' The above-captioned petitions arise out of the same order of the District Criminal Courts, Bhimber, as such these are disposed of by this common order.
2. The facts briefly stated, are that a case under section 5, Isiennic Penal Laws Act read with sections 341, 147, 148, 149 and 109, A.P.C. Was registered at Police Station Bhimber, on the report of Abdul Karim, complainant. It was stated in the first information report that on June 1, 1995, the complainant alongwith Sohbat Ali and Liaqat Ali, his sons, and Muhammad Taj and Muhammad Iqbal sons of Muhammad Din, came to Bhimber for the purchase of some construction material for his house. Due to absence of Muhammad Akram, shopkeeper who had gone to Lahore the said material could not be purchased and they remained till 12-30 p.m. At the shop of Muhammad Yusuf, Ex-Chairman, Union Council Dhaandar, later on took their lunch at his house. It was stated that they all started to go back by a tractor-trolly which they had brought for the carriage of material. It was also stated by the complainant that while coming, he had left his own tractor at the Crush Machine of Sarwar which was taken by Sohbat Ali and Muhammad Iqbal. Sohbat Ali was driving the tractor while Muhammad Iqbal was sitting with him. They were little away from the complainant and his companions. At about 2-30 p.m. The said tractor reached at Thathi, on Maghloora Road when the accused from left side of a room and culvert appeared. Meanwhile the complainant along with Liaqat and Muhammad Taj travelling by another tractor, also reached there. Accused Muhammad Yusuf, Muhammad Khaliq and Ahmed Din sons of Muhammad Din, caste Jat resident of Dherra, Zulfiqar son of Rehmat Jat, resident of Karyala and 4 other accused whose names were unknown armed with klashnikov except Ahmed Din who was armed with .12 bore gun attacked and got down Sohbat Ali and Muhammad Iqbal, from the tractor. Muhammad Yusuf fired at Sohbat Ali with his klashnikov on Ale right side of his face, back and right arm while Zulfiqar fired at Muhammad Iqbal at his belly, chest, face and head. Ahmad Din accused was attributed to have caused injury on the left leg of Muhammad Iqbal. The other accused also fired at the deceased persons who succumbed to the injuries at the spot. The accused committed a crime as they had a grudge against the deceased persons who had an altercation with Muhammad Fazil, Member District Council, at the time of delimitation of local councils who considered himself to be an influential person and gave threat of his disgrace at that time. Later on, Muhammad Yusuf brother of said Muhammad Fazil, a driver of the bus against whom people of the area had a complaint and the said deceased persons forbade him from coming to Machora, for the aforesaid reasons, became inimical towards the deceased persons. It was further stated that the klashnikov was snatched by the deceased persons from Zulfiqar accused in a marriage ceremony when he was firing in the air, but was returned to him in a "Panchayat". Muhammad Fazil the said Member Council, and Ali Shah son of Rehmat Ali felt disgraced by the above incident, therefore, they along with Muhammad Din, 'In a plan with the accused mentioned above, murdered the deceased persons.
3. After investigation, challan under section 5, I.P.L.A. Read with sections 147 148, 149, 341, 109, A.P.C.
And section 13/20/65, Arms Act was submitted in the Court of competent jurisdiction, against Muhammad Yusuf, Muhammad Akram, Ahmed Din, Muhammad Khaliq, Zulfiqar and Muhammad Fazil accused. Muhammad Din, accused and Ali Shah were released under section 169, Cr.P.C.
Accused Muhammad Afzal, Fazal Elahi and Rehmat Khan were discharged by the police. Accused Zulfiqar son of Rehmat Ali was challaned under section 512, Cr.P.C. In his absence. Muhammad Fazil and Muhammad Akram have already been allowed bail before the bail application under consideration.
4. Two applications, one by Muhammad Khaliq son of Muhammad Din and the other by Ahmed Din and Muhammad Yusuf were moved for the grant of bail before the District Criminal Court, Bhimber.
The trial Court, after hearing the parties allowed bail to Muhammad Khaliq, and Ahmed Din while declined the same to Muhammad Yusuf, petitioner. These two petitions have been preferred, one for the grant of bail to Muhammad Yusuf against the rejection of bail and the other by Abdul Karim, complainant, for cancellation of bail allowed by the District Criminal Court, to Muhammad Khaliq and Ahmed Din, accused.
5. In the petition filed for cancellation of bail, the learned counsel for the complainant, Ch. Ghazanfar Ali, did not press his petition to the extent of Muhammad Khaliq accused-respondent, as such, argued to the extent of Ahmed Din, accused-respondent only.
6. Raja Mazhar Iqbal, the learned counsel for the accused raised the following points in support of the petition for bail:--
(i) That there is no prima facie case disclosed by the prosecution against the accused-petitioner., Muhammad Yusuf;
(ii) that the petitioner's case is of further inquiry for the reasons that the F.I.R. Was lodged after the delay of 24 hours but the police, with the connivance of the complainant party, tampered with its date which is quite apparent from the record and the facts mentioned in the F.I.R.;
(iii) that all the accused are inter-related and interested. There is no impartial evidence tendered by the prosecution except two witnesses, Ghulam Sarwar and Muhammad Rafique whose statements were recorded on July 31, 1995, nearly two months after the occurrence. The above witnesses do not support the prosecution story;
(iv) that the complainant nominated 4 accused persons whose names were unknown to him but the prosecution challaned those persons who were known to the complainant, therefore, the matter requires further probe, in the circumstances, about the identification of other accused persons;
(v) that the crime empties were not recovered from the place alleged by the prosecution; and
(vi) that there is no independent corroboration put forth by the prosecution.
7. On the other hand, Ch. Muhammad Mushtaq the learned Additional Advocate-General and Ch. Ghazanfar Ali, the learned counsel representing the State and complainant addressed the following arguments in support of refusal of bail to the petitioner Muhammad Yusuf:--
(i) That there is a strong prima facie case disclosed against the accused-petitioner who is mentioned in the F.I.R. And the prosecution version is supported by the evidence of its 2 witnesses, namely Liaqat Ali son of Abdul Karim and Muhammad Taj son of Muhammad Din, in addition to the complainant;
(ii) that the prosecution version is corroborated by the medical evidence and the evidence of recovery effected upon the said accused;
(iii) that the accused-petitioner committed a heinous offence by his reckless firing alongwith other accused, resulting in spontaneous death of two persons, Sohbat Ali and Muhammad Iqbal;
(iv) that the points raised by the learned counsel for the accused for the grant of bail relates to detailed merits of the case, as such, are not to be gone into at bail stage. Particularly by the superior Courts; and
(v) that the trial Court after due consideration disallowed the concession of bail. The order based on relevant facts, warrants no interference.
8. The learned counsel for the complainant, Mr. Ghazanfar Ali Chaudhry also raised the following points in support of the petition filed for cancellation of bail allowed by the trial Court, to Ahmed Din accused:--
(i) That the accused-respondent is nominated in the F.I.R. By the complainant in a report promptly lodged by him wherein the allegation of causing injury to Muhammad Iqbal deceased is attributed.
The above version is supported by the other prosecution witnesses, including the corroboration by medical evidence and recovery of the alleged gun made from the accused-respondent;
(ii) that while granting bail to the said accused-respondent, the trial Court embarked upon the detailed merits of the case which prejudiced the prosecution's case, as such the order is not maintainable.
9. In reply to the argument advanced in favour of cancellation of bail allowed to Ahmed Din, accused, Raja Mazhar lqbal, the learned counsel representing him, argued that the prosecution was doubtful about the participation of said accused-respondent in the occurrence. He referred to a portion of the judgment recorded by the trial Court, by pointing out that the version of the Investigating Officer wherein it was mentioned that the gun alleged to have been recovered from the accused-respondent was in the hand of Muhammad Akram alias Paija, at the time of incident.
It was also argued by the learned counsel for the accused-respondent that the Investigating Officer, in the circumstances did not decide the participation of the accused-respondent and left it to be decided by the Court. It was further argued that it was not possible for the complainant or the witnesses to identify any accused or an injury caused by him through a fire-arm when some of the accused persons could not be identified by him, as such the matter requires further inquiry, particularly when the injury shows to have been caused is simple on the non-vital part of the body.
10. I have heard the learned counsel for the parties and also gone through the record minutely including the police diaries. The accused-petitioner, Muhammad Yusuf is specifically mentioned in the F.I.R. By a report lodged by the complainant on the same day. Two prosecution witnesses, Liaqat and Muhammad Taj also support the prosecution version. The post-mortem report of Sohbat Ali deceased, who was alleged to have been caused injuries by the said petitioner, is shown to have received injuries on his face, ear, head and other parts of his body which are 28 in number, including the exit wounds. The other deceased person, Muhammad Iqbal was caused 16 injuries on different parts of his body. The gun allegedly used in the commission of offence, was recovered at the instance of the accused-petitioner. In presence of the evidence described above a prima facie case appears to have been established by the prosecution against the accused-petitioner.
11. The point raised on behalf of Muhammad Yusuf, accused-petitioner as to the tampering with the F.I.R. By changing its date, the relationship of the witnesses inter se and with the deceased persons including the point relating to identification, certainly relate to the detailed merits of the case. While considering a bail application of an accused person involved in a non-bailable offence punishable with death or imprisonment for life, bail is not allowed if there appear reasonable grounds for believing that he has committed such offence unless the case is covered by the provisions of section 497, Cr.P.C. Or it appears to such Court at any stage of investigation, inquiry or trial that there are no reasonable grounds for believing that the accused has committed a non-bailable offence and there are sufficient grounds for further.Inquiry into his guilt under subsection (2) of section 497, Cr.P.C. The trial Court after considering the relevant facts, declined the concession of bail to the accused-petitioner. The points raised by the learned counsel, as discussed above, relate to the detailed merits of the case which cannot be gone into at bail stage as the rule in such cases involving death penalty or imprisonment for life is that bail shall be granted only if there are no reasonable grounds for believing that the accused is guilty of the charge or the case is such that it requires further inquiry. If such ground exist tending to connect the accused with the alleged crime, bail should be refused without going into deeper appreciation of merits of those grounds and the evidence on which those are rested unless it is found that the charge is groundless or unsupported by any evidence. Reliance in this regard may be placed on Fazalur Rehman v. The State PLD 1981 SC (AJ&K) 10 wherein it was held as under:-- "If such grounds exist tending to connect the accused with the crime, bail should be refused without going into deeper appreciation of the merits of those grounds and the evidence on which they are rested, which is the function exclusively of the trial Court. However, if it is found that the charge is groundless i,e, to say unsupported by any evidence or its absurdity stands exposed on a plain view or the charge on its face value is reduced to a minor one, which is not punishable with death and transportation for life, bail can be allowed."
' A similar proposition came under consideration before the Supreme Court of Pakistan in the case titled Sanatta v. The State 1982 SCMR 208 wherein it was resolved as under:-- "Section 497---Bail, refusal of---Petitioners ascribed specific roles but other accused released on bail not assigned any overt act---Fact of medical report not agreeing with amount of eye- witnesses---May be relevant factor at trial yet such matter cannot be gone into deeply at bail stage---Incriminating weapons recovered from accused petitioners and found to be stained with blood---Dictum laid down in PLD 1972 SC 81 that contradictory versions as to specific roles assigned to accused necessitated further inquiry entitling petitioners to grant of bail--,To be read in light of peculiar facts and circumstances of each case and not universally applicable particularly when facts of case under decision different from facts of case referred---Discretion exercised by High Court in refusing bail, held, not exercised illegally or perversely."
12. In view of the facts and law discussed above the petition merits no consideration. The trial Court has rightly refused bail to the accused-petitioner C after considering the relevant facts.
13. It is contended by the learned counsel for the complainant that the accused-respondent, Ahmed Din is specifically mentioned in the F.I.R. Supported by two witnesses of prosecution, alongwith the corroboration by medical report, showing injuries to the deceased person caused by a .12 bore gun allegedly fired by the said respondent. The subordinate Court, after considering the facts involved in the bail application of the accused-respondent, allowed the concession of bail particularly keeping in view the fact of doubt of using the gun allegedly recovered from the said accused-respondent, by another accused, Muhammad Akram, during the occurrence. It was mentioned in the trial Court's order that the prosecution is doubtful about the accusation levelled against the said accused-respondent and as such they have used the words "the accused is left at the discretion of the Court". For my own satisfaction, I have also gone through the police diaries, including the relevant diary quoted by the District Criminal Court. It may be mentioned that the opinion of the Investigating Officer for the use of the relevant gun by another accused and its recovery from the accused-respondent for the compelling circumstances of being nominated in the F.I.R. By the complainant party, definitely brings the case of the accused-respondent within the ambit of further inquiry though the Trial Court has gone too far to discuss all the detailed merits, including the relevant diary quoted by it. All the Courts,- particularly the trial Court should avoid from embarking upon the merits of the case lest it may prejudice the case of either party. However, the fact remains that the prosecution is not sure about the part attributed to the accused- respondent in commission of the offence. Therefore, there are sufficient grounds for further inquiry into his guilt. The contentions of the learned counsel, in the light of above facts, are found to have no substance in them. It may also be mentioned that mere allegation of heinous offence may not be a ground to refuse bail as the same cannot be withheld as punishment. Reliance in this regard is placed on the case titled Muhammad Bashir v. The State PLD 1983 SC (AJ&K) 8, wherein it was held as under:- " "It is the basic principle of law that the bail is not to be refused as a punishment. Merely on the allegations that a person has committed an offence punishable with death or transportation of life unless reasonable grounds appear to exist to disclose their complicity. The wisdom behind it is that if an accused in view of the circumstances of a given case is finally acquitted, how can he be compensated for his detention, in the judicial lock-up during the trial. Therefore, the law allows concession of bail to such a person of course pending further enquiry into his guilt."
The trial Court in this case after discussing the relevant facts, proceeded to allow the concession of bail to the accused-respondent on reaching the conclusion that his case requires further probe into his guilt. This order does not appear, in any way, against the settled principles of law established by the superior Courts and requires no interference by this Court.
12. In view of the above discussion, both the petitions stand dismissed.