1999 PLP 1908 (YLR)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal is directed against an order passed by the Shariat Court of Azad Jammu and Kashmir on 16‑11‑1998, whereby Jehangir convict‑respondent No. 1, who having been found guilty by the District Criminal Court, Kotli and sentenced to life imprisonment in a murder case was released on bail and the order of his sentence was suspended. The bail of the accused/ respondent was cancelled by this Court through our short order dated 3‑5‑1999. The detailed judgment is as under.

2. The precise facts, giving rise to the present appeal, are that on 8‑7‑1993, at about 5 p.m., when Abdul Rehman, the brother of complainant Abdul Khaliq, went to his house at Sarsawah, Tehsil Kotli, the complainant told him that the accused persons namely Jehangir, Alamgir, Muhammad Saleem alias Manazar and Maqbool Jan during the day time opened firing towards his house, abused him and threatened to commit murder. When Abdul Rehman became aware of this incident, he for the purpose of lodging report went towards Sarsawah Police Post. Abdul Khaliq reminded his brother Abdul Rehman that it was apprehended that the accused party might kill him, therefore, he should change the normal route of going towards the Police Post. However, the complainant followed his brother and both of them were going to the Police Post. When Abdul Rehman and complainant reached a place known as 'Mera' at about 5‑30 p.m. the accused party raised 'Lalkaras' and Abdul Rehman on raising of 'Lalkaras' by the accused party, saw that accused persons Jehangir and Alamgir were armed with .12 bore guns. Out of the accused persons Jehangir convict/respondent No. I with his .12 bore gun fired upon Abdul Rehman which hit him on his forehead and the face. The victim in consequence of the injuries fell down and succumbed to the injuries. The other accused person namely Muhammad Saleem alias Manazar pelted stones on Abdul Rehman and Abdul Khaliq. Accused Alamgir also made a fire whereas the other accused Qureshah Begum, Maqbool Jan and Muhammad Riaz had been raising ' Lalkaras'. On the hue and cry of the complainant, Wazir, son of Dewan Ali, and Khurshid, son of Karim Khan, were attracted at the place of occurrence, who saw the accused persons running away after the commission of alleged murder. The motive behind the occurrence is stated to be a dispute of land pending in a Civil Court between the deceased and the accused. On this report lodged at Police Post Sarsawah, a case was registered against the accused persons vide F.I.R. No.105 of 1993 for commission of offences under section 5, Islamic Penal Laws (Enforcement Act) read with sections 147, 148, 149 and 109, A.P.C., at Police Station Kotli. After the completion of investigation a challan was. presented against the accused persons in the District Criminal Court, Kotli and at the conclusion of the trial respondent No. l Jehangir was found guilty for commission of offence of murder of Abdul Rehman, deceased, and was awarded the sentence of life imprisonment whereas the other accused namely Alamgir, Muhammad Saleem, Qureshah Begum, Maqbool Jan, Muhammad Riaz, Farman Ali and Muhammad Sarwar were acquitted of the charges levelled against them by extending them the benefit of doubt.

3. Feeling aggrieved by the conviction order recorded against the convict‑respondent Jehangir he filed an appeal before the Shariat Court of Azad Jammu and Kashmir and pending disposal of appeal moved an application under section 426, Cr.P.C. for suspension of sentence and for his release on bail.

4. A learned Judge in the Shariat Court vide the order impugned dated 16‑11‑1998, by suspending the sentence awarded to convict‑respondent allowed him the concession of bail. It is the aforesaid order of Shariat Court which is the subject of present appeal.

5. Arguing the case on behalf of Abdul Khaliq, complainant‑appellant, Sardar Rafique Mahmood Khan, the learned counsel, vehemently contended that the Shariat Court acted illegally and without any jurisdiction by suspending the sentence awarded to convict respondent Jehangir. The learned counsel strenuously argued that the trial Court after careful and detailed appraisal of evidence recorded the conviction against the convict respondent and the Shariat Court erred in suspending the sentence and releasing the convict on bail without any justifiable and reasonable ground. The impugned judgment, thus, according to the learned counsel for the appellant, was patently illegal, erroneous and bad in law and as such riot maintainable. The learned counsel contended that the learned Judge in the Shariat Court while making detailed appraisal of evidence committed an illegality by releasing the convict‑respondent on bail against whom the guilt was brought home by the prosecution as the trial Court found him guilty .for the commission of offence of murder of Abdul Rehman deceased. Therefore, according to the learned counsel, the judgment under appeal was not sustainable and the same needed the indulgence by this Court.

6. Controverting the arguments advanced by the learned counsel for the appellant, Syed Mushtaq Hussain Gilani, the learned counsel for respondent No.l, submitted that the Shariat Court committed no error in suspending the conviction order recorded by the trial Court and releasing the convict/respondent on bail. The learned counsel submitted that under subsection (1) of section 426, Cr.P.C. pending an appeal by a convict the Appellate Court is vested with jurisdiction to order that the execution of sentence be suspended or reasons to be recorded by the Appellate Court in writing. Thus, according to the learned counsel for respondent No.l, the Shariat Court had advanced cogent reasons for suspending the order appealed from and releasing the accused on bail. The learned counsel in support of his contentions relied on Abdul Ghaffar v. Anwarul Hassan and others (1978 SCMR 149), Kunwar Imam Din v. Liaqat Ali and another (1978 SCMR 458) and Faqir Muhammad v. Akber and others (PLJ 1979 SC 275).

7. Raja Shiraz Kayani, the learned Advocate‑General, appearing on behalf of State, supported the arguments advanced by Sardar Rafique Mahmood Khan, the learned counsel for the appellant and maintained that the judgment of Shariat Court suffers from serious legal infirmities.

8. After giving our due consideration to the arguments advanced by the learned counsel for the parties and examining the impugned judgment, we are of the opinion that the impugned judgment passed by the Shariat Court suffers from serious illegality and infirmity and as such is not sustainable under law. The Shariat Court was probably persuaded by the fact that the prosecution evidence in the case has not been believed by the trial Court with regard to 7 other accused persons who were acquitted by the trial Court. The Shariat Court should have taken into consideration the fact that the theory of falsus in uno falsus in omnibus (false in one particular false in all) has since long been discarded by the superior Courts. It is a settled law that grain has to be sifted out of the chaff. Similarly it also appears that the Shariat Court was persuaded to suspend the conviction order of the trial Court and release the convict‑respondent on bail for the reason that the recovery of 12 bore gun used in the commission of offence was not recovered on the pointation of the convict‑respondent. It also appears from the reading of the impugned judgment that the Shariat Court was impressed by the fact that the place of occurrence, according to the version of the eye‑witnesses, remains unidentified.

9. It may be pointed out that the factors taken into consideration by the Shariat Court are not relevant while suspending the impugned order of the trial Court under section 426, Cr.P.C. It was enjoined upon the Shariat Court not to embark upon the detailed appraisal of evidence brought on record by the prosecution. On the one hand the learned Judge in the Shariat Court observed that at the stage of suspending the impugned order and releasing the convict‑respondent on bail the detailed appreciation and scrutiny of the evidence is neither permissible nor desirable but at the same time he dived deep into elaborate appraisal of evidence which is not the requirement of law. The trial Court while recording the conviction of convict- respondent relied on the ocular account of the eye‑witnesses duly supported by the medical evidence. According to the trial Court all the eye‑witnesses named in the F.I.R. fully supported the prosecution version and the same stands corroborated by the medical evidence and the evidence of Ballistic Expert that the deceased was shot dead by a .12 bore gunshot made by the convict‑respondent. At the stage of bail by exercising the powers under section 426, Cr.P.C. the Appellate Court has no more powers than the powers vested in a Court under section 497, Cr.P.C. The Shariat Court was also impressed by the fact that the witnesses were inter‑related and interested witnesses. This finding too could be given only when the due appraisal of evidence is to be made at the stage of hearing v the appeal and not at the stage of suspension of sentence recorded by the trial Court. The related witnesses cannot be disbelieved as interested witnesses unless they have a motive to falsely implicate the accused. In the instant case the trial Court after thorough scrutiny and appraisal of evidence on record reached the conclusion that the convict‑respondent is responsible for commission of murder of Abdul Rehman, deceased, and thus, awarded him the sentence of life imprisonment which brings the case within the purview oaf proviso (1) of section 497, Cr.P.C. which prohibits explicitly the release of accused on bail. Thus the convict‑respondent could not have been released on bail. We may also point out that the impugned judgment is totally perverse and violative of the settled principles relating to the bail matters. The Shariat Court by dilating upon the appraisal of evidence has virtually decided the appear which practice is in utter disregard of law amounting to non‑application of judicial mind i which must be discouraged and deprecated.

10. The Shariat Court lost sight of the fact that after conviction in criminal jurisdiction initial presumption is against innocence of convict. Initial presumption of innocence in favour of accused is substantially dislodged upon his conviction by a competent Court. Person convicted of a non‑bailable offence by a competent Court would not be entitled to be enlarged on bail normally by the Appellate Court except in circumstances mentioned in section 426, Cr.P.C. Our aforesaid view stands fortified by the cases reported as Muhammad Latif and 3 others v. The State (1984 PCr.LJ 1503) and Muhammad Murad v. The State (1986 PCr.LJ 64).

11. The cases 'cited and relied upon by the Shariat Court and the learned counsel for respondent No. 1, in our view, are distinguishable, in a case reported as Abdul Ghaffar v. Anwarul Hassan and others (1978 SCMR 149) the accused‑respondent was released on bail by the High Court and order of conviction of Sessions Judge was suspended on the ground that the evidence against the accused‑respondent was solely circumstantial which was of a weak nature. So, after tentative appraisal of evidence the High Court had observed in that case that his conviction order was suffering from a serious legal infirmity. In this view of the matter the Supreme Court of Pakistan did not interfere in the order of the suspension of sentence passed by the High Court.

12. In the case reported as Faqir Muhammad v. Akber and others (PLJ 1979 SC 275) the facts were totally different. The main reason given by the High Court in that case was that the plea of self‑defence in that case needed examination in view of the fairly large number of injuries sustained by the side of the accused which had not been explained by the prosecution. So, the Supreme Court of Pakistan at the time of hearing the petition observed that the High Court does not appear to have exercised its discretion improperly in the facts and circumstances of the cases.

13. It was for the reasons listed above that the impugned order of the Shariat Court dated 16‑11‑1998 was cancelled by this Court vide order dated 3‑5‑1999. N.H.Q./409/SC(AJ&K) Bail cancelled.