' Through this revision petition the complainant Taj Din has assailed the order of District Criminal Court, Bhimber, dated 7-8-1997 whereby the respondents Nos.1 and 2 were released on bail.
2. The precise facts culminating into present revision petition are that the complainant filed a F.I.R.
At Police Station Barnacle wherein it was alleged that his son Mr. Muhammad Abbas and Muhammad Aslam (accused) and a fight during Ramzan on account of which Muhammad Aslam was injured by fire-arm at the hands of his son. Consequently, Mr. Muhammad Abbas was in jail and Muhammad Shafique (deceased) was defending his son in legal matters. According to the complainant, the complainant party reached a compromise by the intervention of Muhammad Fayyaz, Salah-ud-Din alias Teepu and Haji Muhammad Tufail etc. And Muhammad Aslam was compensated by paying him Rs, one lac. However, Muhammad Aslam accepted the compromise provided the complainant party (Haji Taj Din etc.) apologise from his father Mr. Allah Ditta by visiting this native Village Paur. The complainant party accordingly decided to visit the said village on 23-3-1997. The complainant along with Muhammad Shafique, Abdur Rahman, Salah-us-Din and Muhammad Fayyaz departed for Village Paur from Lahore on 23-3-1997 at about 4/5 O'clock early in the morning on a Jeep No,159-733 Karachi and reached a bridge near Paur at about 9 a.m.
They were obstructed by Muhammad Aslam, his brother Mazhar Iqbal and another anonymous person who were armed with fire-arms. Muhammad Shafique was driving the vehicle and by stopping the vehicle they were asked by Muhammad Aslam and others to get down. Muhammad Shafique got down from the vehicle and inquired the matter whereupon Muhammad Shafique and his companions were threatened by the accused party to face the consequences of assisting Muhammad Abbas. The accused party opened fire by ,Kalashnikovs. Muhammad Shafique was injured by the firing of Aslam and Mazhar Iqbal whereas Mr. Salah-ud-Din was injured by the firing of anonymous person who was later on known as Shaukat. The accused also fired at the vehicle and ran away from the place of occurrence. According to prosecution, the occurrence was witnessed by the complainant himself and his companions Muhammad Fayyaz, Abdur Rehman and Salah-ud-Din.
3. Initially the case was registered under section 324/341/337, A.P.C. The injured person Muhammad Shafique succumbed to the injuries and section 302, A.P.C. And 13/20/65, Arms Ordinance was also added. During investigation the statements of complainant and other eye-witnesses including injured witness Salah-ud-Din were recorded. Post-mortem report and medico-legal report regarding injury on the person of Salah-us-Din were obtained. The weapons of offence (Kalashnikovs) were recovered from the accused Muhammad Aslam and Mazhar Iqbal at their pointation. Blood-stained pieces of glass and Tar-coal etc. Were recovered from the spot on the same date i,e, on 23-3-1997. Bullet riddled Jeep No,159-733-Karachi was also taken into custody on the very day. The crime-empties of Kalashnikovs Numbering 21 and blood-stained clothes of the deceased were also taken into possession by the police on the same day. The Chemical Examiner Report pertaining to nature of the blood found on different articles and report of Fire-arms Expert were also obtained. After completion of investigation a challah under sections 302/324, 341, A.P.C.
And 13/20/65, Arms Ordinance was presented against the accused respondents in the Court of competent jurisdiction.
4. The respondents are now facing trial before District Criminal Court, Bhimber. During trial the respondents moved the trial Court to enlarge them on bail. The request of the respondents were honored by the said Court and consequently they were given the concession of bail through the order, dated 7-8-1997. It is the aforesaid order, the legality and validity of which has now been challenged through this revision petition.
5. The learned counsel for the complainant while assailing the impugned order contended that the respondents were nominated in the F.I.R. Which was promptly lodged and they were attributed an unambiguous role. The version given in the F.I.R. Stood corroborated by the eye-witness including one injured witness, the learned counsel submitted. According to the learned counsel the witnesses were natural one. The learned counsel further submitted that the ocular testimony found corroboration by post-mortem report and medico-legal report. It was also argued that weapon of offences were also recorded at the instance of accused/respondents. The articles recovered from the spot, reports of Fire-arms Expert and Chemical Examiner also corroborated the F.I.R., the learned counsel maintained. The learned counsel vehemently argued that the trial Court acted quite contrary to law governing bail matters while releasing the respondent on bail.
6. The learned counsel representing the respondents while supporting the impugned order argued that the trial Court has rightly allowed the bail application and the impugned order warrants no interference.
7. I perused the record of the case keeping in view the respective contentions of the learned counsel for the parties.
8. No doubt, the deeper appreciation of evidence at bail stage is not the requirement of law pertaining to bail matters 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. In the present case the respondents are nominated in the F.I.R. Which was lodged without any delay. They were attributed a clear role. The occurrence was witnessed by four eye- witnesses including complainant. One of the eye-witnesses was also injured during incident. The circumstantial evidence in shape of recovery of weapons of offence (Kalashnikovs) at the potation of accused respondents, the post-mortem report, the medico-legal report of injured person, recoveries of the blood-stained articles from the spot on the same day, the Reports of Fire-Arms Expert and Chemical Examiner prima facie link the accused respondents with the alleged offence.
The case against the respondents clearly falls under section 497(1), Cr.P.C. By no-stretch of imagination it can be shifted to subsection (2) of section 497, Cr.P.C. The trial Court miserably failed to exercise its discretion in a judicial fashion. The respondents were released by the trial Court on no earthly reasons. The ground given in the impugned order appear to be quite flimsy one.
9. It is well-settled principle of law that discretion exercised by a lower Court in a capricious manner or against the settled principle of law pertaining to bail and the order passed by exercising the same arbitrarily cannot be allowed to sustain. Such-like discretionary orders are to be recalled being requirement of law. The evidence available on record do not suggest to enlarge the respondents-accused on bail and the impugned order merits interference by this Court.
' I, therefore, accept the revision petition and recall the impugned order, dated 7-8-1997 by rejecting the bail application of accused respondents.
Revision accepted.
[Lahore] Before Muhammad Asif Jan, J MUHAM MAD NADEEM ---Petitioner versus THE STATE---Respondent Criminal Miscellaneous No,6179/B of 1998, decided on 17th December, 1998.
Criminal Procedure Code (V of 1898)--- ----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(3) & 7---Bail, grant of---Offence of Zina-bil-Jabr allegedly committed by accused, prima facie, fell within the prohibition contained in S.497(1), Cr.P.C.---Accused, however, according to his birth certificate was 17 years and 7 months old at the time of commission of offence and he having not attained the age of 18 years was not liable to be punished under S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 but under S.7 thereof where the punishment was 5 years' imprisonment---Case of accused, thus, was not hit by the prohibitory clause of 5.497(1), Cr.P.C.---Accused was admitted to bail accordingly. [pp, 880, 881] A, B, C & D Shakeel Ahmad v. The State 1983 PCr.LJ 1942 and Zulfiqar Ali alias Kaka v. The State 1986 PCr.LJ 1013 ref. Sh. Tariq Amin Khalid for Petitioner.
Masood Sadiq Mirza and Irshad Mahmood Sheikh for the State.
' Muhammad Nadeem a youngster of about 17 years age was arrested on the 21st of August, 1998 in pursuance of a case registered against him vide First Information Report No,313 of 1998, dated the 10th of August, 1998 at Police Station Saddar Wazirabad, District Gujranwala recorded under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance of 1979 (Ordinance No,VII of 1979)
(hereinafter referred to as Ordinance), regarding an occurrence which took place on the 9th of August, 1998 at noon time in an area known as Mohallah Qudrat Ababd which is about 2 miles from Police Station Saddar Wazirabad, District Gujranwala where the first information report was lodged on the next day at 10-00 a.m. By Muhammad Mahmood, brother of Mst. Imrana who was allegedly raped by Muhammad Nadeem petitioner.
2. The offence allegedly committed by the petitioner prima facie would fall under subsection (3) of section 10 of the Ordinance which is punishable with imprisonment for a term which may extend to 25 years and would, thus, fall I A within the prohibition contained in subsection (1) of section 497 of the Code of Criminal Procedure which provides that bail shall not be granted where there are reasonable grounds for believing that an offence punishable with death or imprisonment for life or imprisonment for 10 years has been committed. It was for this reason that bail was declined to the petitioner by the learned Additional Sessions Judge of Wazirabad.
3. According to the birth certificate of the petitioner which has been placed on the record, the petitioner was 17 years and 7 months old at the time of occurrence.
Section .7 of the Ordinance provides the punishment for Zina or Zinabil-Jabr where the offender is not an adult lays down that:- "A person guilty of Zina or Zina-bil-Jabr shall, if he is not an adult, be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both, and may also be awarded the punishment of whipping not exceeding thirty stripes: ' Provided that, in the case of Zini-bil-Jabr, if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded with or without any other punishment."
4. The word adult has not been defined in section 7 of the Ordinance. However, section 2 clause (a) of Ordinance defines the word "adult" and reads as follows:-- "Section 2 definitions-- (a) ' adult' means a person who has attained, being a male, the age of eighteen years or, being a female, the age of sixteen years, or has attained puberty."
5. Read conjunctively it becomes crystal clear that a person being a male who has not attained the age of 18 years will not be punished if found guilty under section 10 subsection (3) of the Ordinance but under section 7 of the Ordinance where the punishment is 5 years imprisonment. Thus, the case of such a person would not fall within the prohibition contained in subsection (1) of section 497 of the Code of Criminal Procedure.
5-A. A similar view has been taken by this Court in the case of Shakeel Ahmad v. The State 1983 PCr.LJ 1942 and Zulfiqar Ali alias Kaka v. The State 1986 PCr.LJ 1013.
6. Resultantly, the petitioner is granted bail provided he furnishes bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of trial Court.
7. Before parting with this petitioner, I would like express my gratitude for the valuable assistance given at the Bar by the learned counsel for the petitioner and the State.
' Copy Dasti on payment of usual charges.