' Legality and correctness of an order passed by District Court of Criminal Jurisdiction, Mirpur, dated 30th July, 2001 has been challenged through the above captioned revision petition whereby the accused-respondent was enlarged on bail.
2. The facts precisely stated are that on 26-5-2001, the petitioner-complainant deposed before City Police Station Mirpur that at daytime when he was proceeding towards the hostel, an altercation took place between the petitioner-complainant and the accused-respondent alongwith Asif and Raja Shehzad but the matter ended. As soon as he went to the room of the accused-respondent enquiring about the day's altercation the accused-respondent shot a fire of pistol which hit on the backside of his right thigh. The occurrence was witnessed by Mallick Farhan, Mallick Yasir and Sheikh Arshad.
3. The motive behind the occurrence has been stated to be rivalry of two student groups. The complainant-petitioner belongs to P.S.F. Whereas the accused-respondent belongs to Jamiat.
4. On this report, a case under section 324, A.P.C. Was registered and later on an offence under section 337-F was also added.
5. The accused-petitioner filed an application for pre-arrest bail before District Criminal Court, Mirpur on 14-6-2001 which was dismissed vide its order, dated 18-7-2001. Consequently, the accused-respondent was apprehended. He moved a bail application before Additional Tehsil Court of Criminal Jurisdiction, Mirpur on 20th July, 2001 which was also dismissed vide its order, dated 24th July, 2001. Feeling aggrieved, the accused-respondent presented another bail application before District Criminal Court, Mirpur on 25-7-2001 which was allowed vide its order, dated 30th July, 2001. Hence, the revision petition.
6. Mr. Ghulam Mustafa Mughal, the learned counsel for the petitioner-complainant, strenuously argued that in the light of material collected by the Investigating Agency and the statements of the prosecution witnesses recorded under section 161, Cr.P.C. The prosecution has put forward a strong case but the Court below failed to appreciate the heinousness of the offence and granted bail to the accused-respondent in a routine matter. The learned counsel also submitted that the Court below has dived deep into the merits of the case which is not permissible at the bail stage thus the parties have been prejudiced by the impugned findings. The learned counsel pointed out that the order of Tehsil Court of Criminal Jurisdiction, Mirpur was not a legal order, therefore, it was incumbent upon the Court below to remand the case for rehearing and afresh order. The learned counsel laid much stress on the point that the accused-respondent absconded soon after the occurrence and did not surrender himself before police or Court for 19 days, therefore, he is fugitive from law and not entitled to the concession of bail. The learned counsel further maintained that a fire-arm was used in the occurrence which took place in the hostel of University. The eyewitnesses were also nominated in the F.I.R. But the trial Court failed to consider this aspect of the case and exercised its discretion in any arbitrary and fanciful manner. The learned counsel pressed into service the submission that the Court below fell in error while holding that the accused-respondent was not entitled to the grant of bail for the simple reason that his case does not come in the purview of the prohibitory clause of section 497, Cr.P.C. The learned counsel, vehemently contended that an exercise of discretion by the Court below is whimsical and fanciful, therefore, the impugned order cannot be sustained.. In support of his contention, the learned counsel relied upon the following authorities:--
(1) 1994 SCR 212; (2) 1998 PCr.LJ 149; (3) An unreported judgment of this Court titled Muhammad Ashraf v. Muhammad Saghir Khan and another Criminal Revision Petition No,39 of 2001, dated 19- 12-2001.
7. Syed Ejaz Ali Gilani, the learned Assistant Advocate-General appearing on behalf of the State has fully owned and supported the arguments advanced by the learned counsel for the petitioner- complainant.
8. Controverting the arguments raised by the learned counsel for the petitioner, Mr. Atta Ilahi Abbasi, the learned counsel for the accused-respondent has submitted that the impugned order is very well-reasoned thus does not warrant any interference by this Court. The learned counsel also argued that the F.I.R. Was recorded after the delay of one and a half hours without any plausible explanation whereas the police station is situated at a distance of two kilometers from the place of occurrence. The learned counsel further maintained that according to the prosecution story, the complainant, alongwith Mallick Farhan, Mallick Yasir and Sheikh Arshad entered into the room of the accused-respondent, therefore, the complainant party is aggressor and the accused- respondent was aggressed upon and in the light of the peculiar facts and circumstances of the case, it is yet to be determined as to why the complainant party went into the room of the accused-respondent. The learned counsel pointed out that according to the complainant, the bullet hit upon the back of his thigh whereas according to medical report the bullet hit on his hip, therefore, the medical report negates the ocular version. The learned counsel further argued that the challan has been presented and the trial is in progress. The trial Court has also summoned the prosecution witnesses and if the complainant would not have instituted the revision petition, the trial Court would have certainly recorded the evidence of eye-witnesses. The learned counsel also contended that the accused-respondent has surrendered himself before the Court, therefore, he could not be declared as an absconder and the concession of bail cannot be recalled on this ground. The learned counsel pressed into service the submission that the accused-respondent has not misused the concession of bail, therefore, the bail cannot be cancelled under section 497(5), Cr.P.C. The learned counsel defended the impugned order on all counts. He has cited the following case-law in support of his contention:-- ' (1) PLD 1987 SC (AJ&K) 36, (2) PLD 1988 SC (AJ&K) 48, (3) 1988 PCr.LJ 1088, (4) 1990 PCr.LJ 142, (5)
1991 PCr.LJ 1856 (Sh.C. AJ&K), (6) 1992 SCR 379, (7) 1993 PCr.LJ (Sh.C.) 933, (8) 1996 PCr.LJ 745, (9)
1994 PCr.LJ 2335, (10) An unreported judgment of this Court titled Muhammad Rashid v. Zahid Hussain and another Criminal Revision Petition No,86 of 2001, dated 9-3-2001.
9. In the light of the arguments addressed at the Bar, I have carefully examined the record and the case-law cited. At the very outset it will be appropriate to observe that law of bail has been envisaged under sections 496, 497 and 498, Cr.P.C. In case of non-bailable offences, an accused- person cannot claim bail as a right but when it appears that reasonable grounds are not available for believing that the accused has committed a non-bailable offence and there are sufficient grounds for further probe into his guilt, the accused can be enlarged on bail. However, in cases, not falling within prohibitory clause of section 497, Cr.P.C. Grant of bail is a rule and its refusal is only exception. It is also an admitted principle of law that for purpose of bail, law cannot be A stretched in favour of prosecution and if-any benefit of doubt arises, it must got to the accused because the bail is not to be withheld as punishment (2002 SCM R 282). As stated above, granting or refusal of bail in non-bailable cases is a matter which falls within the discretion of the Court but such discretion has to be exercised with due care and caution keeping in view the peculiar facts and circumstances of each case.
10. It has been alleged by the prosecution that the occurrence took place in the room of the accused-respondent when the complainant, alongwith his three companions entered into his room for enquiring about the altercation which took place at day time. In these circumstances, it is yet to be determined as to whether the accused-respondent launched an attack upon the petitioner-complainant or an attack was launched upon him by the complainant party. According to the prosecution case, the injury attributed to the accused-respondent was not on vital part of the body of the victim thus it is also yet to be seen whether his case would fall under section 324 or under section 337, A.P.C. From the mere fact that the pistol shot was fired, it cannot be said that the inference which follows is that the intention was to kill. Such a shot can be fired in fit of temper, it can also be used in the same way for causing merely hurt, it may even be used in self-defence without any intention to kill and so on. In such-like cases, the allegation of commission of non- bailable offence cannot disentitle an accused from grant of bail if the alleged offence though, non- bailable is yet not punishable with death or life imprisonment.
11. It will not be out of place to mention here that the challan has also been presented before the trial Court and the trial is in progress. The prosecution has also not levelled any allegation of misuse of concession of bail against the accused, therefore, the cancellation of bail will not serve any fruitful purpose.
12. It might be useful to note here that where the bail is granted by a Court of competent jurisdiction, the strong and exceptional grounds are required for its cancellation. The impugned order is well-reasoned and carefully balanced which fulfills the requirements of the relevant law. In this view of the matter, the exercise of discretion by the Court below does not seem to be arbitrary or improper.
13. I find little force in the plea of the learned counsel for the petitioner-complainant that the accused-respondent surrendered himself before the Court after 19 days of the occurrence, therefore, he is an absconder and the concession of bail cannot be extended in his favour. There is nothing on the record to show that the accused-respondent was declared an absconder and proceedings under section 512, Cr.P.C. Or under sections 87 and 88, Cr.P.C. Were taken against him.
In this view of the matter, prima facie, at this stage of proceedings it cannot be said that the accused-respondent had absconded merely because he was not readily available to the police 1989 SCM R 1987.
14. So far as the argument of the learned counsel, for remand of the case is concerned, is misconceived and without substance. It was not binding upon the Court below to remand the case to Additional Tehsil Court of Criminal Jurisdiction, Mirpur because the bail petition was pending before it and the Court below was quite competent to dispose it off. On this account, the District Criminal Court has, not committed any illegality while deciding the bail matter.
15. It is also important to observe that the trial Court has not embarked upon the deep merits of the prosecution case rather, it has taken a cursory view of the material collected by the Investigating Agency. In this view of the matter, the expression of opinion in the impugned order has not prejudiced the case of either party.
16. In the instant case, the revision petition has been presented for the cancellation of bail. It is always an arbitrariness or perversity of the discretion, which calls for indulgence by this Court. As stated above, the exercise of discretion by the Court below implies the absence of arbitrary determination, capricious representation or whimsical thinking.
17. 1 have carefully examined the authorities referred to by the learned counsel for the parties.
Needless to add that, in the bail matters, an authority of one case is hardly helpful to another case because each case has its own peculiar circumstances. Therefore, I am not inclined to discuss the case-law in detail.
The upshot is that no ground for interference in the order passed by the District Court of Criminal Jurisdiction, Mirpur has been made out. Hence the petition must fail and it is hereby dismissed.