2014 P Cr (PLP)

MUHAMMAD AZAM KHAN, C.J.

The above titled revision petition under section 25 of the Islamic Penal Laws (Enforcement) Act, 1974 has been filed from the order of the Shariat Court dated 9th May, 2012, whereby accused-respondent No.1 has been released on bail.

2. Necessary facts for the disposal of the revision petition are that a case under sections 302 341, 34, 109, 147, 148, 149, A.P.C. read with section 13 of Arms Act was registered against accused-respondent No.1 and others at Police Station Thorar on 20th March, 2010, on a report made by the petitioner herein. In the written application he averred that his brother Nisar Hussain was going to Kakara Taeen to attend his work wherein he was awarded a contract for construction of Girls Primary School. While boarding on a motorcycle, when he reached at the distance of 400 yards away from his house, the accused persons, namely Imran son of Lal Husssain, Shafique son of Muhammad Rafique, Sarfaraz, Talib, Rustam son of Zakir Hussain, Sabir, Adab Hussain sons of Ajaib Khan, Tahir, Shahid, Waheed son of Muhammad Ayub, Irfan Muhammad Nawaz, Muhammad Imran son of Muhammad Hanif, Zafar, Javaid son of Muhammad Ashraf, Majeed son of Azam, Naseer son of Abbas Raees and Jahangeer son of Muhammad Hayat, castes Sudhan, residents of Tain who were waylaying in armed condition started firing with the lethal weapons. Imran son of Lal Hussain fired with Kalashnikov which hit at the chest and neck of his brother while Muhammad Irfan son of Hanif also fired with Kalashnikov with the intention to kill the brother. The bullets hit at the legs, arms and abdomen. Other accused persons were also firing with lethal weapons. Due to firing, brother was injured and fell down on the road and died on the spot. The accused has committed the offence on the behest and with the connivance of Muhammad Afsar Khan son of Alyan Khan, Lal Hussain son of Mir Akbar, Muhammad Azam, Muhammad Ayub son of Mir Akbar, Jamil son of Jowahir Khan, Rasheed son of Muhammad Hayat, castes Sudhan, residents of Tain. The occurrence, apart from the complainant, is witnessed by Abid son of Ashiq Hussain, Gulzaman son of Nazam Khan Nishat son of Raj Khan, Nazakat son of Mir Muhammad, castes Sudhan residents of Tain. The motive behind the offence is previous enmity and litigation. On this report a case under sections 302, 341, 127 148, 149, 34, 109, A.P.C. was registered at Police Station Thorar at 2-25 p.m. After necessary investigation, the police submitted a challan in the District Criminal Court, Rawalakot on 6-1-2011. Respondent No.1 and two others filed application for grant of bail in the District Criminal Court, Rawalakot on 18th October, 2011, which was dismissed on 15th December, 2011. Dissatisfied, accused-respondent No.1 and two others filed a revision petition in the Shariat Court. The learned single Judge in the Shariat Court accepted the revision petition vide impugned judgment on 9th May, 2012 and released the accused-respondent No.1 on bail. The complainant has filed the revision petition from the judgment of the Shariat Court for cancellation of bail granted to accused-respondent No.1.

3. Barrister Humayun Nawaz Khan, Advocate, the learned counsel for the petitioner submitted that the judgment of the Shariat Court whereby accused-respondent No.1 has been released on bail is against law and the record. The findings recorded by the Shariat Court are perverse. The accused-respondent No.1 was nominated in the F.I.R. He was present at the place of occurrence in an arm condition. He was not entitled for concession of bail on this ground. The learned counsel submitted that the Shariat Court failed to consider this aspect of the case that the deceased was murdered in an indiscriminate manner and almost 90 bullets were fired by the accused, therefore, the accused respondent fully shared the intention for committing murder as well as desperately participated in the commission of the same. The learned counsel submitted that apart from the statements of the witnesses recorded under section 161, Cr.P.C. there are corroboratory evidence for implicating the accused-respondent in the case that .30 bore pistol has been recovered from the accused-respondent. In the post-mortem report, the doctor has opined that there are multiple fire-arm injuries on the body of the deceased. The finding recorded by the Shariat Court that the case against the accused-respondent is one of further inquiry is against the record. The learned counsel referred to the cases reported as Muhammad Faryad and another v. The State [1989 PCr.LJ 214], State v. Muhammad Bahram [1994 SCR 272], and Aziz Bi v. Fazal Hussain and another [2007 SCR 138] and [1999 SCR 211(sic.)]. In the case titled Muhammad Faryad and another v. The State [1989 PCr.LJ 214], this Court has held that in case of murder the normal rule is refusal to grant bail and on merits bail can only be granted either in cases where there are no reasonable grounds for believing that the accused was guilty of the charge or the case is such that it requires further enquiry or it is covered by any of the exceptions under section 497, Cr.P.C. Bail in such cases is a matter within the discretion of the trial Court which is to be exercised with due care and caution in view of the circumstances of the case. In the case titled State v. Muhammad Bahram [1994 SCR 272], this Court has held that section 497(1) imposes a restriction that if reasonable ground appears for believing that the accused has been guilty of offence punishable with death or transportation of life imprisonment, he shall not be released on bail. The bail can only be allowed if at any stage of the investigation or inquiry of the trial it appears that there are no reasonable grounds for believing that the accused has committed guilty of non-bailable offence. Similarly in the case referred to by the learned counsel for the petitioner titled Aziz Bi v. Fazal Hussain and another [2007 SCR 138], the fact of the matter was that the accused after obtaining the concession of bail proceeded abroad. The learned counsel representing the accused produced some Photostat copies of medical certificate issued by the doctor from U.K. The Court held that the accused after obtaining the concession of bail has absconded, thus he misused the concession of bail. In such circumstances this Court recalled the bail of the accused on the ground that he is misusing the concession of bail and did not appear before the Court. The case cited by the learned counsel for the petitioner reported as [1999 SCR 211(sic.)] does not find place at the relevant page. The learned counsel lastly argued that the accused respondent is misusing the concession of bail. He is harassing the witnesses. He requested for cancellation of bail granted to the accused-respondent.

4. Sardar Muhammad Suleman Khan, Advocate, the learned counsel for the accused-respondent submitted that the appeal merits dismissal. The judgment of the Shariat Court is perfectly legal. From the tentative assessment of the record no case for cancellation of bail is made out by the prosecution. From the tentative assessment of the case, the case of the accused respondent appears to be one of further inquiry. He submitted that the rules governing grant of bail are quite different from the one applicable for cancellation of bail. He also argued that the respondent is a minor. He also submitted that no overt act is attributed to the accused-respondent. The bail granting order passed by the Shariat Court has been passed in a judicious manner while considering the rules governing the matter of grant of bail.

5. Ch. Shoukat Aziz, Additional Advocate-General supported the arguments advanced by the counsel for the petitioner.

6. We have heard the learned counsel for the parties and perused the record. The perusal of the F.I.R. shows that it is alleged that Imran son of Lal Hussain fired with Kalashnikov which hit at the chest and neck of the deceased. No act of firing is attributed to the accused-respondent and only his presence is shown at the place of occurrence. Although a .30 bore pistol is shown to have been recovered from him but crime empties recovered from the scene of occurrence do not match with the pistol, recovered. At the stage of bail, recovery or .30 bore pistol cannot be considered as corroboratory piece of evidence.

7. It may be stated that at the bail stage only the tentative assessment of the record i.e. F.I.R., statements of the witnesses recorded under section 161, Cr.P.C., the Medico-legal Report and of course defence if any, raised by the accused have to be considered. Deeper appreciation of evidence is not permissible at the stage of bail. This Court normally does not interfere with the discretion exercised by the Shariat Court unless the discretion is found capricious, against the settled norms governing the bail matter and against the record. The question of cancellation of bail do not stand on the same pedestal as the rules governing the grant of bail are different to one applicable for cancellation of bail. Once the bail is granted by a Court of competent jurisdiction very strong reasons are required for its cancellation. The argument of the counsel for the petitioner that after being released a criminal case has been registered against the accused-respondent, therefore he is not entitled for grant of bail. He is harassing the witnesses. From the perusal of the F.I.R., produced by the counsel for the petitioner it appears that the F.I.R. was registered at a different place in a different matter which was not between the petitioner and the accused-respondent, nor it has any nexus with the case in hand. Mere argument without any record that the accused-respondent is tampering with the evidence cannot be believed and bail cannot be cancelled on this ground. We have reached the conclusion that the order passed by the Shariat Court has been passed in a legal manner. It warrants no interference by this Court. The revision petition has no force it is hereby dismissed. HBT/15/SC(AJ&K) Petition dismissed.