SARDAR MUHAMMAD NAWAZ KHAN, J.-- This revision petition is directed against the order of District Criminal Court Kotli whereby bail applications moved by the petitioners were disallowed by the said Court vide its order dated 18.3.1998.
2. The precise facts giving rise to the above titled revision petition are that a FIR was lodged at Police Chowki Tatapani District Kotli by complainant Muhammad Yousuf. It was stated in the FIR by the complainant that he belonged to a religion sect namely Aheil-e-Snit-Aljmiat" and he settled a relationship between his son Abdul Qayyum and the daughter of his brother-in-law Mr. Muhammad Bashir to become spouses in future. M/s. Kabir and Muhammad Rafique the real brothers of Muhammad Bashir were annoyed because they belonged to 'Mirzai' community and they were not ready to accept the aforesaid relation unless the complainant alongwith his family members converted himself into 'Mirzai' community. The complainant refused to accept this condition and as such his aforementioned brothers-in-law developed enmity to him. With this background, on 5.12.1997 his to brothers-in-law M/s. Muhammad Kabir and Muhammad Rafique (petitioners) alongwith 2 or 3 other unidentified persons entered into his house by 3 O'clock at night while he was sleeping with his family members. They rose from sleep at some knock and firing.
According to his report, the accused petitioner were identified by complainant and other members of the family. Mr. Muhammad Kabir fired at Mst. Shah Begum w/o complainant with 30 bore pistol and as a result she was injured. Mr. Muhammad Rafique also fired at the complainant twice and subsequently he was also injured. Meanwhile due to hue and cry other members of the complainant's family including his son Muhammad Saghir also rushed to the spot but the accused persons managed to flee from the place of occurrence. As per this report, the occurrence was witnessed by the complainant his wife, son and daughter. This report was sent to Police Station Kotli where a case under Sections 458/324, 337/34 APC read with Section 13 of Arms Ordinance was registered against the accused petitioners.
3. During investigation, the petitioners Muhammad Kabir was arrested and later on he was released on bail by Tehsil Criminal Court Kotli. Mr. Muhammad Rafique approached District Criminal Court Kotli for pre arrest bail and he was granted an ad interim relief. The prosecution feeling aggrieved by the order of Tehsil Criminal Court Kotli moved the District Criminal Court Kotli for cancellation of bail order given by the said Court on the application of petitioner Muhammad Kabir. The District Criminal Court disposed of both the petitions i.e. The pre-arrest bail application moved by the accused petitioner Muhammad Rafique and the application for cancellation of bail order given by Tehsil Criminal Court on the application of accused Muhammad Kabir. The District Criminal Court decided both the applications vide its order dated 12.2.1998. Through the aforesaid order the said Court decided the bail applications on merits and both petitioners were refused to bail. The accused/petitioners did not challenge this order before Shariat Court. Meanwhile the investigation was completed and the petitioners were sent up to face the trial before Tehsil Criminal Court Kotli. The petitioner Refique moved the trial Court for his enlargement on bail failing which he approached the District Criminal Court for concession of bail. The Accused Muhammad Kabir instead of moving a high from against the order dated 12.2.1998, moved again the District Criminal Court for his release on bail. The said Court once again consolidated both the applications and passed the impugned order. It is the aforesaid order the validity of which has been assailed through this revision petition.
4. The learned counsel for the petitioners while arguing the case submitted that the Court below decided the bail applications through a telegraphic order and did not apply its mind to the facts of the case. It was further contended by the learned counsel that the version given in the FIR was not corroborated by the medico-legal report. According to the learned counsel, the FIR, injury report, prepared by the Investigating Officer and medical report were contradictory to each other and as such the case against the petitioners were one of further inquiry. The defence also raised a plea of alibi about Muhammad Kabir petitioner and an affidavit was also presented before the lower Court in this connection. The Court below acted contrary to law pertaining to bail matters while disallowing the bail applications, the learned counsel maintained.
5. The learned counsel appearing on behalf of the complainant and learned Additional Advocate General while controverting the arguments advanced on behalf of the petitioners supported the impugned order. It was contended on the part of the prosecution that .Bail applications were decided on merits by the said Court on 12.2.1998 and being the position, the said Court committed no illegality while passing the impugned order. It was further argued on the complainant's side that the evidence on record suggested to link the petitioners with the commission alleged offences. The parties are close relatives and there was no chance to implicate the petitioners falsely, the learned counsel argued.
6. After considering the respective contention of the parties I perused the record of the case. It is pertinent to note here that the case is sub-judice before the Tehsil Criminal Court Kotli and the said, Court was not moved by the petitioner Muhammad Kabir after the presentation of challan. He moved his bail application directly to District Criminal Court which was disposed of by the said Court through the impugned order. However, the petitioner Muhammad Rafique moved the trial Court for his enlargement on bail after refusal to confirm his ad interim relief granted to by the District Criminal Court Kotli vide its order dated 12.2.1998.
7. The District Criminal Court while passing the order dated 12.2.1998 examined the evidence on record tentatively and considered almost all the points raised subsequently by the counsel for the petitioners. The said Court while deciding the bail applications on 12.2.1998 held that the accused/petitioners were connected with the commission of alleged offences keeping in view the evidence brought on record by the prosecution. The Court below disallowed the second application simply for the reason that no fresh ground were available to the petitioners and they could not be released on bail in absence of such grounds. I think the Court below while delivering the impugned order acted in accordance with settled principles of law governing the bail matters.
The evidence as well as .The objections raised by the petitioners were examined by Court while passing the impugned order dated 12.2.1998. It was not possible under law to re-examine the same points which were already examined and decided. It was not within the competence of the Court below to reopen the case on the same grounds and decide them afresh. The petitioners were at liberty to challenge the order dated 12.2.1998 but they failed to do so. It was only possible for the Court below to release the petitioners on bail provided they satisfied the Court by showing fresh grounds. However, a new plea regarding alibi of Mr. Kabir petitioner was raised by the counsel while arguing the second bail applications. An affidavit sworned by a relative of the said petitioner was also placed on record. This plea was not raised while submitting the prior bail application. Prima facie it appears to be a afterthought. Even otherwise the plea of alibi cannot be given preference over the record made available which prima facie suggests the involvement of the accused in the commission of alleged offences. Morever, the plea of alibi can only be examined during the trial and not at the stage of bail. It is something which requires deep scrutiny and it is only possible during the trial of the case. The affidavit of a relative to support the plea cannot discredit the whole evidence on record to support the prosecution version.
8. As regards the merits of the case the petitioners are nominated in the FIR which was lodged without any delay. The role ascribed to them is unambiguous. There are. As many as four eye- witnesses including to injured witnesses who corroborate the FIR. There is also circumstantial evidence in shape of recovery of empties and crime lead bullets from the place of occurrence. The medico legal report of injured persons and recovery of weapons of offences at the instance of the petitioners also prima facie link the petitioners with the commission of offences. The prosecution also took into custody the blood-stained clay from the spot and blood-stained clothes of the injured persons. There appears prima facie hardly any chance to implicate the petitioners falsely as parties are closely related.
9. In view of the above legal as well as factual position of the case I do not feel persuaded to recall the impugned order. The revision petition merits no consideration and the same is hereby dismissed. However, the trial Court is at liberty to consider their request for bail after recording the statements of the injured persons. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.