ORDER
SARDAR M. ASHRAF KHAN, J.---The above titled revision petition has been directed against the order of District Criminal Court, Mirpur, dated 11-9-2007 whereby, the bail application of the petitioner was disallowed by the said Court.
2. The brief facts forming the background of the instant revision petition are that a case under sections 324/334, 364/337, 336, 147/148/149, 452/109, 506-A, P.C. and 13/20/65, Arms Act was registered against accused-petitioner and co-accused at Police Station Dadyal on 20-12-2002. After registration of the case, the accused-petitioner fled away after committing the offence and remained absconded and the co-accused were apprehended by the police. After completion of the investigation the report under section 173, Cr.P.C. was submitted before the Court of competent jurisdiction. After due process of law, the trial Court acquitted the co-accused by giving them the benefit of doubt. After the period of four years the accused-petitioner was arrested by the police and the trial against him was started. During the trial of the case, he moved an application for bail before District Criminal Court, Mirpur which was disallowed by the said Court vide its order, dated 11-9-2007. Hence this revision petition for reversal of the same.
3. Abdul Waheed Durrani, the learned counsel for the accused-petitioner argued that the trial Court has committed grave illegality while recording the impugned order. The learned counsel submitted that the accused-petitioner has been involved in a false case on account of enmity and only the allegation of firing is attributed to him, which is yet to be proved. It has been contended by the learned counsel for the accused-petitioner that his client is behind the bars for the last one and half year whereas, the rest of the accused persons have been acquitted by the trial Court by giving them the benefit of the doubt. The learned counsel zealously argued that the progress in the trial is very much slow in recording the evidence for unknown reasons, as such it will take a long time to conclude the trial of the case therefore, the bail cannot be withheld as punishment. It is further argued that the trial Court has based its opinion for the refusal of the concession of bail due to abscondion of accused petitioner whereas, the process under sections 87 and 88, Cr.P.C. has not been adopted as such the accused-petitioner cannot be treated to be an absconder. It is further contented that the accused-petitioner is a resident of U.K. as such he was residing there and was unaware of the proceedings taken against him. The learned counsel contended that as the injury attributed to the accused-petitioner is concerned, the alleged injury appears to have been inflicted on the lower part of the leg which is non-vital part of the body and there appears no repetition of the firing as such keeping in view the seat of the injury it cannot be said that the accused-petitioner had the real intention to kill the victim. Therefore, the application of section 324, A.P.C. is a question which can only be resolved by the trial Court after concluding the trial. The learned counsel further contended that as the accused-petitioner is facing trial for the last one and half years and there is no progress in recording the evidence, therefore, he may be enlarged on bail because the bail cannot be refused as a punishment. The learned counsel cited the following case-law in support of his contentions:
(1) PLD 1988 (sic) 148; (2); 2004 PCr.LJ 148; (3) 2005 SCR 302; (4) 2005 SCR 109; (5) 2007 SCR 79.
4. Raja Inam Ullah Khan, the learned counsel for the complainant while controverting the arguments raised by the learned counsel for the petitioner submitted that accused-petitioner is involved in a heinous offence, therefore, the trial Court has rightly declined to allow the concession of bail. The learned counsel further contended that due to the firing of the accused-petitioner the right leg of the victim was amputated in U.K. hospital, therefore, he was not at all entitled to any concession of bail at this stage. The learned counsel contended that the accused-petitioner after committing the offence fled away and has been declared fugitive from law and proceedings under section 512, Cr.P.C. were initiated against him therefore, the conduct of the accused-petitioner also disentitles him from the concession of bail. The learned counsel defended the impugned judgment on all counts.
5. I have given my due consideration to the arguments addressed at bar and perused the relevant record with utmost care.
6. It is by now settled principle of law that at bail stage only the tentative assessment of evidence is to be made and deeper appreciation of evidence at this stage is neither required nor warranted by law, therefore, the Court has to tentatively form its opinion by assessing the evidence available on record, without going into merits of the case.
7. It has been alleged in the F.I.R. that the accused-petitioner along with acquitted accused (launched a murderous attack on 2-12-2002). The accused-petitioner who was armed with gun with the intention to kill the victim, fired on the lower part of his right leg causing multiple injuries and then disappeared from the scene of occurrence. It is further contended that the accused-petitioner was identified by the torch light and a case under sections 324, 337 etc. was registered. However, it is alleged that the accused-petitioner absconded after the occurrence.
8. No doubt the offence under section 324, A.P.C. falls within the prohibitory clause of section 497, Cr.P.C. however, in the present case the complainant has himself stated that the accused-petitioner fired at him which caused the injuries on lower part of his leg. The mere fact that the bone was fractured or some nerves were ruptured or damages in that process did not mean that the accused-petitioner's intention was to kill or that he had the knowledge that he by that act would be guilty of murder. In order to gather such intention or knowledge, the seat of injuries is of great importance. According to the record, the injury appears to be on the non-vital part of the body and moreover, the accused-petitioner did not repeat the overt act to its extreme, although the victim was at his mercy. Therefore, in view of the seat of the injury and sufficient time to repeat the firing, while the victim was at the mercy of the accused, whether section 324, A.P.C. can be invoked or not is a question, which can only be resolved by the trial Court after taking into consideration the relevant evidence brought on record. Therefore, in this view of the matter, the case appears to be of a further probe and enquiry as envisaged by subsection (2) of section 497, Cr.P.C.
9. So far as the matter of amputation of the lower part of the right leg is concerned, Doctor Anjum Shahzad, who has been appearing as witness in a connected file, stated that the complainant was initially treated by him and thereafter without his knowledge he had gone abroad for his treatment. He has categorically denied the knowledge about the details of the treatment received by the complainant. In view of the statement of Doctor, it cannot be said at this stage that either the amputation was the direct result of the act of accused or it was due to the defective and in-experienced exercise of the concerned surgeon or it was c due to negligence of the complainant for not taking care of this injury. These all matters can only to be resolved by the trial Court after recording the evidence. Therefore, the matter falls within the ambit of further probe and inquiry.
10. So far as the matter of absconsion of the accused-petitioner is concerned, it appears from the record that after the incident, the accused petitioner who has been contented to be having the dual nationality of AJ&K and U.K., went outside the country and has not been properly followed and apprehended during his stay at his village. Mere statement of Police Officer with regard to his non-availability and abscondence cannot be made basis of his absconsion unless the summons or warrants, as the case may be, were not properly served upon the accused-petitioner. A perusal of the record also shows that the process of sections 87 and 88, Cr.P.C. has also not been properly followed. The trial Court has simply issued a non-bailable warrant of arrest under section 512, Cr.P.C. on the statement of the Police Officer therefore, it cannot be said that the procedure prescribed by law has properly been followed. This view finds supports from PLD 1982 (sic) in which it is held as under:--
"The term "abscond" is not to be understood as implying necessarily that a person leaves the place in which he is. If a person, having concealed himself before process issues continues to do so after it has issued, he absconds. But where the accused-respondent had admittedly gone to Kuwait and so the service of the summons in person was not possible on him. The Court could not have lawfully proceeded under section 512, Cr.P.C. because the accused-respondent neither absconding nor he was concealing himself to avoid service."
This view further finds support from PLD 1996 Kar. 372 which is as under:--
"Abscondence of accused. Principle of refusing bail to the absconder is not applicable strictly in each and every case. Bail may not be refused on the point of abscondence if he has no knowledge about the case pending against him in any Court. Similarly if the case of an accused falls within the ambit of further inquiry then bail becomes his right notwithstanding his abscondence."
11. It has also been noticed that the accused-petitioner was arrested on 11-12-2006, the trial started on 19-2-2007 and so far after passing a considerable time of one year and four months, the statement of only two P. Ws. out of twenty-one has been recorded. Numerous opportunities were given to the prosecution by the trial Court, but the witnesses are not produced on one pretext or the other. It appears from the record that the prosecution is prolonging the case, which is resulting in delay, amounting to abuse of process of law.
12. It will not be out of place to mention here, that an accused, under law, is presumed to be innocent until his guilt is proved. Thus, a presumable innocent person is entitled to be released on bail by giving him an opportunity to defend his case and the fact that the accused-petitioner is detained in jail for one and half years and the trial is not likely to be concluded for further several months at least. Therefore, as the bail cannot be withheld as a punishment, the accused-petitioner is entitled for the concession of bail on this score too.
13. Therefore, keeping in view the above stated circumstances of the case, the revision petition is accepted by setting aside the impugned order and it is ordered that the accused-petitioner shall be released on bail forthwith on furnishing bail bonds in sum of Rs.5,00,000 (five lac) consisting of two solvent sureties and personal bond in the like amount to the satisfaction of any member of Tehsil Criminal Court, Mirpur/ Dudyal, if not required or involved in any other case or offence.
N.H.Q./12-Sh.C.(AJ&K)Bail allowed.
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