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Criminal Miscellaneous No. 3 of 1980, decided on 17th January 1980.

Criminal Procedure Code ( V of 1898 )‑---

---S.497-Bail‑Firing of revolver shot attributed to accused (though missing same)‑Seized crime empty, according to Ballistic Expert, not fired from crime revolver‑Bail allowed to accused in circumstances o; case‑Penal Code (XLV of 1860), S. 302 read with And Jammu & Kashmir Islamic Penal Laws (Application) Act, 1974, S 5.

Ch. Muhammad Taj for Applicant.

Raja Muhammad Akram Khan A; G. for the State.

This bail application by Fazal Ahmed applicant; one of the co‑accused, has arisen out of a case under section 302, A. P. C. ‑read with section 5 of the Islamic Penal Laws Act of 1974 and section 302/109 of the P. C. The learned counsel for the applicant and the Advocate‑General were heard.

Allegedly, two of the accused, namely, Khadim Hussain and Nazim are the principal offenders who stt4nd charged under section 302 read with section 5 of the Islamic Penal Laws Act of 1974 whereas others five in number stand charged by the police under section 302 read with section 109, P. C.

Initially. the case was iegistere4 under section 302 of the P. C. and section 5 of the Islamic Penal Laws Act read with section 1481149 of elm P. C. According to the ,police, offences under section 148/149. Penal Code, were not proved and none of the accused was held liable for offences under section 148/149 by the police.

Fazal Ahmed, applicant including some others stands charged for the offence of abetment under section 109 of the P. C. The principal offenders who are also the clients of the learned counsel for tie applicant, have pot moved any applications for their bail. It was on behalf of some of the accused implicated in the offence of abetment that bail application was moved in the Court below. Three of the accused have been bailed out by the trial Court but bail to the applicant was refused by it.

It was a simple matter for determination. Ai little bit of effort on the part of the trial Court in applying its mind to the disposal of the matter in respect of the applicant would have also resulted in the discretion to be used in favour of the applicant.

It was alleged that a shot of revolver was fired at Muhammad Ghos deceased while fallen by the applicant, though it was missed. The crime ,empty was seized by the Police, they say. According to the Ballistic ,Expert, it was not fired from the revolver, seized by the police from the possession of Fazal Ahmed applicant. In this view of the matter, it was proper for the trial Court to exercise its discretion in favour of the applicant in respect of grant of bail to him. It could, of course, be done so without expressing any opinion on the merits of the case. Merits of the case are to be determined at a proper stage, yet to come that is to say that after taking the evidence in the case or after close of the case, as the case may be. Therefore, in exercise of the discretion vested in the High Court, I am well inclined to admit the applicant to bail subject to his furnishing bail bond in the amount of Rs.20,000 with personal bond in the like amount to the satisfaction of any Magistrate 1st Class, Mirpur. This application thus stands accepted in a way indicated above.

Bail granted.

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