mala fide, concoction, self-defence. if any, accompanied by compassionate grounds.
It is unnecessary that all the grounds listed above must primarily exist in each case for bail pre- arrest. If all or any one of those grounds is available, alongwith the state of facts of case under consideration helping the defence in grant of concession of bail pre-arrest. Court should not hesitate to grant the concession' of bail pre-arrest."
14. Relying upon the aforesaid authorities, accused Muhammad Nawaz, Ayyaz Asghar. Malik Mashtaq. Shaukat Saleem and Abdul Qayum. Are entitled to concession of bail. Thus, agreeing with the opinion of learned Sessions Judge. Kotli. Though on different grounds, accused Malik Mushtaq, Shaukat Saleem and Abdul Qayum are allowed hail and the revision petition filed against Muhammad Nawaz and Ayyaz Asghar, for cancellation of their bail, is dismissed. Muhammad Nawaz, accused shall also furnish bail bond in the sum of Rs. 2.00.000/- with his personal bond in the like amount, to the satisfaction of any Magistrate lst Class, Mirpur/Kotli.
15. So far as Muhammad Ishaque and Muhammad Maroof accused are concerned, their bail application was rejected by both the members constituting District Criminal Court, Kotli. The above named accused have also filed their revision petition against the ing pre-arrest bail to them. It was strenuously contended by the learned Counsel for the complainant that the accused after having been refused pre-arrest bail, have not surrendered, as such are not entitled to be heard unless they surrender before the police. Reliance was also placed on Muhammad Akrain's case (1993 SCR
(AJK) 300).
16. Muhammad Ishaque and Muhammad Maroof, accused, according to the record placed before the Court by the learned Additional Advocate General, did not surrender after having refused pre- arrest bail. They filed their revision petition through Mirza Muhammad Nisar and Ch. Muhammad Yusuf, representing them. It is a settled proposition of law that an accused not surrendering himself before the police after having been declined bail, is not entitled to be heard. At the conclusion of arguments which started at Kotli and concluded at Mirpur on 7.12.1986, it was informed by the Counsel for the above named that they have surrendered themselves before the Police. But in view of the fact that the arguments had already been concluded, it would hot suffice to bear their petition. Therefore, it is held to be dismissed. They can move an appropriate forum if they so feel advised.
17. Muhammad Kabir, Muhammad Shafique and M ah mood Ahmad, accused have been refused bail after arrest by the District Criminal Court, Kotli. However, it was maintained in the order recorded by the Sessions Judge that the Counsel for the accused has not pressed their bail application, as such the same is held to be dismissed. The other member constituting the Court, the District Qazi, has dismissed the application but has also failed to give reasons in support of above order. In the course of arguments, the learned Counsel for the above accused was confronted with the above situation but they have not filed any affidation in support ol the plea that they have pressed the application on merits.
18. In view of the above state of facts, the bail application of above named accused cannot be considered on merits, particularly in the circumstances when there is no resolution in the eye of law, by the Court below. Therefore, their application is also dismissed without expressing any opinion on merits so that it may not prejudice their case if they feel so advised to move the trial Court afresh. The condition laid by the learned Sessions Judge with regard to said accused to move afresh only after the presentation of the challan against them, is also found to be against law. The accused are at liberty to move the trial Court afresh if they so teel advised even before the presentation of the challan, as held above. The reference is answered as indicated above and all the revision petitions are held to be dismissed as discussed above.