' The revision petition has been directed against an order of District Criminal Court, Mirpur, dated 4- 7-2000, whereby the bail application filed by the petitioner, herein, was dismissed.
2. The brief facts giving rise to the present petition are that a case under section 364-A, A.P.C., was registered against the accused-petitioner on the pretext of F.I.R. No,110 of 1997 at Police Station Mirpur, whereby it was alleged by the complainant that she is mother of the deceased, Muhammad Shafique, aged 9 years who was a student of class three in O.P.F. School, Mirpur. Her husband is in Saudi Arabia for his livelihood. Because of the holiday Muhammad Shafique, deceased, was at home who was called out of the home by Muhammad Shoaib but Muhammad Shafique did not go out of the house. At 10-30 a.m. When Muhammad Shafique went in to the street for playing game and did not come back for a long time, she became worried and tried to know about the whereabouts of Muhammad Shafique from the neighbours and relatives but failed.
During search at 3-30 p.m. Muhammad Zahir and Tariq Mehmood told her that at about .11-00 a.m.
They saw Muhammad Shafique sitting in a red Car No,5674/IDD with Asif, Shoaib and Shahid Anjum, who were proceeding towards Bandral Toll Post. According to her estimation, his son Muhammad Shafique has been kidnapped for sake of ransom and the accused persons will commit his murder. It was further contended that Muhammad Shafique is wearing shirt and trousers of almond colour and a Hawai Chapple {{URDU TEXT}} On this report a case under section 364-A, A.P.C. Was registered.
3. During the investigation it was found that the accused-petitioners have committed the murder of 'Muhammad Shafique by inoculating him Pentothal injections. The dead body was allegedly recovered at the instance of the accused-persons beneath the bushes beside a big stone from Jungle of village Ghania near Pirgali. Besides this one pair of Hawai 'Chapple of the deceased was also recovered at the instance of Shahid Anjum, accused whereas two used pentothal injections with water, two disposable syringes and one unused pentothal injection with water were allegedly recovered and taken into possession at the instance of Shahid Anjum, accused from the bushes of Ghania Jungle. A watch of the deceased was also recovered at the instance of Shahid Anjum, accused. On this, the offences under sections 302 and 34, A.P.C. Were also added. It was alleged by the prosecution that the accused-petitioners have committed the offence of murder for the sake of ransom of rupees ten Lacs.
4. The accused-petitioner alongwith Shoaib and Shahid Anjum was put on trial who pleaded not guilty. The evidence of P.Ws. Zahida Parveen, Tariq Mehmood, Muhammad Tahir, Muhammad Abdullah, Khalid Mehmood, Asmatullah, Muhammad Ehsan Headconstable Police and Muhammad Rasheed has been recorded by the trial Court, while the prosecution has given up the P.Ws. Nos.13, 14 and 15. In this manner now the evidence of P.Ws. Nos.16, 18, 19, 20 and 21 has to be recorded only.
5. The accused petitioner firstly presented a bail application on 10-5-1999 on the ground that he remained in custody for continuous period exceeding 2 years and his trial has not yet concluded, which was dismissed by the District Criminal Court, Mirpur, vide its order, dated 22-6-1999. The petitioner again instituted another bail petition before District Criminal Court, Mirpur, on 5-8-1999 but the bail was declined by the Court on 15-11-1999. Feeling dissatisfied by the aforesaid order, the petitioner approached to this Court on 19-11-1999 but the concession of bail was not extended to the petitioner on the ground that the petitioner failed to challenge the order, dated 22-6-1999, therefore, the aforesaid order has attained finality and the petitioner cannot be allowed to raise the same ground in his successive bail application before the trial Court. However, this Court directed that the trial Court shall dispose of the bail application after hearing fresh arguments to the extent of fresh grounds mentioned in paras. 4 to 6 of his Bail Application No,283 of 1999 which were not attended to by the Court below at the time of disposal of the abovementioned bail petition. It will be relevant to observe here that the petitioner did not choose to challenge the aforesaid finding of this Court made in respect of ground of statutory delay. Following the direction of this Court, the District Criminal Court, Mirpur, after hearing fresh arguments has again declined to grant bail to the petitioner vide its order, dated 7-4-2000, against which the present revision petition has been preferred to this Court.
6. On 10-10-2000, an application under section 561-A, Cr.P.C. Was also moved on behalf of the accused-petitioner.
7. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the petitioner, has vehemently argued that the District Criminal Court has committed an error in refusing bail to the accused- petitioner. He has contended that the word "shall" appearing in Code of Criminal Procedure (Amendment) ,Act, 1997, clearly connotes that if the trial of an offence punishable with death is not concluded within two years the detained accused shall be released on bail whereas in the opinion of the trial Court, the aforesaid powers rest with the discretion of the Court which is an erroneous interpretation of law. He has further submitted that the accused-petitioner does not come in the purview of hardened and dangerous criminal as recorded by the trial Court, therefore, the impugned order is an absence of the process of the Court. In this manner this Court has been given ample powers to meet such eventuality and pass any order in the interest of justice under section 561-A, Cr.P.C. According to him, the failure on the part of challenging the previous orders of District Criminal Court and this Court, do not place any restriction or limit the powers of this Court but this Court can also review its earlier order. The learned counsel has also contended that according to the report of Chemical Examiner no poison was detected from the dead body. He has submitted that the allegation of inoculating the injection has not been levelled against the accused-petitioner, therefore, except last-seen evidence, no further evidence has been produced against the petitioner, thus, he cannot be involved with the commission of murder. The learned counsel has maintained that the recovery of the dead body of the deceased boy was allegedly effected at the instance of both the accused-persons, thus, none of the accused-persons can be implicated on the basis of the aforesaid recovery. The learned counsel has emphasized that in the given circumstances of the case when no evidence before or after the occurrence in respect of the petitioner being hardened and desperate has been produced by the prosecution, the accused- petitioner cannot be declared hardened and dangerous criminal in the light of the occurrence of the present case. The learned counsel has pressed into service the submission that according to the post-mortem report the time of death has been recorded 12-30 p.m. Whereas the F.I.R. Was lodged at 4-30 p.m. But the F.I.R. Does not disclose any demand of ransom by the accused persons.
If the accused-petitioners would have demanded the ransom it would have been mentioned in the F.I.R. Which was lodged after four (4) hours of the death of the deceased. The learned counsel has zealously argued that the trial of the accused could not be concluded for more than three (3) years, therefore, the trial Court has failed to interpret the relevant law in its true perspective, even otherwise, sufficient grounds do not exist to connect the accused-petitioner with the commission of crime.
8. Mr. Muhammad Sharif Tariq, the learned counsel for the accused-petitioner, has owned the arguments raised by Mr. Abdul Majeed Mallick, Advocate, and submitted that the F.I.R. Was recorded after 6 hours of the occurrence which makes the prosecution case suspicious and doubtful. He has also argued that Tariq Mehmood (P.W.2) and Muhammad Zahir (P.W.3) are chance witnesses who have been allegedly cited as last-seen witnesses, but no corroborative evidence has been produced by the prosecution in support of the evidence of the aforesaid witnesses. The learned counsel has vigorously argued that according to the facts and circumstances of the case, the punishment of Qisas cannot be imposed upon the petitioner and utmost it is a case of sections 318 and 319, A.P.C.
9. Mr. A.K. Ansari, Advocate, the learned counsel for the complainant, has controverted the arguments advanced by the learned counsel for the petitioner. He has submitted that the F.I.R.
Cannot be termed as belated F.I.R. Because it has clearly been mentioned therein that when the deceased did not reach home the complainant tried to know his whereabouts whereupon at 3-30 p.m. She was informed about the occurrence and at 4-30 p.m. The F.I.R. Was recorded at Police Post Thothal. The father of the deceased was in Saudi Arabia, therefore, no such delay has occurred which could affect the prosecution case adversely. He has further argued that the prosecution did not know about the timing of the death of the deceased but the relevant entry in inquest report was recorded according to the statements of the accused persons. The learned counsel has also contended that the present case is not a case of negligence but a case of criminal mind and a brutal murder. He has maintained that the prosecution has produced strong evidence to implicate the accused-petitioner with the commission of crime and the perusal of the evidence of Muhammad Zaheer (P.W.3) reveals that dead body was recovered at the instance of the petitioner, thus, question of joint recovery does not arise. The learned counsel has submitted that the prosecution witnesses cannot be termed as chance witnesses because in a case which is committed on public path, wayfarer are always natural witnesses. Furthermore, the prosecution witnesses were not animus to the accused-persons. The learned counsel has vigorously contended that the last-seen evidence coupled with recovery evidence and other circumstantial and confirmatory evidence, is sufficient to connect the accused with the offence of murder. In this respect reliance was placed on various portions of the evidence of the prosecution witnesses. He maintained that the defence cannot claim any benefit on the basis that Nadeem Iqbal (P. W.14) and Muhammad Hanif (P.W.15) were given up by the prosecution. The learned counsel has pressed into service the submission that the petitioner neither presented any revision petition against the order of District Criminal Court, dated 22-6-1999 nor has challenged the order of this Court, dated 15-5-2000, therefore, the abovementioned orders have attained finality which cannot be challenged again. He has further maintained that inherent powers available to this Court under section 561-A, Cr.P.C. Cannot be exercised in the instant case because the remedy of revision before this Court and an appeal before Supreme Court was available to the accused-petitioner but he did not opt to avail the opportunity, thus, the concession of bail cannot be extended to the accused-petitioner on the basis of his detention for more than two (2) years. The learned counsel has argued with vehemence that it is a case of gruesome murder and nine (9) years old boy was thrown in a jungle after committing his murder. He has further argued that the petitioner is a hardened and dangerous criminal who is also involved in terrorism, therefore, is not entitled to the concession of bail. The learned counsel has defended the impugned judgment and submitted that the exercise of discretion by the Court below being according to admitted principles of law governing the bail matters, does not warrant any interference.
10. Mr. Muhammad Mushtaq Chaudhry, the learned Additional Advocate-General, appearing on behalf of the State, has fully owned the arguments raised by the learned counsel for the complainant and has submitted that afresh application cannot be presented when the matter has already been examined by the Court.
11. The learned counsel for the parties have cited various authorities in support of their respective contentions which have circumstances not identical with the one available in the present case, therefore, are distinguishable. These cases have no application to the facts of the present case, need no analytical survey. Even otherwise law in a particular case especially in bail matters, has small applicability to the facts of other cases. Therefore, if bail is granted in one .Criminal case it is not necessary that the same should be granted in the other case.
11-A. I have very carefully attended to the submissions made at the Bar in the light of the material available on the record. In the present case the first question which requires consideration is as to whether powers available to this Court under section 561-A, Cr.P.C. Can be invoked to grant bail at this stage when it has already been held by this Court on 15-5-2000 that the order of the Court below, dated 22-6-1999 has attained finality but the same was not challenged before this Court, therefore, no relief by way of bail can be given to the petitioner but the matter does not end here and the petitioner did not challenge the aforesaid judgment of this Court by way of appeal before Supreme Court. The relevant portion of the judgment, dated 15-5-2000 is reproduced as under:- ' "So far as the case of Muhammad Asif, accused is concerned, he moved the first bail application on 22-5-1999 on statutory ground of delay and no other ground was taken in this bail petition which was dismissed on 22-6-1999 but Muhammad Asif did not challenge the aforesaid order in revision petition which has become final to this extent. Therefore, Muhammad Asif cannot be allowed to raise the same ground in a successive bail application before the trial Court. We are aware of the fact that an order allowing or cancelling the bail 'does not amount to a judgment within the meaning of section 369, Cr.P.C. And the bail applications can be made from time to time but on fresh material only. We may observe here that Muhammad Asif has not only presented the successive bail application on the ground of delay for min-completion of trial rather he has also taken fresh grounds on the basis of which he seeks his release on bail but this fact failed to receive the attention of the trial Court as mentioned in paras. 4, 5, 6, 7 and 8 of his bail petition. The learned counsel has categorically stated - before us that his petition be disposed of on the ground of statutory delay only. As stated earlier, that the ground of statutory delay has become final in the light of order, dated 22-6-1999, thus, no relief can be given to accused-petitioner on basis of the point of delay in conclusion of the trial within the period of two years. As far as the other arguments relating to the fresh ground are concerned has not been attended to by the trial Court, therefore, it will be in the interest of justice to seek the wisdom of the trial Court first before diluting upon the merits of abovementioned grounds."
12. The perusal of the above stated order reveals that the order of District Criminal Court, dated 22- 6-1999 was held to attain finality but the petitioner did not choose to challenge the order, dated 15- 5-2000 before Supreme Court whereas it was open for the petitioner to invoke the appellate jurisdiction. It is admitted principle of law that the powers under section 561-A, Cr.P.C. Are neither alternative nor additional in its character and has to be rarely invoked only in the interest of justice so as to seek redress of grievances for which no other procedure is available and the provision should not be used to obstruct or divert the ordinary course of criminal procedure. The inherent jurisdiction could not be invoked where other remedies are available. Reference can be made to a case reported as Altaf Hussain v. Abdul Samad and 3 others 2000 SCM R 1945. The relevant portion of the judgment is reproduced below:-- ' "Mr. Muhammad Ilyas Khan, learned counsel for the petitioner was at pains to persuade us that by quashing criminal proceedings against the private respondents High Court acted against the settled norms and principles laid down by this Court for quashment of case. He relied upon Ghulam Muhammad v. Muhammad Khan PLD 1967 SC 317 expressing the view that the inherent jurisdiction given by section 561-A, Cr.P.C. Is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. This Court observed that the power given by this section can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the following procedural statute. This case has been followed in subsequent cases laying down the principles for quashment of proceedings in exercise of the powers conferred on the High Court under section 561-A, Cr.P.C. Similar view was expressed in Fazal Karim v. State PLD 1976 SC 461, Mahmood Saeed v. Amir Nawaz Khan 1996 SCM R 839 and State v. Asif Ali Zardari 1994 SCM R 798."
13. The same view was taken in a case titled Muhammad Rashid and another v. The State PLD 1981 SC (AJ&K) 110, it has been observed in that case:-- ' "It, therefore, follows that the powers conferred on the High Court under section 561-A of the Code and section 35(1) of the Azad Jammu and Kashmir Courts and Laws Code, 1949 are very wide, extraordinary in nature and know of no limitation. The High Court, however, must be careful to see that its decision is used on sound general principles of criminal jurisdiction and it is not in conflict with them. With this limitation the inherent powers of the High Court are of very wide and indefinable nature and in exercise of these powers the High Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of the Court.
But where another remedy is available the inherent jurisdiction should not normally be invoked. To the same effect is Ghulam Muhammad v. Muzammal Khan and others (supra). It has been observed in that case at page 324-- ' It is, therefore, generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. Inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interests of justice. These powers are as much controlled by principles and precedents as are its express statutory powers' ."
14. On the basis of the above noted reports, therefore; I would hold that relief of bail under section 561-A, Cr.P.C. Cannot be granted because the remedy of bail was available to the petitioner in ordinary course of Criminal Procedure. In view of the aforesaid position, I am also not persuaded to hold that the inherent powers of this Court could be pressed in service for review of bail order passed on 15-5-2000, as it has already attained finality. It is admitted principle of criminal jurisprudence that this Court may recall its own order if it suffers from inherent vice or it appears on the face of its erroneous, unjust and is without jurisdiction having regard of the material on the record. On this account, I do not want to enter into the discussion as the accused being hardened, desperate and dangerous criminal is entitled to the concession of bail or not.
15. It might be useful to mention here that the ground of delay for grant of bail in cases falling under third proviso of subsection (1) of section 497, Cr.P.C., is undoubtedly controlled by the discretion of the Court concerned. The learned counsel has failed to notice that the word "may" has been used in third proviso, stated above.
16. So far as the other grounds of the bail petition are concerned, it is alleged that the accused- petitioner is principal offender. Furthermore, the deceased child was last-seen alive in the company of the accused. The allegation against the petitioner is that he alongwith other accused- persons kidnapped the deceased for ransom. The statements of P.Ws. Recorded in the Court, the recovery of dead body and Chappal of the deceased at the pointation of the petitioner and other circumstantial and confirmatory evidence prima facie, fully implicate the accused-petitioner in commission of the alleged offence. Under the circumstances the case of petitioner is covered by the prohibitory clause of section 497(1), Cr.P.C. And he is not entitled to the concession of bail.
17. I may observe here that the point canvassed by the learned counsel for the accused-petitioner, like question of delay in F.I.R., non-mentioning of ransom in F.I.R., matter of chance witnesses, are matters which required deeper appreciation of evidence which is neither permissible nor admissible at the bail stage because at the bail stage only a bird eye view of the material of the prosecution is to be taken into consideration.
18.. It is also important to note that a new section 365-A, A.P.C. Has been inserted through (Act VIII of 1994), dated 25th January, 1994, whereby for kidnapping or abduction for extorting property or valuable security, the punishment of death penalty alongwith forfeiture of the property of the accused has been provided.
After careful consideration of all the relevant aspects of the case, I see no reason to differ with the learned Court below and the exercise of discretion seems to be neither perverse nor whimsical which is according to the rules, reasons and justice. It is, therefore, sustained and the petition is dismissed.