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Criminal Appeal No. 2 of 1986, decided on 5th April, 1986.

---‑‑S. 497(2)‑‑Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S. 32(2)‑‑Penal Code (XLV of 1860), Ss. 302, 307 & 34‑‑Bail‑‑Further inquiry‑‑When Court is satisfied that an offence ascribed to an accused necessitated further inquiry it has no option but to release accused on bail.

--‑‑S. 497‑‑Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S. 32(2)‑‑Penal Code (XLV of 1860), Ss. 302, 307 & 34‑‑Bail‑‑Prosecution even by presenting counter‑challan unable to arrive at a conclusion as to who was at fault and even after recording testimony of two eye‑witnesses it was yet to be discovered as to whether action of accused was justified or not‑‑Looking to counter‑version and attending circumstances, accused entitled to exception provided under section 497(2), Criminal Procedure Code‑‑Bail allowed.

Shahid Ahmed Rathore for Appellant.

M. Nisar Mirza, Addl. A.‑G. for the State.

Date of Institution: 27th January, 1986.

This appeal is preferred against the order of the District Criminal Court, Kotli, passed on January 6, 1986, whereby prayer for release on bail to accused‑appellant, on the charge of offence under sections 5, 15, Islamic Penal Laws Act read with sections 302, 307 and 34, A.P.C. was declined.

2. The incident took place at 2 a.m. on October 3, 1985 in the courtyard of Bostan, accused. Muhammad Ramzan was killed by fire‑arm, whereas Purvez, his associate, received 11 injuries with blunt weapon. Two First Information Reports were made, one by Purvez Khan and the other by Bostan, accused. In both the reports, parties levelled accusation against each other. According to the F.I.R. made by Purvez Khan, he acquired acquaintance with the deceased in Rawalpindi jail where he was imprisoned under the provisions of Motor Vehicles Act. In prison. Muhammad Ramzan acquainted him with the sad story of separation of his wife who, according to the deceased, was under the influence of Bostan and others and was living separate from him. Purvez Khan promised Muhammad Ramzan deceased to help him on release from the jail. On their release from the jail, they came to Bostan in village Tarala, Police Station Sehnsa, to persuade him to send Mst. Manzoor Begum alongwith Muhammad Ramzan. He promised to do so and told them to come after few days. Muhammad Ramzan who lived in those days with Purvez Khan in Rawalpindi apprised him that he was called by Bostan for settlement of the dispute. They boarded a bus in the evening and reached their destination at .12 at night. There was a meeting with Bostan and his neighbours but during discussion Bostan and deceased exchanged hot words which resulted in open fight. Muhammad Hussain and Muhammad Ajaib. relatives of Bostan armed with sticks, attacked Purvez Khan and Muhammad Ramzan, whereas Bostan fired with .12 bore gun on the chest of Muhammad Ramzan who died instantaneously. Purvez Khan kept lying in injured state in the courtyard where the occurrence took place when in the morning police arrived at the scene to whom he made report. Bostan, on the other hand, gave a different story. Briefly, according to Bostan, Muhammad Ramzan and Purvez Khan appeared at zero hour of the night in his premises. They were armed with revolver, hand‑grenade and dagger. A window‑pane of his house was opened. Muhammad Ramzan opened fire with revolver on him which hit interior part of the house wall. The accused who possessed .12 bore gun, in his defence, counter‑fired which hit Muhammad Ramzan. Purvez Khan, an associate of Muhammad Ramzan who was also armed with deadly weapons, tried to run away but on account of firing, the immediate neighbours were attracted and arrived at the scene and overpowered Purvez Khan, from whose custody hand‑grenade and dagger were recovered by the police. It was further stated that the accused was alert due to activities of Hathora Group which murdered various persons in Pakistan and also attacked the inmates of a house in Muzaffarabad city by causing their death, in those days. The lower Court allowed bail to Muhammad Ajaib and Muhammad Hussain as they were not ascribed fatal injuries of Muhammad Ramzan but the plea of bail was refused to Bostan.

3. Mr. Shahid Ahmed Rathore, the learned counsel for the accused‑appellant, has invited my attention to counter‑report containing two versions which were even accepted by the police as the Investigating Officer believed both the versions as correct and submitted separate challans in the trial Court. In murder case, Bostan and his associates are facing trial on the charge of murder and attempt to murder, including causing of injuries, under sections 5 and 15, Islamic Penal Laws Act read with sections 302. 307 and 34, A.P.C. In counter‑challan, Purvez Khan is facing trial on the charge of attempt to murder and lurking house trespass, under sections 307 and 458. A.P.C. In addition to section 19 of the Arms Act, for keeping in possession arms without licence. Mr. M. Nisar Mirza, the learned Additional Advocate‑General in presence of the aforesaid position of the case, has to accept that the Investigating Officer whether lightly or not submitted both the challans, holding both versions as correct. It is also un-denied that the District Criminal Court has equally taken cognizance in the case and is proceeding in the murder case, as evidence of two eye‑witnesses has already been record. In counter‑case, the trial is at the stage of examination of accused under section 242. Cr.P.C.

4. It is an acknowledged rule of bail that when Court is satisfied that an offence ascribed to an accused necessitates further inquiry, it has no option but to release the accused on bail. This provision of law finds place in section 497(2), Cr.P.C. In the present case, even the prosecution by presenting counter challans, was unable to arrive at a conclusion as to who was more at fault. At this stage, even after recording the testimony of two eye‑witnesses, it is yet to be discovered as to whether action of the accused was justified or not, particularly when the incident took place in his premises at 2 a.m. in the month of October. In presence of counter‑version and attending circumstances listed earlier, without going into deep merits of the case, suffice it to say that the accused‑appellant is entitled to the exception provided under section 497(2), Cr.P.C. He cannot be declined bail. It appears that the trial Court failed to appreciate this aspect of the case and declined bail to the appellant only in consideration of attribution of fatal injuries by a fire‑arm.

5. Bostan, accused‑appellant, shall be released on bail provided he furnishes bail bond in the sum of Rs.2,00,000 (Rupees two lac) with two sureties, with his personal bond in the like amount, to the satisfaction of A.D.M. Kotli.

M.Y.H. Bail allowed.

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