1991 P Cr (PLP)

Here, it may also be relevant to state that Haroon .4ziz addressed a private complaint against Muhammad Azad, Muhammad Ajmal, Muhammad Rizvi, Moar Khan and Muhammad Arif, under sections 5 and 15, Islamic Penal Laws Act read with sections 307, 148 and 149, A.P.C. The complaint was made on December 30, 1989. On November 27, 1989, the accused-respondents moved the trial Court for their release on bail. The application remained on the file of the trial Court when on May 29, 1990 it was referred to the Shariat Court at Rawalakot Circuit. The date of hearing was fixed for June

9. Meanwhile, the file was destroyed on account of fire in the Court premises. In addition to the file of the bail application, the file of the trial Court was also destroyed. It was in the light of this background that another application for bail was moved by the accused before the trial Court on June 2, 1990. The application was accepted and the accused were let off on bail. This order has been assailed in the present petition.

3. Mr. Muhammad Nawaz, the learned Counsel for the complainant led the Court through the statements of eye-witnesses under section 161, Cr.P.C. and argued that it was a case of daylight murder. The accused were aggressors. The) took the law to their hands and killed Mahmood deceased and also made attempt to murder Haroon Aziz, m furtherance of their common objective. The learned Counsel assailed the order of the trial Court and emphasised that the order was bad in law as it rested on conjectures and bad reasonings. Reference was made to Muhammad Hanif's case P L D 1989 (SC) AJ&K

13. The learned Additional Advocate-General supported the aforesaid points addressed by the learned Counsel for the complainant. Sardar Muhammad Siddique Khan, the learned Counsel for defence controverted all the aforesaid points and endeavoured to establish that prosecution's version was doubtful. Moreover, it was a case of further inquiry. It was urged that prosecution made improvements in its version by introducing different manners of attack on the victims by the assailants. The eye-witnesses contradicted each other by varying in the number of assailants. It was also suggested that prosecution deliberately suppressed the injuries of Zafar Iqbal, accused who received gunshot wound and knife injuries. It was emphasised that the order of bail passed in exercise of discretion should not be lightly interfered. The learned Counsel referred various authorities in addition to Muhammad Abbas's case P L D 1988 SC (AJ&K) 14, Muhammad Abdullah's case P L D 1981 SC (AJ&K) 114 and case of Bostan, decided by this Court 1986 P Cr. L J 2228.

4. The scheme of law applicable to bail in case of offence punishable with death and life imprisonment is enunciated under the provisions of section 497, Code of Criminal Procedure. Ordinarily, the accused ascribed the offence of capital punishment is not entitled to bail. The rule is inflexible in the case of old person, minor and woman. The other exception to the rule is contained under subsection (2) of section 497, Cr.P.C., wherein it is postulated that when the Court is satisfied that no reasonable grounds exist to connect the accused with the alleged offence of capital punishment and that it is a case of further inquiry, the Court is empowered to release the accused on bail. The proposition received attention of the Supreme Court of Azad Jammu and Kashmir in Muhammad Abbas's case P L D 1988 SC (AJ&K) 14, wherein broad principles applicable to bail were illustrated as: "The superior Courts, while deciding the applications for bail, should take note of the fact that the appreciation of evidence and drawing of conclusion therefrom is the executive function of the; trial Court and the superior Coin is should not anticipate it while dealing with bail matters. In Chiragh Din v. The State P L D 1967 SC 340, dealing with the point, it was observe: `The appreciation of evidence and the drawing of conclusion therefrom in relation to all the circumstances is the function exclusively of the trial Court. It cannot be anticipated by a Superior Court dealing with an ancillary matter, e.g. the grant of bail, pending trial'. The rule that the superior Courts rarely enter into the merits of the case for the purposes of granting or refusing the bail seems to be quite sound because the appreciation of the evidence is the exclusive function of the trial Court. We honour this rule and would avoid going into deep appreciation of the merits of the case. It is, however, the basic principle of law that bail is not to be refused as a punishment merely on the allegations that a person has committed an offence punishable with death or transportation for life unless reasonable grounds appear to exist to disclose their complicity. The wisdom behind it is that if an accused, in view of the circumstances in a given case, is finally acquitted how can he be compensated for his detention, in the judicial lock-up during the trial. Then law allows concession of bail to such persons, of course, pending further inquiry into the guilt. The Supreme Court also expressed its view and laid down the principles relating to bail, in Muhammad Hanif's case P L D 1989 SC (AJ&K) 13 as:-- "Bail in non-bailable cases is a matter within the discretion of the Court which is to be exercised with due care and caution on the facts and circumstances of each case. The determination of the point as to whether bail can be allowed to a person accused of an offence punishable with death or transportation for life will depend on the facts of each case. However, it is not for the Courts at the bail stage to evaluate the evidence in minutest details but they are required to consider as to whether upon the material on recored such grounds, for belief, that the accused has or has not committed the offence punishable with death or transportation for life exist or not. 5.In Muhammad Abbas's case P L D 1988 SC (AJ&K) 14, the accused was ascribed allegation of accompanying Muhammad Ismail, principal accused, who fired on the victim and also joined him in firing with his .12 bore gun and contributing in infliction of injuries, resulting in death. The accused sought his release on bail on the premises that according to the post-mortem report, the injuries on the deceased were possible only with single fire ascribed to the principal accused. On making analysis of the evidence on record, the learned Chief Justice of the Supreme Court accepted the theory put forward by the defence and directed the release of Muhammad Abbas on bail.

6. In Muhammad Hanifs case, bail was declined despite the fact that one of the accused was injured in the incident. The theory of aggression of the complainant party and self-defence of the accused was repelled in the circumstances of that case.

7. The aforesaid authorities lead to an inference that the question of bail is to be decided keeping in view the broad principles postulated under section 497, Cr.P.C. and the dictum of the superior Courts but in the light of the facts of each case. Ordinarily, it is very seldom that the facts of two cases may be identical but some time such facts are found close to each other. In such situations, it is always' deemed advisable to follow the precedents to allow or refuse bail. Conversely, when the facts of the precedent case are found distinguishable from the case in hand, it is not binding to follow the precedent.

8. In the present case, the trial Court allowed bail to the accused as in its view, prosecution's version given in the F.I.R. was not found totally correct as, according to investigating agency, five innocent persons were involved by the complainant. As no evidence was found against them, they were dropped in the investigation and only 3 accused were sent to trial. The details of incident disclosed by Tahir Sarwar, complainant, Haroon Aziz, injured person, Muhammad Riaz, an eye-witness who saw the alleged incident alongwith the complainant, gave a contradictory version of the incident.

9. According to the First Information Report, all the accused (8 in number) were burdened with the liability of murder and attempt to murder. Moar Khan was ascribed the role of indiscriminate firing with his Kalashnikov, whereas Zafar 1qba1, Masud Iqbal, Muhammad Qasim and h1uhammad Azad were ascribed the role of inflicting fatal injuries to Mahmood deceased with knives. Similarly, the liability of injuries inflicted on the person of Haroon Aziz, was fixed on Muhammad Qasim, Muhammad Ajmal, Muhammad Rizvi and Muhammad Arif. Haroon Aziz in his statement under section 161, Cr.P.C., however, gave a different version. According to him, he was sitting in the shop of Muhammad Riaz when he heard noise and noticed that Mahmood came out of the Hotel of Manshad and ran towards home. He was chased by Zafar Iqbal and Masud Iqbal accused. They overtook and caught Mahmood deceased near the graveyard. Zafar Iqbal was armed with gun and Masud Iqbal with knife. Masud Iqbal inflicted injuries with knife to Mahmood. The witness intervened and endeavoured to save him. In the struggle, Zafar Iqbal received injury on his right hand and inflicted blow on the head of the witness with the butt of his gun. Masud Iqbal took the knife from the witness and caused further blows to Mahmood in his chest. Zafar Iqbal also inflicted injuries on the abdomen and legs of the witness. Muhammad Azad and Muhammad Qasim started firing with guns.

10. Muhammad Riaz, another eye-witness, stated that he heard noise of firing from the graveyard side. He arrived on the scene alongwith Tahir Sarwar and Mansoor Aziz and saw that Mahmood and Haroon Aziz were being chased by War Iqbal, Masud Iqbal Muhammad Qasim and Muhammad Azad. War Iqbal and Masud Iqbal carried knives in their hands, while Muhammad 0asim and Muhammad Azad were armed with .12 bore guns. Muhammad Qasim and Muhammad Azad caught Mahmood from behind when Zafar Iqbal and Masud Iqbal inflicted knife blows in his chest. Meanwhile, Zafar Iqbal took the gun from Muhammad Azad and inflicted a blow with butt side of the gun on the head of Haroon Aziz. He threw away the gun and Muhammad Azad took it again. War Iqbal and Masud Iqbal inflicted injuries with their knives, to Haroon Aziz.

11. There is, obviously prima facie, inconsistency and variation in the versions of the aforesaid persons, in respect of manner of incident, the weapon used and the number of the assailants. This position coupled with defence version and presence of injuries on the person of Zafar Iqbal, accused, prima facie, brings the case of: the assailants within the scope of provisions of subsection (2) of section 497, Criminal Procedure Code.

12. The investigating agency itself was unable to arrive al a definite conclusion as to which party look the initiative to attack the adverse party, resulting in the death of Mahmood deceased and injuries on Haroon Aziz and Zafar Iqbal. This is how both the parties were sent to trial. In an identical situation bail wits allowed to accused in Bostan's case 1956 P Cr. L J 2228.

13. In present case, bail was granted to tile respondents by trial Court in exercise of its discretion. The trial Court, though expressed its opinion in sketchy Manner, yet it arrived at a proper conclusion. It is well accepted that when bail is granted by the trial Court in exercise of its discretion, such order is not interfered with lightly unless of course, it is found perverse and bad in law. These distinct points are not found in the case of Muhammad Hanif, referred to above, were bail was declined by both the trial Court and Shariat Court and ultimately by the Supreme Court.

11. In view of the aforesaid position, it is not deemed expedient to interfere in the impugned order. It is, therefore, sustained and the petition is dismissed.

15. Before parting with the case, it is deemed expedient to order transfer of counter-case titled `State v. Haroon Aziz and others', from the file of Tehsil Criminal Court to District Criminal Court, Rawalakot, so that both the cases arisen out of common incident are disposed of by common Court, simultaneously Transfer of the case is ordered to avoid possibility of conflicting orders resulting in injustice. M.A.K./119-S/A.1&K Sh.C. Petition dismissed.