' This appeal is to assail the order of District Criminal Court PoonchRawlakote dated 18-3-1997 whereby an ad interim relief granted to the respondents on 11-12-1996 was confirmed by the said Court.
2. The precise facts culminating into above titled appeal are that the complainant Shukar Muhammad lodged a F.I.R. At Police Station Datote on Date 8-12-1996 wherein it was alleged that on 6-12-1996 while he alongwith his family members was sleepinig on the ground floor of his house, they got up from sleep on account of a powerful explosion on the upper storey of the house. After a few while, the respondents accused also fired by Klashnikovs at his house who were identified by the complainant with the help of torch light by opening a window. According to the report, one of the accused respondent Mr. Iqbal alias Bhutto raised a Lalkara to do away with the complainant and his family members. The accused respondent managed to flee from the spot on account of hue and cry raised by the complainant. As per F.I R. The house of the complainant was badly damaged by the act of the respondents-accused. The motive according to the prosecution, is previous rivalry between the parties for certain past acts mentioned in the F.I.R. The police after receiving this report registered a case under section 3 Explosive Act and section 324, A.P.C.
3. During investigation, the accused respondents approached the District Criminal Court Rawlakote-Poonch for their enlargement on bail and the said Court granted an adinterim relief on 11-12-1996 which was later on confirmed by the said Court through the order dated 18-3-1997. It is the aforesaid order the validity of which has now been challenged through the present appeal.
4. The learned counsel for the appellant while assailing the impugned order, argued that the accused respondents were linked with the alleged offence and the Court below acted quite contrary to law governing the bail matters while allowing their pre-arrest bail application. The said Court while passing the impugned order touched the merits of the case which definitely affected the trial, the learned counsel submitted. It was further argued on behalf of prosecution that no ulterior motive or mala fide on the part of the prosecution was prima facie established by the defence and the case registered against the respondents was touched very lightly. The discretion exercised by the Court below offended the settled principles of law regarding bail matters, the learned Counsel maintained.
5. As against this, the learned counsel for the respondents while supporting the impugned order contended that the Court below committed no illegality while allowing bail application. The case against the respondents did not fall under the prohibitory clause of section 497, Cr.P.C. And as such the impugned order merited no interference by this Court, the learned defence Counsel argued. It was also submitted on behalf of respondents that the F.I.R. Was belated by 48 hours which made the case as doubtfull and absence of impartial eye-witnesses further suggested to shift the case to section 497(2), Cr.P.C. As per contention of the defence, it was not possible to identify the respondents keeping in view the time of occurrence i.e, 11 p.m. At night.
6. I perused the record of the case keeping in view the respective submissions of the learned Counsel for the parties.
7. The police authorities while conducting the investigation recorded the statements of complainant, his sons and his wife on the same day on which the case was registered i.e, 8-12- 1996. The spot inspection was made on 9-12-1996 whereupon the bullet riddled in sheets, and cracks in the walls of the said house were noted by the Investigating Officer. The damaged windows and a pit on the floor were also seen by the police concerned. The pieces of glass and some material used in preparation of explosives was also taken into custody. The empties of Klashnikov numbering-13 were also taken into possession from the place of occurrence. The statements of recovery witnesses were also recorded. However, the weapons of offence could not be recovered as the accused persons were on pre-arrest bail which was later on confirmed by the Court below.
8. Though the detailed examination of evidence on record is not the requirement of law but nevertheless the fact remains that cases regarding bail are not and cannot be decided in vacuum.
The Court has to form a view by assessing the evidence on record tentatively.
9. The punishment provided under section 3 of Explosive Act in Pakistan is death or imprisonment for life under the amended law brought on statute book during seventies but this amendment has not been adopted in Azad Kashmir. The punishment provided under old law which still holds field in the territory of Azad Kashmir is 10 years maximum for the aforesaid offence. The punishment for the offence under section 324, A.P.C. In absence of injury is also not more-than 10 years. Thus, the case against the respondents falls out of the ambit of prohibitory clause of section 497, Cr.P.C. As in Azad Kashmir the offends for which punishment for death or life imprisonment is provided, comes within the purview of prohibitory clause of section 497, Cr.P.C. However, it does not necessarily mean that the person involved in non-bailable cases which do not come within the ambit of prohibitory clause ipso facto merit the concession of bail.
10. The criminal cases while dealing with the bail matters are decided on the basis of their peculiar facts. The whole prosecution story revolves around the statement of complainant himself and prime facie he is the only eye-witness according to prosecution. The other reported eye-witnesses namely Muhammad Saeed, Muhammad Sajjad and Babar Jan wife of the complainant rely on the statement of the complainant. The complainant according to F.I.R. Identified the respondents through a window with the help of torch light as the occurrence took place at mid-night. The contention of the F.I.R. When assessed tentatively, prima facie suggest to take the statements of Mst. Babar Jan, Muhammad Sajjad and Muhammad Saeed out of the ambit of eye-witnesses. It appears that the fact of identification of the respondents, the position in which they were standing in front of the house and role played were conveyed to the other inmates of the house through the complainant. The fact of identification with the help of torch light by opening a window especially when the respondents were standing armed with deadly weapons in front of the house needs further inquiry which is only possible during trial. The fact of explosion is unwitnessed as there is nothing on record that who detonated the device. No specific role has been attributed to the accused persons. There is a general allegation of firing and detonating an explosive device against the respondents and that, too, by basing the same on the sole statement of complainant.
11. The overall facts of the case do not, prima facie, suggest to award capital punishment for the alleged offences. The police record shows that the investigation is complete and there remains nothing to be investigated from the respondents. The challan is ready to be presented before the competent Court.
In view of the position as stated above, I feel persuaded to uphold the impugned order. However, the remarks touching the merits of the case shall stand expunged from the impugned order. The trial Court shall decide the case without being influenced by the remarks in the impugned order.
The revision petition merits no consideration and the same is hereby dismissed.