2010 P Cr (PLP)

MUHAMMAD AZAM KHAN, J.

This appeal is addressed against the order of the Shariat Court of Azad Jammu and Kashmir dated 10-12-2007, whereby while accepting the revision petition from the order of Additional District Court of Criminal Jurisdiction Dadyal dated 2-9-2000, the accused respondent has been released on bail.

2. A case under sections 302/34 and 109 APC was registered against Muhammad Yaqoob, Azram Bibi and Allah Ditta on 14-10-2006 at Police Station Dadyal on the written report made by the appellant, herein. She stated that there was dispute of land and house between her two brothers Muhammad Yaqoob and Pervaiz. Muhammad Yaqoob wanted to grab the land due to this he was inimical towards Pervaiz. Pervaiz disappeared during the night on 11-8-2006 and 12-8-2006. She insisted her brother Muhammad Yaqoob to trace him and file the report. Ultimately on 9-9-2006 Muhammad Yaqoob filed a report at Police Station Dadyal in respect of disappearance of Pervaiz. Later on, Muhammad Yaqoob went to Dobai. A decomposed dead body was found from a ravine near the village. Muhammad Yaqoob and his wife have murdered Pervaiz with the connivance of Allah Ditta, brother-in-law of Muhammad Yaqoob.

3. Muhammad Yaqoob was arrested. The police after investigation extended the benefit of section 169, Cr.P.C. to Allah Ditta and Azram Bibi. Ultimately on 23-12-2006 challan was submitted in the Additional District Criminal Court Dadyal. The accused moved an application for release on bail on 18-6-2007 which was declined vide order dated 29-7-2007. The respondent filed a revision petition in the Shariat Court of Azad Jammu and Kashmir from the order of the Additional District Criminal Court and requested for his release on bail. A learned single Judge in the Shariat Court accepted the revision petition and released the accused on bail vide impugned judgment on 10-12-2007, hence this appeal.

4. Haji Muhammad Anwar, the learned counsel for the appellant/complainant, argued that the judgment of the Shariat Court is against law. A strong prima facie case is made out against the accused/respondent. The case of prosecution rests upon the evidence of motive. Recovery of blood-stained axe was made on the pointation of accused from his house, a piece of brick (rora) which was used for breaking the skull of the deceased was also got recovered on the pointation of the accused. A piece of string which was cut from the cot of Pervaiz was got recovered from the house of accused on his pointation. Wet, blood-stained clothes of deceased along with two sacks were recovered during the search which were lying under the woods. While elaborating the point of motive he stressed that the accused threatened to kill Pervaiz in the house of his sister, Reyasat Bibi, in her presence. The statement of Reyasat Bibi has been recorded in the Court and she has testified this fact for proving the motive and threat Abdul Hamid and Basharat Hussain, witnesses, who were also present at the time of Punchahit which was conducted in the house of Reyasat Bibi, appeared in the Court as witnesses and corroborated the version narrated by Reyasat Bibi. Haji Muhammad Anwar strenuously argued that Kaneez Bibi, Reyasat Bibi and Nasim Akhtar are real sisters of the deceased and the accused, while the prosecution witness, Anjum daughter of Muhammad Ramzan, is real niece of the deceased Pervaiz and the accused, Muhammad Yaqoob. All the four witnesses have appeared in the Court and got recorded their statements, whereupon they have implicated the accused with the crime and statements of real sisters and real niece cannot be ignored particularly in the circumstances when no motive for falsely implicating the accused with the crime has been alleged to his sisters nor has any enmity been suggested to them. The evidence cannot be brushed aside even for the purpose of bail. Prima facie, on the basis of material collected by the prosecution the accused is connected with the crime, he has committed a heinous crime like murder while murdering his brother in a brutal manner. The offence falls in the prohibitory clause of section 497, Cr.P.C. The Shariat Court has released the accused on bail without any justification.

5. While controverting the arguments Choudhry Muhammad Sharif Tariq, the learned counsel for the accused/respondent, argued that a false and fabricated case has been concocted against the respondent on the behest of Muhammad Ramzan, brother-in-law of accused and husband of Mst. Kaneez Bibi, complainant. Muhammad Yaqoob is serving in Dobai for the last about 20 years and he was earning his livelihood for the family. He used to financially support his brother, Pervaiz. The dispute in respect of land and house between the two brothers was of not such a nature on the basis of which one could go to the extent of killing his brother. After disappearance of Pervaiz, Muhammad Yaqoob kept of searching him and filed a report at Police Station Dadyal on 9-9-2006. He got on searching his brother since he was employed in Dobai. He proceeded to Dobai on 28-9-2006. Just five days of his arrival in Dobai he received the information that human skeleton has been found in a ravine near his village and it is said that this skeleton is of his brother, he reached back on the next day. After nine days of his arrival, Muhammad Ramzan, moved an application at Police Station Dadyal, which is purported to have been filed on behalf of Kaneez Bibi. He has further argued that prosecution failed to collect any evidence against the respondent on the basis of which he could be connected with the crime. While attacking on the recovery of brick (rora) he said that the piece of rora is often found and from this type of recovery the accused cannot be connected with the crime. The axe and piece of string of cot are allegedly recovered from the room of the accused which is used for cattles. Cattle room is normally not locked and is kept open and this type of recovery cannot be used against the accused. Some clothes and two sacks are recovered from the courtyard of Pervaiz's house which is alleged to be that of the deceased. The report of Chemical Examiner is not supporting, He drew our attention towards the post-mortem report which describes that some bones were recovered, skull was intact. If the brick (rora) was used for breaking the skull then why the skull was intact. If the axe was used for cutting the dead body then why there was no sign of cut on any bone. He asserted that Muhammad Ramzan has concocted a story for grabbing his land and house and installed the witnesses of motive. The prosecution failed to bring out any connecting evidence against the accused on the basis of which he could be connected with the crime, prima facie no case is made out against the accused/ respondent. From the facts the case against the accused/respondent appears to be one of further inquiry and the Shariat Court has exercised the discretion in a judicious manner. Very strong grounds are required for cancellation of bail. He relied upon State v. Muhammad Ayub Khan [1994 SCR 32], Khurshid Ahmed v. Muhammad Ilyas and others [1994 SCR 136] and Ashiq Hussain Shah and others v. Mst. Fazal Begum and others [1994 SCR 263]. The principle of law enunciated in all the three authorities pertains that this Court normally does not interfere in the discretion exercised by the Shariat Court unless found to be arbitrary, perverse or capricious.

6. Ch. Muhammad Mushtaq, the learned Advocate-General has argued that the prosecution has collected sufficient evidence on the basis of which the accused is connected with the crime. The conduct of accused is such that he was not entitled to concession of bail. He has murdered his real brother in a brutal manner. His sisters have deposed against him that he has killed Pervaiz his real brother. The Shariat Court has exercised the discretion in an illegal manner. The judgment is a telegraphic one; no reason has been recorded for releasing the accused on bail. Prima facie the accused is connected with the crime and he requested for cancellation of bail.

7. We have heard the learned counsel for the parties and gone through the record. At the very outset we would like to make it clear that at bail stage deeper scrutiny or the minute study of the evidence on record is neither permissible nor desirable. However, the Courts cannot decide a case in vacuum. The Courts are supposed to make tentative assessment of the First Information Report, statements of the witnesses recorded under section 161, Cr.P.C., recovery evidence, the statements of witnesses recorded in the Court and other incriminating evidence collected by the prosecution and of course defence plea, if any, raised by the accused. The record reveals that the deceased, accused and the Complainant are real brothers and sister. The accused is working in Dobai for earning the livelihood. His version is that he used to financially support his brother, Pervaiz, deceased. The version of the complainant is that there was a dispute in respect of land and house between the two brothers. The accused was inimical towards the deceased due to the reason that the deceased was unmarried and the accused wanted to grab the whole property. One of their sisters also stated in the Court that the accused threatened once to the deceased that he will kill him. Two other witnesses have corroborated this piece of evidence. We have to see what is other evidence in support of this version on the basis of which the accused can be connected with the crime or there appears reasonable grounds for believing that he is guilty of the offence punishable with death or imprisonment for life.

8. Apart from evidence of motive, the prosecution has relied upon recovery of human remains in the form of scattered bones, recovery of axe, recovery of piece of string,, recovery of some wet clothes along with two sacks, the postmortem report and chemical examiner report. Without minutely perusing this evidence we have taken a bird eye view of this evidence. We have observed that the occurrence is unseen, only human remains in the form of bones were recovered from ravine near the village. The post-mortem was conducted by the Civil Medical Officer Dadyal. The Doctor has descried the condition of dead body in the words that "unidentifiable decomposed dead body having no muscles or any other tissue except bony structure. Bones were scattered." The Doctor has not described that any bone was broken or cut even he has not given the details of the bones which were recovered. The recovery of axe has been effected from the cattles room of the accused along with a piece of string these articles were sent to chemical examiner. The report of Chemical Examiner is not supportive. Prima facie, the evidence collected by the prosecution does not support the version adopted by the complainant.

9. Most important circumstance of the case is that three real sisters have deposed against the accused. In our society it is very difficult for the real sisters to falsely implicate the real brother in a murder case, particularly when one of their brothers has been murdered and only one alive will go to gallows on the basis of their evidence if ultimately the Court arrives at the conclusion that the accused has committed a crime and the case is proved against him. This evidence cannot be brushed aside easily, but the fact remains that prima facie the statements of real sisters are not corroborated by any other evidence. The argument that the accused has committed a heinous crime by murdering his real brother cannot be considered in the light of above made observation. We may observe that mere heinousness of crime is no ground for refusing the bail.

10. The Shariat Court has released the accused on bail on the ground that prima facie the case against the accused falls in the ambit of further inquiry. From the survey of whole record we have reached to the conclusion that prima facie there appears no reasonable ground for connecting the accused with offence and his case falls within the ambit of further inquiry. We may observe that the Shariat Court has released the accused on bail and this Court normally doesn't interfere in the discretion exercised by the Shariat Court unless it is against the settled principle of law, arbitrary, perverse or capricious. In the case titled Muhammad Fazal v. Zahid Mahmood and 3 others 1998 MLD 1156, it was observed by this Court as under:- "

10. The accused-respondents were released on bail by the trial Court. The discretion thus exercised by the trial Court was upheld by the Shariat Court. It is an established principle of criminal law that a valid discretion exercised by the trial Court cannot be interfered with unless the same is either arbitrary, perverse or capricious. It is always the arbitrariness or perversity of the discretion which calls for indulgence by this Court. In our view the trial Court as well as the Shariat Court committed no illegality in allowing the concession of bail to accused-respondents." In another case titled Ejaz Ahmed v. Imran Tipu and 3 others 1998 PCr.LJ 371, it was held by this Court as under:- "

9. The Shariat Court has examined all the aspects of the case and has exercised its discretion in favour of the respondents. It is well-settled that a bail order is not to be interfered with merely on the ground that this Court may take a different view from that which has been taken by the Shariat Court. We do not want to record any comments on the allegations against the respondents because it may prejudice the outcome of the case. However keeping in view all the facts of the case including the fact that the respondents are students, we decline to interfere in the order of the Shariat Court".

11. After going through the F.I.R. statements of witnesses recorded in the Court, recoveries, Chemical Examiner Report and post-mortem report, we are of the view that the case of the respondent falls within the ambit of further inquiry. The Shariat Court exercised the discretion in a judicious manner, which need no interference of this Court. The result of the above is that finding no force in this appeal, it is hereby dismissed. H.B.T./74/SC(AJ&K) Appeal dismissed.