MOHAMMAD SIDDIQUE Versus MOHAMMAD SALEEM KHAN
ORDER
RAJA SAJJAD AHMAD KHAN, J.--- Above titled revision petition has been directed against the order passed by District Court of Criminal Jurisdiction, Sudhnoti/Pallandri on 29.09.2018, whereby accused-respondents Nos. 1 to 10 have been granted pre-arrest bail.
2. Brief facts forming back-ground of the instant revision petition are that a case in offence under sections 354, 452, 337-AF, 427, 147, 148, 149, A.P.C. bearing FIR No. 46/2018 has been registered against the accused respondents at Police Station Trarkhal, on the complaint of Mohammad Siddique. It was alleged in the FIR that today on 08.09.2018 at about 9.30 p.m. complainant along with his wife and daughters was present in the rooms of their house when accused Nos.1 to 12 armed with hatchets and sticks having common intention entered in the room of house and started beating him. The accused inflicted hatchet injury at left hand his daughter Mst. Safina while Khalil caused injuries to her other parts of the body. Jamshaid and Majeed caused injuries to Aneesa Siddique with sticks. Imran and Soban inflicted sticks injuries at arms and other parts of the body of Mst.Akhol Jan. Mohammad Saleem and Faisal accused beat him with kicks and fists by catching hold him and caused injuries at his foot. Khurram and Bilal started dragging Safina Siddique while Kamran and Khurshid started dragging Mst. Aneesa Siddique. On hue and cry complainant and his daughters, Tahir Siddique, Saira Siddique, Nusrat Siddique and Nazish Siddique intervened and rescued them and witnessed the occurrence. The accused also damaged Tin sheets of house by pelting stones.
3. After registration of the case, the accused respondents applied for pre-arrest bail before District Court of Criminal Jurisdiction, Sudhnoti-Pallandri, which was allowed and confirmed vide impugned order dated 29.09.2018, hence this revision petition.
4. Raja Ejaz Ahmad Khan, the learned Advocate for petitioner-complainant and learned Additional Advocate General for State, reiterated the grounds already made in the petition and submitted that trial court has committed grave error while allowing bail to the accused respondents because their role of committing offences is fully established and falls under the Prohibitory Clause of section 497, Cr.P.C. Medico-legal reports also annexed with challan which supports the prosecution version. They further argued that accused respondents are involved in heinous offences, but the learned trial Court released them on bail by ignoring the settled principle of law governing bail matters, therefore, concession of bail may be cancelled.
5. Previously on 08.05.2019 arguments were heard but after perusal of record fresh notices were issued to parties and their counsel for arguments and case was fixed for 16.05.2019 but due to non-availability of learned counsel for the accused respondents, arguments could not be heard on 16.05.2018 and again case was fixed for 17.05.2019. On 17.05.2019 Messrs Zahid Rafique and Sardar Saeed Shaft, Advocates filed power of attorney on behalf of accused respondents and sought adjournment which was allowed and case was posted for today but they did not appear before the Court today and I have considered the arguments already advanced on behalf of accused respondents.
6. Tanveer Ahmad Qureshi, the learned counsel for the respondent submitted than respondents have been falsely implicated in the case with mala fide intention on account of civil litigation over property. He further submitted that occurrence took place during dark hours of the night and 12 accused were nominated in the FIR, in which their roles cannot be ascertained, so their roles will be determined at the time of conclusion of the trial, at this time they were alleged for committing bailable offences and at bail stage deeper appreciation is not permissible, only tentative assessment of record is required, therefore, prima facie case against them requires further probe. After completion of investigation challan has been submitted meaning thereby that they are not required for further investigation. The Court below did not commit any error while allowing bail to the accused respondents which needs no interference by this Court. He defended the impugned order on all counts and prayed for dismissal of the revision petition.
7. I have heard the learned counsel for the petitioner in as well as learned A.A.G and gone through the record of the case.
8. It would be worthwhile to mention here that pre-arrest bail cannot be granted unless an accused succeeds in showing that the prosecution has been launched against him by the complainant with mala fide intention and that the Police have to arrest him with ulterior motive of harassing and humiliating him. It is well settled that pre-arrest bail is granted only in those matters where it would appear that the registration of such cases was based on enmity, mala fide or where no offence was shown to have been committed on the very face of record.
9. In the present case the allegation against the accused respondents was that on the day of occurrence at 9.30,p.m they entered into house of the complainant, not only injured the women but also dragged and tore their clothes. The allegation against the accused respondents Nos.2, 6, 7 and 10 was supported from medico-legal reports pertaining to the victims and statements of witnesses recorded under section 161, Cr.P.C., thus prima facie they were involved in the non-bailable offences. The Court below while allowing pre-arrest bail to them failed to appreciate the material on record and committed grave error by observing that the accused respondents were alleged for committing bailable offences and overlooked the medico-legal reports and other evidence. It is settled law that bail before arrest is an extraordinary concession which can only be granted to an innocent person but in the case in hand prima facie reasonable grounds exists to connect the above accused respondents with the alleged offences and no mala fide intention has been shown against the complainant that he has falsely implicated the respondents. Moreover, weapons used in the occurrence are yet to be recovered. So, learned Court below has passed the impugned order by ignoring the settled principles of law governing bail matters and it can safely be concluded that impugned order is perverse, unreasonable, arbitrary and capricious which is not sustainable to the extent of above mentioned accused-respondents.
10. Therefore, the revision petition is accepted and pre-arrest bail granted to accused respondents Nos. 2, 6, 7 and 10 vide order dated 29.09.2018 by learned District Criminal Court, Sudnoti/Pallandri is hereby recalled. The revision petition is dismissed to the extent of other respondents as learned Court below has rightly granted bail to them.
Before parting with the order, it may be observed that any observation in this order, being purely tentative in nature, shall in no way prejudice the proceedings before the learned trial Court where the case be decided strictly on its own merits.
SA/10/Sh.C. (AJ&K) Order accordingly.