High Court

4. FIR of the present case was lodged on 9.11.2022 against four named persons (non applicant) and unknown persons and according to the FIR, on 21.10.2022 brother of the informant had gone along with one girl of the village and on 8.11.2022 her brothers, i.e., nominated accused persons after locking his son in the room before his brother Yameen, badly beaten him and committed his murder. It is further mentioned in the FIR that on

9.11.2022 in the morning dead body of the son of the informant was recovered.

5. Learned counsel for the applicant submits that applicant was not named in the FIR but during investigation through the statement of co-accused Musraleen alias Kala, he has been made accused in the present matter.

6. He further submits that however, as per the FIR, brother of the deceased, namely, Yameen was the eye witness but during investigation under the pretext that it is a case of honour killing he has also been made accused in the present matter and, however, he also stated against the applicant but as his statement was recorded during investigation as accused, therefore, his statement is not admissible.

7. He further submits that except the statement of co-accused and the confessional statement of applicant, there is no other evidence against him on record.

8. He further submits that along with the applicant during investigation Aas Mohammad, one of the relative of the nominated accused persons, has also been made accused in the present matter and his bail application has been allowed by Coordinate Bench of this Court vide order dated 7.2.2025 passed in Criminal Misc.Bail Application No. 43583 of 2024 and on facts, case of applicant is almost at par with him except the fact that applicant is the real brother of the girl, who allegedly had gone along with the deceased.

9. He further submits that in the present matter applicant is in jail since 28.11.2022, i.e., for the last more than two years and trial of the case till date could not be concluded.

10. It is further submitted that it is an unfortunate case in which even sister of the applicant, namely, Mahjabi has also been murdered and in that case also applicant was made accused on the ground that he committed her murder as he was her brother but in that case applicant has already been released on bail by Coordinate Bench of this Court and his bail order has been annexed at page 47 of the paper book.

11. He further submits that however, as per prosecution it is a case of honour killing but as there is no cogent evidence against the applicant on record and applicant is in jail since November, 2022, i.e., for the last more than two years and similarly placed co- accused has already been released on bail by this Court, therefore, he should also be released on bail.

12. Per contra, learned AGA as well as learned counsel for the informant vehemently opposed the prayer for bail and submitted that it is a case of honor killing and applicant not only committed the murder of the son of the informant but also committed the murder of his real sister.

13. They however could not dispute the fact that except the statement of co-accused and confessional statement of applicant, there is no other evidence against him on record.

14. They further could not dispute the fact that in the case of murder of his sister applicant has already been released on bail and co-accused Aas Mohammad, who was also made accused in the present matter during investigation has already been released on bail by Coordinate Bench of this Court and the case of applicant as far as evidence is concerned is on identical footing than him except the fact that applicant is the real brother of the girl, namely, Mahjabi and co-accused Aas Mohammad was her relative.

15. They further could not dispute the fact that in the present matter applicant is in jail for the last more than two years.

16. I have heard learned counsel for the parties and perused the record of the case.

17. However, it appears to be a case of honour killing but as far as evidence against the applicant is concerned it appears that except the statement of co-accused and confessional statement of applicant, there is no other cogent evidence against him on record.

18. Further, during investigation applicant has been made accused in the present matter along with co-accused Aas Mohammad and co-accused Aas Mohammad has been released on bail by Coordinate Bench of this Court and the case of applicant is almost at par with him except the fact that applicant is the real brother of the girl, namely, Mahjabi and co-accused Aas Mohahhad was her relative.

19. The Apex Court in the case of Satender Kumar Antil Vs. CBI & another (2022) 10 SCC 51 in paragraph no. 98 has observed that:- "Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation. Persons accused with same offence shall never be treated differently either by the same court or by the same or different courts. Such an action though by an exercise of discretion despite being a judicial one would be a grave affront to Articles 14 and 15 of the Constitution of India."

20. Therefore, considering the facts of the case and the observations made by the Apex Court in the case of Satender Kumar Antil (supra) applicant should be released on bail on the ground of parity itself.

21. Further, applicant is in jail in the present matter since

28.11.2022, i.e., for the last more than two years and till date trial of the case could not be concluded.

22. Further, however, it reflects that apart from the present case applicant is also having criminal history of one another case and that case also relates to Section 302 IPC but both these cases are connected with each other and in that case applicant was made accused with the allegation that he along with others committed the murder of his sister, namely, Mahjabi but in that case applicant has already been released on bail by another Coordinate Bench of this Court.

23. Further, law is settled that unless proven guilty an accused is deemed to be innocent and bail application of an accused should not be dismissed for punitive purpose.

24. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

25. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

26. Let the applicant-Muntizir be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity.

27. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

28. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 10.3.2025 SKM

4. FIR of the present case was lodged on 9.11.2022 against four named persons (non applicant) and unknown persons and according to the FIR, on 21.10.2022 brother of the informant had gone along with one girl of the village and on 8.11.2022 her brothers, i.e., nominated accused persons after locking his son in the room before his brother Yameen, badly beaten him and committed his murder. It is further mentioned in the FIR that on

9.11.2022 in the morning dead body of the son of the informant was recovered.

5. Learned counsel for the applicant submits that applicant was not named in the FIR but during investigation through the statement of co-accused Musraleen alias Kala, he has been made accused in the present matter.

6. He further submits that however, as per the FIR, brother of the deceased, namely, Yameen was the eye witness but during investigation under the pretext that it is a case of honour killing he has also been made accused in the present matter and, however, he also stated against the applicant but as his statement was recorded during investigation as accused, therefore, his statement is not admissible.

7. He further submits that except the statement of co-accused and the confessional statement of applicant, there is no other evidence against him on record.

8. He further submits that along with the applicant during investigation Aas Mohammad, one of the relative of the nominated accused persons, has also been made accused in the present matter and his bail application has been allowed by Coordinate Bench of this Court vide order dated 7.2.2025 passed in Criminal Misc.Bail Application No. 43583 of 2024 and on facts, case of applicant is almost at par with him except the fact that applicant is the real brother of the girl, who allegedly had gone along with the deceased.

9. He further submits that in the present matter applicant is in jail since 28.11.2022, i.e., for the last more than two years and trial of the case till date could not be concluded.

10. It is further submitted that it is an unfortunate case in which even sister of the applicant, namely, Mahjabi has also been murdered and in that case also applicant was made accused on the ground that he committed her murder as he was her brother but in that case applicant has already been released on bail by Coordinate Bench of this Court and his bail order has been annexed at page 47 of the paper book.

11. He further submits that however, as per prosecution it is a case of honour killing but as there is no cogent evidence against the applicant on record and applicant is in jail since November, 2022, i.e., for the last more than two years and similarly placed co- accused has already been released on bail by this Court, therefore, he should also be released on bail.

12. Per contra, learned AGA as well as learned counsel for the informant vehemently opposed the prayer for bail and submitted that it is a case of honor killing and applicant not only committed the murder of the son of the informant but also committed the murder of his real sister.

13. They however could not dispute the fact that except the statement of co-accused and confessional statement of applicant, there is no other evidence against him on record.

14. They further could not dispute the fact that in the case of murder of his sister applicant has already been released on bail and co-accused Aas Mohammad, who was also made accused in the present matter during investigation has already been released on bail by Coordinate Bench of this Court and the case of applicant as far as evidence is concerned is on identical footing than him except the fact that applicant is the real brother of the girl, namely, Mahjabi and co-accused Aas Mohammad was her relative.

15. They further could not dispute the fact that in the present matter applicant is in jail for the last more than two years.

16. I have heard learned counsel for the parties and perused the record of the case.

17. However, it appears to be a case of honour killing but as far as evidence against the applicant is concerned it appears that except the statement of co-accused and confessional statement of applicant, there is no other cogent evidence against him on record.

18. Further, during investigation applicant has been made accused in the present matter along with co-accused Aas Mohammad and co-accused Aas Mohammad has been released on bail by Coordinate Bench of this Court and the case of applicant is almost at par with him except the fact that applicant is the real brother of the girl, namely, Mahjabi and co-accused Aas Mohahhad was her relative.

19. The Apex Court in the case of Satender Kumar Antil Vs. CBI & another (2022) 10 SCC 51 in paragraph no. 98 has observed that:- "Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation. Persons accused with same offence shall never be treated differently either by the same court or by the same or different courts. Such an action though by an exercise of discretion despite being a judicial one would be a grave affront to Articles 14 and 15 of the Constitution of India."

20. Therefore, considering the facts of the case and the observations made by the Apex Court in the case of Satender Kumar Antil (supra) applicant should be released on bail on the ground of parity itself.

21. Further, applicant is in jail in the present matter since

28.11.2022, i.e., for the last more than two years and till date trial of the case could not be concluded.

22. Further, however, it reflects that apart from the present case applicant is also having criminal history of one another case and that case also relates to Section 302 IPC but both these cases are connected with each other and in that case applicant was made accused with the allegation that he along with others committed the murder of his sister, namely, Mahjabi but in that case applicant has already been released on bail by another Coordinate Bench of this Court.

23. Further, law is settled that unless proven guilty an accused is deemed to be innocent and bail application of an accused should not be dismissed for punitive purpose.

24. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

25. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

26. Let the applicant-Muntizir be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity.

27. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

28. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 10.3.2025 SKM