' This revision petition has been filed to call in question the order passed by the District Criminal Court, Kotli, on December 4, 1996, whereby the accused-respondents were allowed pre-arrest bail.
2. The facts forming the background of this revision petition are that a case under sections 302, 448, 147, 148, 149, 109, 337-B, A.P.C. Was registered on the report of Maqsood Ahmed, complainant, on September 16, 1996, at Police Station Khuiratta, Tehsil Kotli. It was stated in the First Information Report that the complainant was resident of Dhamal, Tehsil Kotli. The accused, Muhammad Ayub and others were also residents of the same place. Over a piece of Shamilat land adjacent to his house, where Muhammad Tufail and Liaqat constructed their houses, a litigation between him and Muhammad Ayub and others, accused was going on for which reason the accused nursed a grudge against him and his family members. The accused also wanted to construct a house after taking forcible possession of the said land. The accused, after having filed a civil suit, got issued a notice against his brother Muhammad Tufail for which the date was fixed as September 24, 1996.
The accused after preparing a plan to construct a house, at 12 O'Clock at night, armed with deadly weapons, started firing to kill him and the inmates of his house. Muhammad Ayub accused was armed with rifle who fired at his sister Mst. Nusrat Begum, hitting her neck who died on the spot.
Muhammad Khalil, with intention to kill, injured the left arm of Muhammad Tufail with the fire of his rifle. The other accused had been firing with their arms. The complainant and his mother Mst.
Kushash Begum and sister-in-law, Mst. Razia Begum identified the accused through torch light. The accused committed the offence with the connivance of Muhammad Khan, Muhammad Aziz, sons of Bagh, Muhammad Rauf son of Niaz Khan, Jamroze son of Haider Ali, Qudratullah son of Khan Bahadur, Zulfiqar, Ex.A.E.O. And Rehmatullah accused. The accused, after investigation were forwarded to face their trial before the trial Court, through the challan submitted in this regard. The accused-respondents were allowed anticipatory bail. The said order is the subject of challenge through this revision petition.
3. Mr. Riaz Navid Butt, the learned counsel for the petitioner, raised the following points in support of the petition:--
(i) That accused-respondents Nos.1 and 2 were nominated in the F.I.R. Promptly lodged by the complainant. The specific role was also attributed to the said accused persons. The complainant's version was corroborated by the prosecution witnesses;
(ii) that strong prima facie case on the basis of allegations leveled by the complainant, supported by prosecution witnesses in their statements along with other incriminating material collected by the prosecution, was disclosed against the above accused-respondents, for which a challah has also been submitted in the trial Court;
(iii) that the District Criminal Court, ignoring the settled principles of bail established by the superior Courts, allowed the concession of anticipatory bail to the accused-respondents. The impugned order, therefore, suffered from an illegality; and
(iv) that the participation of the accused-respondents, in view of the evidence proposed, by the prosecution, is above any doubt, as such there was no case for the grant of pre-arrest bail to the accused-respondents. The learned counsel referred to 1987 PCr.LJ 176, 1996 PCr.LJ 1202, PLD 1987 SC (AJ&K) 27, 1985 PCr.LJ 1546, 216 in support of his assertions.
4. On the other hand, Mr. M. Nisar Mirza, the learned counsel appearing for the accused- respondents, controverted the arguments advanced by the learned counsel for the petitioner, in the following manner:--
(i) That there is no prima facie case disclosed against the accused-respondents, by the prosecution;
(ii) that accused-respondents Nos. 3 to 6 have been released under section 169, Cr.P.C. And are no more accused in the case challaned before the trial Court;
(iii) that the case to the extent of accused-respondents Nos.1 and 2, is of further inquiry as their participation in the occurrence, is doubtful. It was explained that there was no allegation of firing at the deceased or any of the prosecution witnesses. A vague allegation of aimless firing was attributed to the accused-respondents. No recovery of any sort was made at their instance. No empty was recovered from the spot wherefrom the accused were alleged to have been firing; and
(iv) that the trial Court, keeping in view the facts and circumstances of the case, proceeded to allow the concession of bail. The order passed by the trial Court has to be given weight, as such it warrants no interference by this Court. The learned counsel referred to PLD 1987 Sh.C. (AJ&K) 10 and the case titled Muhammad Yunus and others v. Malik Muhammad Nawaz, decided on 28th March, 1997, by the Azad Jammu and Kashmir Supreme Court in support of his assertions.
5. I have heard the learned counsel for the parties and also gone through the record carefully. It may be mentioned at the very outset that the learned counsel for the petitioner did not press the cancellation of bail allowed to accused-respondents Nos.3 to 6, in view of their release under section 169, Cr.P.C. Therefore, no resolution is required to their extent.
6. Next, it would be appropriate to advert to the preliminary point whether pre-arrest bail can be allowed to an accused involved in a non-boilable offence punishable with death or imprisonment for life. The proposition of allowing anticipatory bail in such-like matters came under consideration of this Court in the case titled Gul Sanaubar v. Nazir Ahmed PLD 1984 Sh.C. (AJ&K) 1, 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 boilable offences. Non-boilable 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. Subsection (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-boilable cases provides a guideline under section 497, Cr.P.C. And the Court is vested with jurisdiction to grant or refuse hail in the light of such scheme. The cases of bail pre-arrest, 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 or 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 crimes."
' A similar proposition also came under consideration before this Court in another case titled Fazal Dad v. The State PLD 1987 Sh.C. (AJ&K) 10, wherein it was resolved in the following manner:- .. 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 having recourse to the grounds of mala fide, concoction, self-defence if any, accompanied by compassionate grounds.
' It is unncessary 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, along with 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."
7. On the basis of authorities discussed above, it may be held that the cases of bail pre-arrest are dealt with in a different manner than those of bail after arrest. In order to justify the grant of anticipatory bail, the petitioner must show that he apprehends his arrest on account of ulterior motive or the prosecution is motivated by malice so as to cause irreparable injury to his reputation and liberty or the police was motivated on political consideration or for the ulterior reasons. The extraordinary jurisdiction of anticipatory bail which has the effect of diverting the normal course of law, should be exercised with caution.
8. While considering a bail matter, to form an opinion, the Court has to look into F.I.R., the statements of the prosecution witnesses recorded under section 161, Cr.P.C. And the other incriminating material collected by the prosecution, including any plea of the accused. In the instant case, there is no allegation of causing any injury to the deceased or any of the prosecution witnesses, attributed to the accused-respondents by the prosecution. There are specific allegations attributed to the other accused for giving fire-arms injuries to the deceased and the injured witnesses. Though the accused were named in the F.I.R. And shown armed, but was not disclosed by any of the prosecution witnesses, including the complainant, that which of the arms was with them. No recovery was made at their instance. The occurrence is of night time. The accused were claimed to have been identified through torch light. The trial Court extended the concession of bail to the accused-respondents mainly on the ground that they were shown standing nearly about 272 feet away. Therefore, according to it, the identification through torch light requires further probe.
9. In view of the facts listed above, the case of accused-respondents require further probe for the reasons that there was a previous enmity existing between the parties. The other accused not before the Court had been specifically nominated in the F.I.R., to have caused injuries to the deceased and the other injured witnesses, while none of the accused-respondents was claimed to have given any injury to the deceased or the prosecution witnesses. The allegation of aimless firing was attributed to the accused-respondents. No recovery of any sort was made at their instance.
The occurrence, according to prosecution, took place at night time and the accused-respondents were claimed to have been identified through torch light which, in the circumstances of the case, prima facie, appears to be little difficult. Reliance may be placed on the case titled Muhammad Yunus v. Malik Muhammad Nawaz and others, decided by the Supreme Court of Azad Jammu and Kashmir, on March 28, 1997, wherein the facts closer to the case in hand, were involved and the pre- arrest bail allowed by the District Criminal Court and affirmed by this Court, was upheld by the Supreme Court of Azad Jammu and Kashmir. Reliance in this regard may also be placed on Zabiullah v. State 1978 PCr.LJ 795, wherein relying upon the case titled Muhammad Akbar v. The State 1978 SCM R 7 the following observations were made:- "----S. 497---Bail---Petitioners attributed part of only firing in air and brandishing hatchets in air-- -None of petitioners alleged to have attempted to cause injury to deceased or to any person accompanying deceased---F.I.R. Also showing existence of enmity between parties---Prosecution yet to establish case against petitioners for their vicarious liability for alleged offence---Petitioners allowed bail, in circumstances."
10. In view of the above state of facts, and law, the order passed by the District Criminal Court Kotli, granting pre-arrest bail to the accused-respondents Nos.1 and 2, does not warrant any interference which has been passed after due consideration of law, as such the revision petition merits no consideration which is hereby dismissed. Before parting with the judgment, it would be necessary to state that the case-law cited by the learned counsel for the petitioner (1) PLD 1985 Lah. 616, (2) 1996 PCr.LJ 1202, (3) 1985 PCr.LJ 1313, (4) 1987 PCr.LJ 176, (5) 1985 PCr.LJ 216 and (6) 1985 PCr.LJ 1546, with its distinct facts, is not applicable to the case in hand, particularly in presence of the law laid down by the Supreme Court of Azad Jammu and Kashmir, in the case titled Malik Muhammad Nawaz v. The State referred to above, wherein the guidelines have been provided for dealing with the matter relating to pre-arrest bail.