' This appeal has been filed against the order of District Criminal Court, Rawalakot, passed on May 7, 1996, whereby the accused-respondents were allowed bail.
2. The facts forming the background of this appeal which is treated as revision petition, are that a case under sections 324, 337, 147, 148, 149, A.P.C. Was registered against the accused-respondents and other accused, on the report of Muhammad Sadiq Khan, complainant, at Police Station, Rawalakot, on September 18, 1995. It was stated in the First Information Report that the complainant's son Imtiaz Hussain and brother Muhammad Hanif Khan had gone to attend the marriage ceremony of Waheed Khan resident of Horna Maira. The accused after planning had already assembled there. The moment his brother and son reached there, accused Muhammad Arshad, Muhammad Arif sons of Abdullah Khan, Sohail son of Muhammad Arif, Shahzad son of Maqsood Khan, Muhammad Anwar son of Muhammad Sarwar, Azhar, Hamid and Mazhar sons of Muhammad Yunus Khan, with intention to kill armed with knives and pistols, attacked on complainant's brother and son, Arshad, Sohail and Azhar accused gave Chhuri blows to Muhammad Hanif on his back, while Muhammad Anwar, Mazhar and Hamid inflicted injuries with knives to Imtiaz who received multiple injuries on the back of his chest. Muhammad Arif and Shahzad were firing with pistols. The occurrence was witnessed by the complainant and Muhammad Ishtiaq, Muhammad Mushtaq, Muhammad Ilyas and Muhammad Hafeez. According to the complainant, the motive is a report made by the complainant against the accused for disconnecting the pipeline. The occurrence was claimed to have been done on the instigation of one Muhammad Yunus Khan son of Muhammad Sarwar Khan.
3. After investigation, the challan was presented before the District Criminal Court, Rawalakot where the trial is in progress. The accused-respondents were apprehended during the investigation by the police and were released on bail by the trial Court vide the impugned order.
4. Mr. Habib Hussain Shah, the learned counsel for the petitioner raised the following points in support of the petition:--
(i) That a prima facie case exists against the accused-respondents. It was explained that the accused-respondents are nominated in the F.I.R. The complainant's version is supported by prosecution witnesses and also corroborated by medical evidence;
(ii) that Muhammad Arshad, Sohail and Hamid, accused-respondents are attributed to have inflicted knife blows to Muhammad Hanif and Muhammad Imtiaz, injured persons. The injuries inflicted by the accused-repsondents are declared dangerous on the vital parts of the bodies while the allegation of firing is attributed to Muhammad Arif and Shahzad Khan, accused-respondents;
(iii) that the accused-respondents, after commission of offence, absconded and were arrested after nearly 7 months. The absconsion of the accused disentitles them to the concession of bail; and
(iv) that the grounds advanced by the subordinate Court in support of grant of bail, are not tenable in law.
5. On the other hand, Sardar Muhammad Nawaz Khan, the learned counsel for the accused- respondents supported the order granting bail, in the following manner:--
(i) That no prima facie case exists against the accused-respondents and there are material contradictions in the statements of the prosecution witnesses and the F.I.R. Lodged by the complainant, as such, the case is of further inquiry. The learned counsel referred to the portion of the F.I.R.;
(ii) that the medical evidence contradicts the version put forth by the complainant and the prosecution witnesses. The report does not corroborate the prosecution version, as such the matter requires further probe;
(iii) that after completing the investigation, the accused-respondents were sent to judicial lock-up and the case was challaned before the trial Court. The trial Court exercised its judicial discretion in favour of the accused-respondents in terms of grant of bail to them. The judicial discretion exercised by the trial Court is sparingly interfered with.
6. I have heard the learned counsel for the parties and also gone through the record, including the police diaries. According to the police record, the accused after occurrence, absconded nearly for 7 months when they were arrested by the local police on warrants of arrest issued by the Court and proceedings under section 87, Cr.P.C. Were also initiated against them. Accused Shahzad, Hamid, Arshad, Sohail were arrested on April 24, 1996, while Muhammad Arif accused was arrested a week before the arrest of the aforesaid accused. The accused-respondents applied for their bail on April 27, 1996 which was allowed on May 7, 1996, on the following grounds:--
(i) that the accused-respondents were in the custody of the police for the last 13 days;
(ii) that none of the complainant party was injured by fire-arms; and
(iii) that the injuries are reported to have been caused with knives but the condition of the injured persons was not bad.
7. While considering a bail application under section 497, Cr.P.C., if it appears to the Court that there are sufficient grounds for believing that the accused has committed an offence punishable with death or imprisonment for life, the bail shall be refused unless the case is covered under the proviso provided in section 497, Cr.P.C. Or it appears to the Court at any stage of investigation, inquiry or trial that there are no reasonable grounds to believe that the accused has committed a non-bailable offence and there are sufficient grounds for further inquiry, the bail shall be granted.
To ascertain the reasonable grounds, it would be appropriate to see whether a prima facie case is disclosed against the accused for which the F.I.R., the statements of the prosecution witnesses recorded under section 161, Cr.P.C. And the other incriminating material brought by the prosecution, including the medical evidence etc. Are to be taken in account.
8. In the present case, the accused-respondents are nominated in the F.I.R. All the prosecution witnesses including the injured witnesses, support the prosecution version. The allegation levelled against the accused-respondents is corroborated by medical evidence. Accused-respondents Muhammad Arshad and Sohail alongwith other accused not before the Court, are attributed to have caused knife blows to Muhammad Hanif, while Hamid and other accused (not before the Court) are attributed to have caused knife injuries to Imtiaz and the allegation of firing is attributed to Muhammad Arif and Shahzad Khan. '11-te medical report supports the prosecution version as regard the injuries caused to the injured persons, Muhammad Hanif and Muhammad Imtiaz with knife. The recoveries of alleged weapons of offence, i,e, knives, have been made from Muhammad Arshad, Muhammad Sohail and Hamid accused. However, none of the complainant party is reported to have been injured by fire-arms and the recovery of fire-arms is not effected upon them.
9. The learned trial Judge has granted bail on the grounds not recognized by law or the principles of bail established by the superior Courts in respect of bail matters. It may be observed that if a prima facie case is established against an accused, mere effecting recovery or remaining with the police for some days, would hardly constitute a ground for the grant of bail in a case where the accused have committed a heinous offence by injuring two persons with the knives, causing injuries -)n the vital parts of the bodies. The assertion of the learned counsel for the respondents while defending the bail order that the matter in view of nature of the injuries as simple, is of further inquiry, has no substance C in the eye of law as the accused have caused injuries on the vital parts of the bodies which shows their intention. It may also be added that there is no substance in the assertion of the learned counsel for the accused-respondents that the medical evidence contradicts the prosecution version. The statements of the injured persons under section 161, Cr.P.C.
Are fully corroborated by medical evidence. Even otherwise, such ground, at this stage, is not available as the D detailed merits of a case are not gone into at bail stage. Reliance in this regard may also be placed on PLD 1982 SC (AJ&K) 100 and 1982 SCMR 208. Therefore, the order granting bail to the accused-respondents, Muhammad Arshad, Muhammad Sohail and Hamid, is against the accepted principles of bail and is, therefore, colourable exercise of jurisdiction, as such the order passed by the District Criminal Court which appears to have been passed mechanically and without apply mind, to their extent is not maintainable. However, the allegation against Muhammad Arif and Shahzad accused, of firing with pistols, requires further probe for the reason that none of the complainant party is injured with fire-arms. The recovery of alleged weapon of offence, i,e, the pistols, has not been made from the said accused persons though they remained in police custody. The trial Court also exercised its discretion in their favour on the above ground as well.
' It was also contended by the learned counsel for the petitioner that the accused had absconded and therefore, on this sole ground, they are not entitled to bail. The learned counsel referred to the case of Mst. Nasreen Akhtar v. Raja Muhammad Asghar PLD 1993 SC (AJ&K) 1 and that of Mst.
Fazlan Bi v. Abdul Latif 1994 SCR 59. In both the above authorities the matter of pre-arrest bail of a person who absconded, was discussed and it was decided that the concession of pre-arrest bail cannot be allowed to such an offender. In 1994 SCR 59, referred to above, reliance was placed on the case of Basharat Khan v. Sher Muhammad Khan, decided by the Supreme Court of Azad Jammu and Kashmir on July 7, 1992. Therefore, the authorities referred to above deal with pre- arrest bail. However, it may also be observed that absconsion is to be taken into account while considering the matter of bail of an accused person involved in non-bailable offence or the offence carrying the punishment of death or imprisonment of life. The above fact in the instant case was also overlooked by the subordinate Court.
10. In view of the above discussion, the revision petition-is partly accepted. The bail granted to accused-respondents Muhammad Arshad, Muhammad Sohail and Hamid is hereby cancelled.
The revision petition to the extent of Muhammad Arif and Shahzad, accused-respondents, though stands dismissed on merits, but due to their absence in spite of direction of the Court to appear today, their bail is also cancelled.