1. ' The above titled reference has arisen out of difference of opinion between the learned members of District Criminal Court, Kotli, dated 25-4-2001, whereby the learned District Qazi confirmed the interim bail of the accused/petitioners while the learned Sessions Judge declined to do so.
2. ' The necessary facts forming the background of the reference are that Muhammad Aslam, complainant lodged an F.I.R. On 24-12-2000 at Ponce Station, Kotli at 4-50 p.m. Alleging therein that he alongwith his nephew Ghulam Hussain, Riaz, Azad Irshad and Gulfraz was proceeding towards his house after buying some household from Panjara Bazar. At 1-45 p.m. When he reached at Shekas Dadal Bridge, the accused/ petitioners alongwith other 7 persons waylaid armed with Kalashnikovs and other deadly weapons. As soon as, the complainant alongwith his companions reached nearby the accused/persons amongst them Faraqat Hussain raised a Lalkara that he will take revenge of the murder of-'his brother Ahmed Hussain. Meanwhile, Faraqat Hussain, accused fired a shot with his kalashnikov, which hit on the right thigh of the complainant whereas the other accused, Liaqat also fired with his kalashnikov, which hit near his left knee. Mazhar Hussain, accused shot a fire, which hit on the right leg of his nephew, Ghulam Hussain. Muhammad Razaq, accused fired a shot with kalashnikov, which hit on right leg of Ghulam Hussain. The other accused, Gulzar alias Ghori, Azhar Siddique, Muhammad Sakhi and Muhammad Hussain have been firing shots with Kalashnikovs -and other deadly weapons. The accused/petitioners were also raising Lalkaras to do away with the lives of complainant and his companions. The occurrence was witnessed by complainant, his companions and many other persons.
3. ' The motive behind the occurrence is stated that sometime before, the sons of Khaliq, deceased while taking the revenge of his father's murder, had killed Ahmed Hussain, brother of Faraqat accused.
4. ' On this report a case under sections 324, 341, 147, 148, 149 and 337-A, A.P.C. Was registered. After usual investigation, the petitioners alongwith other accused/persons were challaned before Tehsil Criminal Court, Kotli.
5. ' The accused/petitioner alongwith Azhar Hussain, Muhammad Siddique and Muhammad Hussain (not before me) presented an application for bail before arrest. Meanwhile, Muhammad Bashir and other accused/petitioners named in F.I.R. No,364 of 2000 and Faraqat Hussain alongwith Azhar Hussain and Muhammad Hussain (not before me) also presented pre-arrest bail petitions. The Court below consolidated all the aforementioned bail petitions and disposed of by single order which culminated in difference of opinion between the learned members of District Criminal Court, Kotli vide order, dated 25-4-2001. The learned District Qazi confirmed the bail in all three bail petitions of the accused/petitioners whereas the learned Sessions Judge declined to confirm the bail of the petitioners alongwith Razaq, Azhar Hussain, Asif, Bashir, Ishfaq and Sidheer (not before me). The aforesaid order was challenged in revision petition before this Court whereby the learned Chief Justice upheld the order passed by District Qazi and maintained the bail order vide its order dated 26-4-2002. The order of the learned Chief Justice was challenged by Muhammad Aslam, complainant in F.I.R. No,365 of 2000 and Muhammad Jamil, complainant in F.I.R. No,364 of 2000 while presenting two different criminal appeals before the Supreme Court. The apex Court consolidated both the Appeals Nos.17 of 2002 and 30 of 2002 and disposed of the same by single judgment, dated 23-4-2003, setting aside the order of the learned Chief Justice, dated 26-4-2002 and remanded both the cases to this Court for its fresh decision. On this account, following the directions of the apex Court the instant reference is the subject-matter of this order.
6. ' It will be relevant to point out here that the order of the learned Chief Justice dated 26-4-2002 was challenged to the extent of Muhammad Bashir, Muhammad Ishaq and Sidheer accused/persons named in the F.I.R. No,364 of 2000 and to the extent of Faraqat Hussain and Liaquat Hussain accused/persons in F.I.R. No,365 of 2000. Therefore, the bail matter of the above-named accused/petitioners was entrusted to this Court only in the light of the order of apex Court. Meanwhile the accused/petitioners Muhammad Bashir, Muhammad Ishaq and Sidheer produced a certified copy of the judgment of Tehsil Criminal Court, Kotli passed on 24-12-2003 whereby the accused/petitioners were acquitted of the charge. In this manner, the bail petition of the aforesaid accused/petitioners has become infructuous. In this view of the matter, the instant reference has to be answered only to the extent of Faraqat Hussain and Liaquat Hussain, accused/petitioners.
7. ' Arguing on behalf of the complainant, Raja Muhammad Matloob Khan, Advocate submitted that the learned District Qazi committed an illegality while passing an order of confirmation of ad interim bail of the petitioners. The learned counsel further contended that the accused/ petitioners have been nominated in the F.I.R. And a clear role of firing shots with kalashnikovs has been ascribed to them which hit upon the left thigh and near the left knee of the complainant. The learned counsel argued that the prosecution witnesses have fully supported the prosecution version. According to him, the medical examination report and site plan also provide strong corroborative evidence in support of the prosecution tale. The learned counsel maintained that the accused/ petitioners have not taken the plea of registration of case on account of ulterior motive or mala fide, therefore, they are not entitled to the concession of bail. The learned counsel laid much stress upon the point that the version of cross-cases taken by the petitioners, does not render any help to them because the cross-case F.I.R. No,364 of 2000 has been dismissed and the accused/persons have been acquitted of the charge. The learned counsel for the complainant submitted that the extraordinary concession of pre-arrest bail may not be extended in favor of the accused/petitioners. He fully supported the order recorded by the learned Sessions Judge. In support of the arguments, reliance was placed on PLD 1982 (AJK) 73.
8. ' Sardar Zaheer Babar Chughtai, the learned P.P. Appearing on behalf of the State, has fully owned and supported the arguments advanced by the learned counsel for the complainant.
9. ' While controverting the arguments raised by the learned counsel for the complainant, the learned Advocate Rafiullah Sultani appearing for the accused/petitioners, submitted that a false case has been registered on account of past enmity and numerous criminal cases. The learned counsel argued that the learned Sessions Judge has erred while dismissing the bail petitions and he also ignored mala fide and ulterior motive on the part of the prosecution. The learned counsel pointed out that the challan against the accused/petitioners was presented on 23-8-2001 but the statement of a single P.W. Has not been recorded yet, even the complainant never appeared before the trial Court in support of his case. For the reason the petitioners also filed an application for acquittal on the ground of delay in trial because the accused/persons have been adversely prejudiced. The learned counsel further submitted that the challan has been presented, therefore, in case of cancellation of bail no useful purpose will be served. The learned counsel laid much stress upon the point that at the time of difference of opinion between both the learned members of the Court, the bail petitions of both the parties were declined by the learned Sessions Judge, therefore, the instant case also needs further probe and inquiry. The learned counsel maintained that the cross-case has not attained finality despite of acquittal of the accused/ petitioner Bashir and others because an appeal can be lodged against the impugned judgment till 24-6-2004. The learned counsel pressed into service the submission that on the same day i,e, 24-12-2002 at 1-30 p.m. An F.I.R. No,363 of 2000 was lodged against Faraqat Hussain and others at Police Post Sirsawa whereas the F.I.R. No,364 of 2000 was lodged by Muhammad Jamil against the complainant party on the same day at 2-15 p.m. At Police Post Sirsawa but the complainant also presented another F.I.R. No,365 of 2000 at 4-50 p.m. At Police Station Kotli instead Police Post Sirsawa. The learned counsel further submitted that the perusal of F.I.Rs, Nos.363 and 365 of 2000 reveals that false cases have been registered against the accused/petitioners in defence of F.1.R. No,364 of 2000 lodged by Muhammad Jamil against the complainant party but the learned Sessions Judge did not consider this important aspect of the case that reasonable grounds were not available to involve the accused/petitioners in the commission of crime. The learned counsel also argued that the case was registered on 24-12-2000 but the statements of the complainant and the alleged injured P.W. Were recorded on 25-122000, whereas the statement of P.Ws. Irshad, Gulfraz, Riaz and Azad were recorded on 27-12-2000. According to him, the delay in recording the statements of P.Ws. Makes the occurrence doubtful and these cannot be taken into consideration. The learned counsel maintained that according to the prosecution 9 accused-persons have been firing shots by Kalashnikovs and other deadly weapons but not a single empty could be recovered from the place of occurrence, therefore, the site plan does not support the prosecution version. The learned counsel argued that neither any household was taken into possession nor the statement of any shopkeeper was recorded in support of the facts narrated in the F.I.R. The learned counsel vehemently contended that according to the medical examination report, the alleged injuries were simple in nature and have not been caused on the vital part of the body. Finally the learned counsel submitted that the learned Sessions Judge failed to appreciate the version of cross-cases and ulterior motive, therefore, exercise of discretion is arbitrary and bad in law.
10. ' In support of his contention, the learned counsel relied upon the following authorities:--
(1) 1983 PCr.LJ 2379, (2) PLD 1987 Sh.C.(AJ&K) 10, (3) 1996 PCr.LJ 130, (4) 2001 YLR 2585, (5) 2001 PCr.LJ (Karachi) 1459 and (6) 2003 YLR 786.
11. ' I have given my dispassionate thought to the arguments addressed at Bar and perused the record alongwith case-law cited. It will be relevant to note here that extraordinary jurisdiction of anticipatory bail is purely concession of law which can be granted only in appropriate cases but the balance has to be kept and each case has to be dealt with on its own merits. It should also be noted that mere mentioning of the name of person in F.I.R. Would not justify rejection of his prayer for bail before arrest without considering the necessary and relevant conditions. In a famous case reported as Murad Khan v. Fazl-e-Subhan PLD 1983 SC 82, main conditions for grant of anticipatory bail have been laid down. One of the main consideration for grant of bail is whether the accused have .Been implicated on account of ulterior motive particularly on the part of the police and there should be apprehension of harassm ent and undue irreparable humiliation by means of unjustified arrest. Murad Khan's case was followed by the apex Court of AJ&K in a case titled Khurshid Ahmad v. Muhammad Ilyas and others 1994 SCR 136 in the following manner:-- "We may also take note of the contention that, in any case, the pre-arrest bail should not have been granted to the accused respondents because the .Principles of law which govern the grant of anticipatory bail are vastly different from the principles applicable to after arrest bail. He referred to Murad Khan v. Fazal-e-Subhan PLD 1983 SC 82. We have dealt with this point with some detail in Basharat Khan v. Sher Muhammad Khan (Criminal Appeal No,7 of 1992) and have expressed the view that these principles are not inflexible and can be departed from in accordance with the facts of each case by keeping in view the gravity of the offence and other factors. We again want to emphasize that grant of pre-arrest bail should not be treated as a routine matter but having regard to the facts of the case we do not feel persuaded to cancel the bails on the mere ground that it is an anticipatory bail."
12. ' The same view was affirmed in Muhammad Youns's case 1997 SCR 125.
13. ' It was also opined in Fazal Dad's case PLD 1987 Sh.C. (AJ&K) 10 as under:-- "It is unnecessary that all the grounds listed above must primarily exist in each case for bail pre- arrest. If all or any one of those grounds are available, alongwith the state of facts of case under consideration helping the defence in grant of concession of bail pre-arrest, Court should not hesitate to grant the concession of bail pre-arrest."
14. ' The above survey of case-law shows that while considering the question of bail before arrest the necessary conditions stated above alongwith the peculiar facts and surrounding circumstances of each case have to be taken into consideration and restriction in matter of pre-arrest bail should not be rigidly adhered to in each and every case.
15. ' Coming to instant case, a long chain of enmity of murder and criminal litigations is admitted between the parties. On 24-12-2000, the day of occurrence three F.I.Rs, Nos.363 of 2000, 364 of 2000 and 365 of 2000 were lodged at Police Post Sirsawa and Police Station Kotli. The F.I.R. No,363 of 2000 was presented by Muhammad Sajid at Police Post Sirsawa on 24-12-2000 at 1-30 p.m. Against Faraqat Hussain and others wherein the time of occurrence has been shown 12-30 p.m., whereas F.I.R. No,364 of 2000 was lodged by Muhammad Jamil against Asif and others (the complainant party in the instant case) on 24-12-2000 at 2-15 p.m. At Police Post Sirsawa while F.I.R. No,365 of 2000 dealing with the present case was lodged by Muhammad Aslam against Faraqat and others on 24-12-2000 at 4-50 p.m. At Police Station Kotli. Thus, the perusal of the above-mentioned reports shows that three occurrences took place on the same day 1st at 12-30 p.m. Second at 1-45 p.m. And third at 2-15 p.m. Therefore, it is yet to be ascertained that who was aggressor and who was aggressed upon in the instant case. It is admitted principle of criminal law that in such-like counter-cases and counter-versions, the Court should be liberal to allow bail even in the cases of heinous offences. Furthermore, Azhar Hussain, Muhammad Siddique and Muhammad Hussain other accused/persons in the instant case have been enlarged on bail and now the accused/petitioners are at liberty. It is also on the record that according to the F.I.R. 9 accused/persons have been firing shots with kalashnikovs and deadly weapons but neither a single empty has been recovered from the place of occurrence nor these have been shown in the site plan. The alleged injuries on the person of the injured complainant have been described simple. The challan has also been presented since 23-8-2001 but even the statement of the complainant has not been recorded. It is also on the record that the statements of the complainant and the P.W.2 were recorded after delay of 24 hours whereas the statements of P.Ws.
16. 4, 5, 6 and 7 were recorded after 3 days of the occurrence. Keeping in view all the above- mentioned facts and circumstances, it will not be proper to refuse bail to the accused/petitioners for the sake of recovery to be made from the accused/petitioners. My this view stands fortified by a case reported as Abdul Qayyum v. Adalat and 3 others 2004 YLR 786.
17. ' It will be relevant to observe that the view expressed in the instant bail petitions is purely for the purpose of bail and if any opinion is recorded with regard to the evidence on record or other incriminating material shall not prejudice the case of either party.
18. ' I am not inclined to discuss in detail the case -la referred to by the learned counsel for the complainant because of distinguishable facts, whereby the accused have absented himself on the date fixed for cancellation of the application for consideration of bail.
19. ' The cursory perusal of the record and tentative assessment of material collected by the investigating agency coupled with the plea of defence reveals that reasonable grounds do not exist to connect the accused/petitioners with the crime and it is a case of further probe and inquiry, therefore, the view taken by the learned District Qazi appears to be based on strong and cogent reasons which is maintained whereas the learned Sessions Judge has ignored the fundamental principles governing the bail matters and exercise of discretion seems to be arbitrary and fanciful.
20. ' Resultantly, the bail order is maintained. The reference is answered in the manner indicated above.