2001 PLP 2923 (YLR)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal has been directed against the judgment passed by the Shariat Court of Azad Jammu and Kashmir on 27‑4‑2001, whereby while disposing of the revision petition against the order of District Criminal Court, Kotli, dated 20‑7‑2000, the prayer for bail was declined to the appellant herein and the order of District Criminal Court, Kotli was upheld.

2. The necessary facts, giving rise to the present appeal, are that complainant, Nadeem Ahmed Khokhar, respondent No.2 herein, lodged an F.I.R. at Police Station Kotli stating therein that on 16‑1‑2000, at about 9‑30 a.m. accused Muhammad Javed and Muhammad Riaz for the purpose of construction of shops on the disputed land, which is a thoroughfare, started making the measurement. Muhammad Sadiq Khokhar reprimanded the accused who misbehaved him, in the meanwhile Muhammad Nazeer Khokhar came at the place of occurrence. He also admonished the accused for their unlawful act and asked his brother Muhammad Sadiq Khokhar to go home and to proceed against the accused according to law. Upon this the accused attacked upon Muhammad Nazeer Khokhar. Accused Muhammad Riaz started beating Muhammad Nazeer Khokhar with kicks and fists and stated that he would teach him the lesson for proceeding against them. Upon this accused Muhammad Javed, appellant herein, caused a blow upon Muhammad Nazeer Khokhar with a stone which hit him on his left side of eyebrow in consequence of which the father of complainant, Muhammad Nazeer Khokhar, died on the spot instantaneously. On this report a Criminal Case No.12 for allegedly committing the offence under section 302/34, A.P.C. was registered against the accused. The police after necessary investigation, by apprehending the accused, presented a challan against the appellant, Muhammad Javed, and his brother Muhammad Riaz, before the District Criminal Court, Kotli, on 26‑10‑2000.

3. The accused moved their bail application before the District Criminal Court, Kotli but the same was disallowed by it vide its order, dated 20‑7‑2000 to the extent of appellant Muhammad Javed. However, the bail to Muhammad Riaz, co- accused, was allowed vide the same judgment. The appellant, Muhammad Javed, challenged the order of District Criminal Court, Kotli before the Shariat Court of Azad Jammu and Kashmir by filing a revision petition where Nadeem Ahmed Khokhar, son of deceased, the complainant, called in question the order allowing bail to Muhammad Riaz, the co‑accused.

4. The Shariat Court vide its impugned judgment; dated 20‑7‑2001 disallowed both the revision petitions and maintained the order passed by the District Criminal Court, Kotli. It is the aforesaid judgment of the Shariat Court, dated 27‑4‑2001 which has been impugned by way of present appeal by Muhammad Javed, appellant.

5. In support of appeal it was vehemently contended by Raja Muhammad Khurshid Khan, the learned counsel for the appellant, that both the Courts below erred in holding that the appellant was prima facie, involved in the murder of Muhammad Nazeer Khokhar. The learned counsel contended that the doctor who initially conducted the postmortem examination opined that injury No‑1 has led to the "cardiac arrest" resulting in the death of the deceased. The learned counsel pressed into service the submission that on the application of accused‑appellant a Medical Board was constituted to conduct the post mortem examination of the deceased once again and the said Board after examination of the dead body opined as follows:‑‑ "The Board is of the opinion that deceased received primary impact injury on the left side of the forehead, as a result he fell down on the ground and received secondary impact injuries over right tempro occipital area of head. These secondary impact injuries to the brain may have received defused coup and contra coup injuries which were sufficient to cause death, therefore, the cause of death is head injury. Naurogenic or vasovagal shock can also result from such injuries. " The learned counsel on the basis of initial post‑mortem report of the deceased and the subsequent report of the Medical Board contended that both the reports are destructive to each other. The first report, according to him, says that injury No.1 caused "cardiac arrest" while the report of the Board says that second impact injury by falling to the brain may cause the death. Thus, he contended that it could not be said with certainty that the injury caused by the appellant has caused "cardiac arrest" of the heart resulting into death of deceased. In the circumstances the appellant is entitled to the concession of bail as his case falls within the purview of further inquiry. The learned counsel also contended that the weapon of offence is of very small size and it cannot be said that by causing injury with the alleged stone the appellant ever intended to cause the death of the deceased. The injury, according to the learned counsel, as shown in the site plan was inflicted from 13 feet. Had the appellant intended to cause death or grievous injury to the deceased he must have stoned the deceased with velocity. The learned counsel by elaborating his point argued that it is the velocity of a weapon of offence which can show that the accused intended to cause simple or grievous injury or death. In the instant case as only bruises were caused, so the element of force and velocity being missing, at least it needs further inquiry. The learned counsel strenuously argued that the eye‑witnesses in their statements under section 161, Cr.P.C. do not state that the deceased fell down rather they deny this fact. Therefore, the report of the Board of Doctors contradicts the version of the eye‑witnesses and also nullifies the post‑mortem report which was originally prepared by the doctor. The learned counsel also submitted with vehemence that how the appellant could know that the injury would be sufficient to cause death or grievous injury to the deceased. The learned counsel in support of his contentions referred to Taylor's Principles and Practice of Medical Jurisprudence written by A. Keith Mant, 13th Edition at page 111, contending that due to heart disease there is often a dramatically sudden fall in blood pressure so that the person may fall and injure himself. These injuries must be evaluated with extreme care as in most cases they are not contributory to death but are merely incidental to the dying process. The learned counsel further argued that even if the prosecution version is admitted as correct in its totality, it cannot be said that the appellant has caused injury with intention to cause grievous heart or death. The learned counsel for the appellant further submitted that the medical evidence being in conflict with the ocular version brings the case of appellant 'within the purview of subsection (2) of section 497, Cr.P.C., as such both the Courts below have erred in disallowing the concession of bail to the accused‑appellant. The learned counsel for the appellant in support of his contentions placed reliance upon cases reported as Ch. Muhammad Bashir v. Ch. Muhammad Zaman and 2 others (PLD 1985 SC (AJ&K) 48) and Muhammad Abbas and another v. The State (PLD 1988 SC (AJ&K) 14).

6. Controverting the argument raised by the learned counsel for the appellant, Ch. Muhammad Yusuf, the learned counsel for the complainant‑respondent No.2, submitted with vehemence that it is a daylight occurrence which was witnessed by at least three eye‑witnesses who had fully supported the version of the prosecution. The learned counsel contended that P.W.3, Muhammad Sadiq's house is situated in front of place of occurrence. Thus, he being a natural witness had supported the prosecution case in the similar way as the other eye‑witnesses have supported. The learned counsel for the complainant contended that there being no conflict in the ocular account of the prosecution case and the medical evidence, the accused‑appellant is not entitled to the concession of bail as he is prima facie, connected with a heinous offence. The learned counsel contended that at the stage of bail, the appreciation of prosecution evidence whether it be the ocular version of the eye witnesses or a corroborative piece of evidence in the shape of medico‑legal report into the minute details is not permissible under law and is against the settled principles of law relating to bail matters. The learned counsel for the complainant also contended that in his statement under section 242, Cr.P.C. the accused‑appellant Muhammad Javed has admitted the occurrence on the relevant date, the presence of deceased at the place of occurrence, his having been dying instantaneously at the place of occurrence, the presence of accused and the prosecution witnesses. Therefore, it shows beyond any manner of doubt that the accused‑appellant is prima facie, connected with the commission of offence as alleged by the prosecution. The learned counsel for the complainant contended that to allow the concession of bail to an accused person or to disallow it is primarily the function of trial Court and the Shariat Court. He submitted that the Supreme Court being a Court of law normally does not interfere. in the judicial exercise of discretion duly exercised by the trial Court and the Shariat Court unless and until the same be either perverse, capricious or arbitrary.

7. Syed Ejaz Ali Gilani, the learned Assistant Advocate‑General appearing on behalf of the State, fully owned and supported the contentions of the learned counsel for the complainant and argued that even if the medical evidence be in conflict with the ocular version, at the stage of bail we cannot ignore the ocular account of the eye‑witnesses. The learned Assistant Advocate‑General in support of his contentions retied upon a case reported as Fazal‑ur‑Rehman v. The State PLD 1981 SC (AJ&K) 10.

8. After giving our due consideration to the arguments advanced at the Bar and perusing the relevant record, at the very outset it may be stated that by now it stands settled by the judicial pronouncements that at the stage of bail the evidence or the material brought on record by the prosecution is not to be appreciated in its minute details rather the same is to be taken view of tentatively. The superior Courts, while deciding the applications for bail should take note of the fact that appreciation of evidence and drawing of conclusions therefrom is the exclusive function of the trial Court and the superior Courts should not anticipate it while dealing with the bail matters. In Chiragh Din v. The State (PLD 1967 SC 340) dealing with the point it was observed as follows:‑‑ "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."

9. In the instant case the main thrust of the argument of the learned counsel for the appellant is that the medical evidence being not compatible with the ocular version of the prosecution, the same brings the case of the appellant within the ambit of further inquiry. it may usefully be stated that there are numerous authorities for and against the proposition. No doubt there are cases wherein it has been observed that if the medical evidence is in conflict with the ocular version of the prosecution, the same may bring the case within the ambit of further inquiry. Similarly there are cases wherein it has been observed that mere fact that medical evidence is in conflict with the ocular version of the prosecution or is at variance with the ocular version, the same by itself is no ground for the grant of bail to an accused who is allegedly involved in a non‑bailable case. For instance if the case of prosecution as disclosed in the F.I.R. and the other material collected by the prosecution is that 'A' committed the murder of ' B' by causing knife injuries upon the person of deceased and resultantly because of the said injuries the deceased died but the medical evidence on the other hand showed that the injuries caused on the person of deceased were by blunt weapon and not by a sharp‑edged weapon, then it would certainly be one of the grounds for bringing the case of ' A' outside the proviso of section 497, Cr.P.C. Every criminal case is to be adjudged in the light of its own peculiar facts and circumstances. An authority in one criminal case is hardly applicable in the other criminal case as the authority given in a certain case is relevant only in the facts and circumstances of that case and not in any other case.

10. In the instant case all the eye witnesses, namely, Nadeem Ahmad Khokhar, Muhammad Sadiq Khokhar and Atta‑ur -Razzaq who have been duly named in the F.LR. are unanimous on the point that Muhammad Javed, accused, inflicted blow with the stone upon Nazeer Ahmed Khokhar on his forehead in consequence of which he ‑died on the spot. Atta‑ur‑Razzaq who happens', to be an independent witness apart from Muhammad Nadeem Khokhar and Muhammad Sadiq Khokhar has also supported the prosecution version that accused Muhammad Javed inflicted injury on the forehead of the deceased with a stone in consequence of which he died. The alleged weapon of offence, i.e. the stone, has also been recovered‑ at the instance of Muhammad Javed accused. The doctor who initially conducted the post‑mortem report of the deceased on 16‑1‑2000 observed injury No.1 on the person of deceased as a bruise over left orbit 2 x 2 c.m. in diameter creptis over that area. In the column of opinion it has been observed by the doctor that injury No.1 is the definite cause of death which has provocated the neusogenic and vasovagal shock which has led top cardiac arrest resulting in death. However, the Board, which on the application of accused examined the deceased on 23‑2‑2000, observed that the Board is of the opinion that deceased received primary impact injury on the left side of the forehead, as a result he fell down on the ground and received secondary impact injuries over right tempro‑occipital area of head. These secondary impact injuries to the brain may have received defused coup and contra coup injuries which were sufficient to cause death, therefore, the cause of death is head injury.

11. Much stress has been laid down by the learned counsel for the appellant that on the basis of post‑mortem report which was conducted on the day of occurrence, the cause of‑ death is shown as injury No. 1 which is found on the forehead of the deceased, whereas according to the report of Board which was conducted on 23‑2‑2000 after about a month, the cause of death is shown the secondary injuries, which may be the result of falling down, but all the same the fact remains that even in the report of Medical Board the cause of death is the head injury. In our considered view both the medical reports prima facie, support the ocular version of the prosecution. Even if there be some slight difference in both the reports, the fact of the matter is that even the Board has opined that the deceased died of head injury. Moreover, the doctor who originally conducted the post‑mortem report and the members of the Board who conducted the subsequent post‑mortem report when they will appear in the Court as witnesses, they will be in a better position to explain the difference, if any, between their reports but prima facie, we are of the view that both the post‑mortem reports corroborate the prosecution version.

12. It may also be highlighted that the value of medical evidence is only for the purpose of corroboration and the same is in the nature of confirmatory evidence. The medical evidence by itself is not sufficient. to connect an accused with the commission of a non‑bailable offence alleged. It is a settled principle of law that a conviction in a criminal case can be recorded even on the statement of eyewitnesses without any corroboration provided the witnesses are telling the truth. Corroboration is not a rule of law but the same is only a rule of prudence. It is also settled principle of law that corroborative evidence should not be of the same probative force as that of the direct evidence. Moreover, what type of corroboration in a particular case will be sufficient depends upon case to case. Therefore, it cannot be laid down as a universal rule that there must be a corroboration in all criminal cases in order to Corroboration simply confirms and corroborates the truth of the story narrated by the eye‑witnesses. However, at this stage of bail we do not deem it proper to dilate upon detailed discussion of the corroboration or its probative force or how much corroboration or to what extent it is required in a particular case or even not at all in view of the facts and circumstances of the case. In a case reported as Hafiz Imam Bakhsh v. Muhammad Bakhsh and others NLR 1978 Criminal 535 in a bail matter the High Court observed that medical evidence was not consistent and uniform and fatal injury was not attributed to any one of respondents. However, the High Court also observed that it would be premature at bail stage to determine if all respondents were present and had participated. In the opinion of the High Court out of the injuries found on the body of deceased only one was on head region and medical evidence did not disclose that head injury was cause of death of deceased; rather medical evidence revealed that during the course of prolonged illness and hospitalization operation was performed on deceased and his spleen had to be removed. Without going into details lest it might not prejudice the trial, the High Court allowed bail to respondents. When the matter came up before the Supreme Court it was observed by the Supreme Court at page 536 of the report that the High Court while declining to express any opinion on merits was not justified at the same time in observing that fatal injury was not attributed to anyone and that it would be premature at bail stage if all accused were and had participated or not. It was further held that the High Court without any discussion appears to have misread medical reports about deceased in observing that it was not the High Court seems to have allowed bail to respondents in disregard of some of the salient facts of the case and legal principles applicable to them. Thus, the bail granted by the High Court was cancelled. In a case reported as Ch. Barkat Ali v. The State (1979 PCr. LJ 352) it was observed that bail of the petitioner was sought on grounds; (i) medical evidence is in conflict with ocular version, and (ii) the case of petitioner is identical with other co‑accused already granted bail by trial Court. It was observed that these pleas can be better appreciated upon only on the basis of evidence that may come on record. The bail was, thus, declined in the circumstances. In a case reported as Fazal‑ur -Rehman v. The State (PLD 1981 SC (AJ&K) 10), relied upon by the learned Assistant Advocate‑General, Fazal‑ur‑Rehman was the principal accused in a murder case whose bail had been declined by the High Court. When the matter came up before the Supreme Court, on behalf of accused Fazal‑ur‑Rehman, apart from other arguments, the following important arguments were pressed into service:‑‑ (i) That the whole affair flared up due to sudden quarrel in which Gulab Din was aggressor; (ii) that the act ascribed to Fazal-ur- Rehman is only of throwing one brick‑bat at the chest of the deceased, which has caused ,only simple injuries and as such he cannot be saddled with the intention or knowledge of causing death of Gulab Din; (iii) that the deceased, as is apparent from the certificate issued by a doctor from England (photostat copy placed on the file of this Court) was suffering from Tuberculosis which fact, due to the deceased hypersensitiveness, accelerated his death by a simple injury with a brick‑bat and this fact is sufficient to show that appellant Fazal‑ur‑Rehman had no intention to cause death of deceased or to cause such a bodily injury which may have caused the death of the deceased in the ordinary course of nature; (iv) that under section 497, subsection (2), Cr.P.C. there are no reasonable grounds for believing that the accused had committed a non bailable offence but there are sufficient grounds for further inquiry into his guilt and in fact there appear reasonable grounds for, believing that the appellant is not guilty of offence punishable with death or transportation for life; and (v) that the accused Fazal‑ur‑Rehman can only be convicted for an offence under section 323, P.C. for causing simple injury to the deceased. By repelling the arguments of the learned counsel for accused Fazal‑ur‑Rehman, this Court observed at page 16 of the report in paras.Nos.17 to 19 in a following manner:‑‑‑ "17, However, the learned counsel for Fazal‑ur‑Rehman wants us to release the accused on bail on the ground that the post‑mortem report enters plura and some other organs of the deceased as unhealthy and reading the post‑mortem report alongwith report from a doctor from England, the only conclusion that can be drawn is that the accused has not committed an offence punishable with death or transportation for life. At the most, the accused can be said to have committed an offence, as stated earlier, under section 323, Penal Code in causing simple injuries to the deceased.

18. We regret, we cannot agree with the learned counsel our view is that we cannot embark upon the appraisal of the medical evidence as it is bound to prejudice the trial Court. We are fortified in our view in a case entitled Muhammad Aslam and others v. The State PLD 1967 SC 539 wherein at page 542, it has been observed:‑‑ "This appraisal of the, medical evidence was bound to affect the judgment of the trial Court for it could be assumed that in granting bail the High Court had concluded that there did not grounds for believing that they had been guilty of an offence punishable with death or transportation for life." (Underlining is ours).

19. Apart from it the Supreme Court is not expected to examine in deep the merits of the prosecution case or the plea of defence in finding whether reasonable grounds appear for believing that the accused persons have, been guilty of murder, because any expression of opinion may amount to dispose of the case before the trial is completed. In the case before us there is direct evidence of the assault by Fazal‑ur‑Rehman on Gulab Din, deceased. Whether the injury caused by the appellant was caused with the intention of causing death or with the knowledge that injury may cause death, in the ordinary course of nature, is for the trial Court to judge and to determine and not for us. We, therefore, refrain to make an assessment of the evidence especially the medical evidence and form an opinion whether the offence committed by the appellant falls under section 302 or 323, A.P.C." It may also be pointed out that in Fazal‑ur‑Rehman's case referred to above, the learned counsel for the present appellant was one of the Judges constituting the Bench of the Court and was the author of the said judgment.

13. It is simply amazing that despite the fact that all the three prosecution witnesses clearly deposed in their statements under section 161, Cr.P.C., that accused Muhammad Javed inflicted injury upon the eyebrow of deceased with a stone which resulted into his death. The ocular version, as stated earlier, is prima facie supported by the medical evidence and the other circumstances. In such view of the matter, we are unable to subscribe to the view of the learned counsel for the appellant that the injury being simple in nature was not sufficient in the ordinary course of nature to cause the death of the deceased as the same is likely to prejudice the case of the prosecution one way or the other and to prejudge the case at the stage of bail.

14. In order to ascertain whether reasonable grounds exist or not, the Courts do not have to probe into the merits of the case. They have to look only at the material placed before them by the prosecution to see whether some tangible evidence is available against the accused which, if left unrebutted, may lead to the inference of guilt. However, reasonable grounds are not to be confused with mere allegations or suspicions nor with tested and proved evidence which the law requires for a person's conviction for an offence. Our aforesaid view stands fortified by a case titled Noor Ahmed v. State (PLD 1971 SC 174). In an unreported case titled Shakeel Ahmed v. State Criminal Appeal No. 15 of 1987, decided on 10‑6‑1987 it was observed at page 10 of the judgment that at the bail stage. a deep scrutiny of evidence, ocular or circumstantial, is neither possible nor desirable. The close scrutiny of evidence is only possible and desirable after the statement of witnesses are recorded at trial and they are subjected to cross‑examination. At the bail stage if there is a material which, if remains unrebutted, prima facie, connects the accused person with an offence punishable with death or transportation for life, he must be refused the concession of bail. In the case before us the prosecution version so far remains unrebutted. Therefore, it cannot be said or argued that there do not appear any reasonable grounds for believing that the accused is not guilty of an offence punishable with death or transportation for life.

15. Another factor which also disentitles the accused‑appellant from the concession of bail is that the date, the time of occurrence, the place of occurrence and the presence of deceased and eye‑witnesses over the spot is even admitted by the accused‑appellant, Muhammad Javed, when his statement was recorded on 9‑2‑2000 under section 242, Cr.P.C. However, he has pleaded that Nadeem Ahmed Khokhar and his father; Nazeer Ahmed Khokhar, scuffled with .each other as a result of which due to heart attack the deceased fell on the ground and was taken to home by his son, Nadeem Ahmed Khokhar. This shows that main part of the story of the prosecution is also admitted by the accused‑appellant. The accused‑appellant in his statement under section 242, Cr.P.C. has pleaded a counter‑version which has not been substantiated even prima facie by any evidence. Both the versions at the conclusion of the trial are to be taken into consideration in a juxtaposition by the trial Court and to draw ultimate conclusion as to whether the version stated by the prosecution is probable and truthful or the version taken by the accused in his statement under section 242, Cr.P.C. is correct.

16. The authorities referred to by the learned counsel for the appellant have nothing common with the facts of the case in hand. In a case titled Ch. Muhammad Bashir v. Ch. Muhammad Zaman and 2 others (PLD 1985 SC (AJ&K) 48) the Shariat Court granted bail to accused‑respondents on the basis of plea of alibi which was produced in the shape of affidavits of three Senior Advocates and one clerk of District and Sessions Court. Thus, it was observed that there is reasonable possibility of defence of alibi to be true. Therefore, the bail granted was not cancelled. In another case, referred to by the learned counsel for the appellant, titled Muhammad Abbas and another v. The State PLD 1988 SC (AJ&K) 14 Muhammad Ismail, one of the accused‑appellants, was released on bail on the basis of affidavits sworn in by Tassadaq Hussain and Lt. Jannat Hussain, wherein they disowned their statements under section 161, Cr.P.C. and the same had not been taken into consideration by the learned Judge in the Shariat Court and the .12 bore gun recovered from the person of Muhammad Ismail, accused‑appellant and the result of Ballistic Expert had not been placed on record even after the lapse of many months. Therefore, it was observed that the presumption would be that had the result been available, it would have gone against the prosecution and supported the case of defence as put forth.

17. In view of the above discussion, the discretion exercised by the District Criminal Court as well as the Shariat Court by declining the bail to accused‑appellant, Muhammad Javed, does not seem to be either perverse or against the settled principles relating to bail matters, therefore, we decline to interfere with it. However, the accused appellant would be at liberty to renew his prayer for bail after the evidence of eye witnesses has been recorded and preferably after recording the evidence of doctors who prepared both the post‑mortem reports.

18. Any of our observations made in the judgment are purely for the purpose of bail and the same should not prejudice the case of one party or the other. Thus, those are not to be taken into consideration at the time of conclusion of the trial.

19. In the circumstances indicated above, the appeal having no merits in it stands dismissed. N.H.Q./201/SC(AJ&K) Bail refused.