' This revision petition has been directed against an order of District Criminal Court, Bhimber, dated 8th February, 2000, whereby the application for grant of bail to the petitioner was dismissed.
2. The facts precisely stated are that:-Muhammad Sarwar, complainant, stated before Police on 3- 8-1996 that due to the past enmity and political rivalry, the petitioner used to create problems but he always ignored it. On 2-8-1996, on the complaint of his wife that the water motor was used without her permission, Azhar and Shakoor abused his wife and pelted stone upon her. On 3-8- 1996, he accompanied with his mother Mst. Razia Begum, Muhammad Asghar, Muhammad Mauzam, Muhammad Arshad, Qayyum and Tanveer was proceeding towards Gandhala Bazar and at about 7 a.m. When they reached near the house of Raja Razzaq, he found Shakoor, Altaf, Shahbaz, Mushtaq, Azhar, Sadiq, Hanif, Hafeez, Abdul Aziz and Muhammad Khurshid waylaid, armed with deadly weapons. Musthaq, accused-petitioner, raised a 'Lalkara' and all the accused-persons launched an attack upon them. His mother forbade Mushtaq but he did not pay any heed to her and shot a fire upon her with his Kalashnikov, which hit her abdomen. Shakoor shot a fire with his Kalashnikov upon Muhammad Muazam which hit the lower part of his throat. He also shot a second burst which hit upon his abdomen and left leg whereas Muhammad Altaf shot a burst of his Kalashnikov upon Muhammad Arshad who fell down upon the earth. It was further alleged that Shahbaz shot a fire of Kalashnikov upon the complainant which hit his left thigh. Azhar also shot a burst of Kalashnikov upon Muhammad Ashgar which hit his left leg. Abdul Aziz shot a fire with his kalashnikov upon Qayyum which hit his abdomen. Khurshid caused a fire with his kalashnikov upon Tanveer which hit upon right side of his head. Meanwhile, Muhammad Sharif, Sheikh Muhammad Rashid, Muhammad Nazim, Muhammad Zulfiqar, Muhammad Boota and Muhammad Reaz reached at the spot who were also raising Lalkaras. The mother of the complainant, his brother Muhammad Muazam and Muhammad Arshad died spontaneously at the spot. After the occurrence, Mushtaq and Shakoor accused made an announcement upon the loudspeaker of the mosque and threatened the local inhabitants of areas neither to pick up the dead bodies nor to give evidence against them.
3. On this report a case was registered at Police Station Chowki, Bhimber. After necessary investigation Shahbaz, Altaf, Azhar Mehmood and Sadiq were put on trial under sections 302, 324, 341, 148, 149 and 34, Azad Penal Code read with section 13/20/65, Arms Ordinance whereas Muhammad Hanif, Hafeez, Aziz, Muhammad Rashid, Khrushid, Sharif, Muhammad Azam, Muhammad Zulfiqar, Muhammad Boota and Muhammad Reaz were extended the benefit of section 169, Cr.P.C. Shakoor with Mushtaq accused-petitioner absconded after the occurrence. The accused-petitioner moved various applications for bail before arrest which were dismissed but he did not Court arrest. On 1-12-1999, he surrendered and moved a bail application after his arrest which was also dismissed by the Court below on the ground that, prima facie, reasonable grounds do exist to connect the accused with the offence charged with who also remained an absconder for three (3) years. Feeling aggrieved by the aforesaid order the instant revision petition has been presented before US.
4. Mr. Abdul Majeed Mallick, the learned counsel appearing on behalf of the accused-petitioner, argued that District Criminal Court, Bhimber has committed an error not allowing bail to the accused-petitioner. He pointed out that according to the F.I.R. Sixteen (16) accused-persons were named in the case amongst them ten (10) have been extended the benefit of section 169, Cr.P.C.
And only six (6) accused-persons were put on trial. According to him, it is admitted on the part of prosecution that at the time of the occurrence neither the petitioner was having a Kalashnikov with him nor a Kalashnikov was recovered from him. He further agitated that according to the prosecution the crime was committed at one place but during the investigation three different places have been alleged as places of occurrence. In this respect, he has referred to us the statements of the complainant, Muhammad Sarwar and Muhammad Asghar (P.W.3). The learned counsel laid stress upon the evidence of aforesaid (P.Ws.) and contended that both the prosecution witnesses have changed the prosecution story, thus, the present case has become a case of two versions, one lodged in the F.I.R. And the other brought forward through the prosecution evidence. But the Court below has totally ignored the factum of two versions. The learned counsel also submitted that ascension of the petitioner has not been proved and the absence the petitioner cannot be regarded as his ascension. The learned counsel maintained that it has been alleged in the F.I.R. That Abdul Aziz and Khurshid shot fires with their Kalashnikovs and the prosecution witnesses got injured by their firing but both of the accused-persons were declared innocent and released by the Police. He also argued that in the light of the Medico-legal Report the injuries upon the person of Tanveer (P.W.5) were inflicted by the blunt weapon whereas it was alleged in the F.I.R. That Khurshid caused these injuries with his Kalashnikov. The learned counsel has drawn our attention towards this statement of Muhammad Asghar (P.W.3) wherein, according to him, Muhammad Ashgar did not depose that whether the petitioner caused any fire upon Razia Begum, deceased. The learned counsel strenuously argued that no prima facie. Case is made out but the Court below failed to appreciate the principles governing the bail matters and the impugned order being perverse and arbitrary is liable to be set aside. In support of his contentions reliance was placed on 2000 PCr.LJ 980.
5. On the contrary, Raja Mazhar Iqbal, the learned counsel for the complainant, has controverted the arguments on behalf of the petitioner. He contended that the occurrence took place at broad daylight after preplanning and premeditation. The FIR. Was lodged promptly without any delay. He further argued th it all the accused persons are nominated in the F.I.R. Including the petitioner.
During the course of occurrence three (3) persons were killed whereas four (4) were severely injured. According to him, the petitioner is clearly attributed in the F.I.R. That he shot a fire on Razia Begum with his Kalashnikov which hit upon her abdomen. He further argued that the prosecution story has been amply supported by the statements of the prosecution witnesses recorded under section 161, Cr.P.C. As well as by their depositions before the trial Court. The learned counsel argued with vehemence, that the accused-petitioner applied for pre-arrest bail on various occasions but he never surrendered before the Court and remained absconder for more than three (3) years. He submitted that on the sole ground of the ascension the concession of bail could be refused to him.
The learned counsel has pointed out that accused-pettitioner was declared absconder after taking appropriate proceedings under sections 87 and 88, Cr.P.C. Which clearly prove that abscondence of the accused was to avoid the arrest in the case registered against him. The learned counsel has defended the impugned order and also cited the following authorities in support of.His contentions:--
(i) PLD 1983 SC (AJ&K) 2000 (sic).
(ii) 2000 PCr.LJ 60 and 214.
(iii) An unreported judgment of Supreme Court of AJK titled Abdul Rehman v. Shehbaz Qamar and 5 others, dated 21-8-1998.
6. Mr. Muhammad Mushtaq Chaudhry, the learned Additional Advocate-General, appearing on behalf of the State, has fully owned and supported the contentions of the learned counsel for the complainant.
7. We have heard the learned counsel for the parties and have perused the material placed on record. It appears that the accused-petitioner in spite of the knowledge of the pendency of the criminal proceedings did not Court arrest either before the Police or the Court. The petitioner applied for bail before arrest on 22-8-1996 before this Court which was allowed to him till 2-9-1996 and was directed to approach District Criminal Court, Bhimber but he did not surrender before District Criminal Court, Bhimber and absconded. He again appeared before District Criminal Court Bhimber on 21-4-1997 for bail before arrest but did not appear before the Court on 12-6-1997, when his bail before arrest was not confirmed. He once again presented a petition for pre-arrest bail before District Criminal Court, Bhimber on 13-4-1998 but did not appear before the Court thus, the said petition was also dismissed. At last, he surrendered before Police on 1-12-1999 after three (3) years three (3) months and twenty-three (23) days of the occurrence. It, therefore, follows that there hardly remains any doubt about this fact that the petitioner knew that he was wanted by the Police but he did not surrender for more than three years and became fugitive from law.
8. It is well-settled that fugitive from law and Courts loses some of the normal rights granted by the procedure as well as substantive law. The conduct of the accused-person is very much relevant and cannot be ignored under any law or principle. Anyone who by his conduct thwarts investigation or trial is not eligible to any discretionary relief. The above-stated conduct of the accused-petitioner shows that he had absconded and his unexplained noticeable ascendance for more than three years, prima facie, was wilful to avoid his arrest. I cannot accept this argument of the learned counsel for the petitioner that the absence of the petitioner does not come in the purview of absconding, especially when he again and again avoided his arrest and did not surrender himself before the Court. Furthermore, he was declared an absconder after taking appropriate proceedings under section 87 of Cr.P.C. Read with sections 204 and 512, Cr.P.C.
9. On this account, the absence of the accused-petitioner was deliberate one and falls within the ambit of 'abscondence' which disentitles him to seek his bail, irrespective of the merits of the case against him. In this respect, reference can be made to a case reported as Mehtar v. The State and another (2000 PCr.0 60) and a case reported as Ghulam Mustafa and another v. The .State (2000 PCr.LJ 1253). The same principle came under consideration before the apex Court in a case reported as Mst. Nasreen Akhtar and 5 others v. Raja Muhammad Asghar (PLD 1983 SC (AJ&K) 1), whereby the following principle was enunciated at page 3 of the report:-- "Although we have heard indepth arguments addressed by the learned counsel for the parties, we have reached the conclusion that we need not to go into all the points raised before us because there are two factors which clearly disentitled the respondent from the concession of bail. We have already observed that respondent Muhammad Asghar was duly named in the F.I.R. But he did not Court arrest. Then he applied for bail before arrest on 4th of October, 1990 but when his pre-arrest bail was not confirmed he did not surrender himself to the Police. There might have been some explanation about the period prior to the making of application at Bhimber but there can be no doubt that after the rejection of his bail from the Court at Bhimber the respondent knew that he was wanted by the Police but still he did not Court his arrest and thus, became a fugitive from law.
In this view of the matter when he again appeared in a Court of law his prayer for bail should have been straightaway declined on the ground that he was a fugitive from law. May be that when the respondent moved his pre-arrest bail on 9th of June, 1991 the Shariat Court did not come to know that his previous application for bail had been rejected but this fact was duly argued before the Zilaee Adalat and subsequently before the Shariat Court but this aspect of the matter was brushed aside for insubstantial reasons. The aforementioned Courts should have followed the rule that concession of bail cannot be extended to an absconder."
10. Even otherwise from all the material placed on record there appear to us reasonable grounds for believing that accused-petitioner has been guilty of an offence punishable of death or imprisonment of life and may not be released on bail. So far the other arguments of the learned counsel for the accused-petitioner are concerned, these deal with the deep merits of the case which is not permissible at the bail stage. Suffice to note that at the bail stage only tentative assessm ent of the evidence and other incriminating material placed on the record has to be made and the Court cannot dive deep into the merits of the case. Furthermore, the Court cannot enter into the exercise of enquiring into the veracity of prosecution evidence and the value of subsequent or earlier statements of such witnesses, as left to be determined by the trial Court.
However, if from the tentative assessment of the evidence on the record, reasonable grounds exist believing that an accused-person is guilty of offence punishable with death or life imprisonment, he is not entitled to the concession of bail. In the presence of the statements of the injured eye- witnesses immediately recorded under section 161, Cr.P.C., we are not impressed by the mere fact that a Kalashnikov was not recovered from the accused-petitioner. In this respect reference can be made to an unreported case of Supreme Court of AJK titled Abdur Rehman v. Shahbaz Qamar and 5 others, dated 21-8-1998 wherein it' was alleged in the F.I.R. That one of the accused Shahbaz Qamar used Kalashnikov along with another accused Aurangzeb which resulted into the death of two persons but instead of a Kalashnikov a "Danda' was recovered from Shahbaz Qamar accused.
In spite of the defective recovery, the apex Court of Azad Jammu and Kashmir had refused the concession of bail to Shahbaz Qamar accused in presence of the eye-witnesses.
11. As regards the investigations of the case, all the Investigating Officers agree that the accused- petitioner was present at the time of the occurrence, thus, his presence coupled with the ocular version and medical evidence, prima facie, connect him with the commission of the crime and the concession of bail cannot be extended to the accused-petitioner on the ground that according to one of the Investigating Officers he was found empty-handed at the time of the occurrence. In this respect, a case reported as Khalil Ahmed v. The State (2000 PCr.LJ 214) can be referred to, wherein it was observed that in spite of the investigation reports of four Police Officers, who found that the accused although was present at the time of occurrence but he was empty-handed, such version of the Investigating Officer being in conflict with the ocular account and the medical evidence, was rejected by the Court and the bail was not granted to the accused.
12. For the foregoing reasons, we have arrived at the conclusion that the discretion exercised by the learned District Criminal Court, Bhimber while refusing the bail to the accused-petitioner is in consonance with the settled principles governing the bail matters. The discretion, thus, having been exercised with due care and caution in a just and legal manner without any perversity or arbitrariness does not warrant any interference by this Court and is maintained. consequently, the revision petition is dismissed.