2014 PLP 1771 (YLR)

MUHAMMAD AZAM KHAN, C.J.

A case under section 302, A.P.C. was registered at Police Station Dudyal, on 5th May, 2011 on the report made by Muhammad Nawaz son of Shah Sawar Khan. He alleged that he is resident of Dhoke Kalyal, Kandore. In the morning at 7-00 a.m. one Atif Hussain son of Karamat Hussain, resident of Mohra Sumbal Khadimabad, came to him and informed that Ameer Qabal son of Sarwar Khan resident of Dhoke Kalyal, at 6-30 a.m. rang him and informed that he has murdered his mother Rehmat Jan, at 6 a.m. who was of advance age and ill. He along with Atif Hussain called the village inhabitants. They along with Liaqat Ali, Muhammad Bostan, Gulzar and Atif Hussain went to the house of Ameer Qabal, who was standing at the door. He said that he has done what he wanted to do. They went into the room and saw the dead body of Rehmat Jan soaked in blood. Ameer Qabal had murdered her with the hatchet blows. They informed Muhammad Khalil son of deceased and her other relatives. The police was also informed on telephone.

2. After being arrested, the appellant moved an application for grant of bail in the Additional District Criminal Court, Dudyal. The bail application was dismissed on 20th December, 2011. Dissatisfied from the judgment of Additional District Criminal Court, the appellant filed a revision petition in the Shariat Court of Azad Jammu and Kashmir. A learned Single Judge in the Shariat Court dismissed the revision petition vide impugned judgment on 1st March, 2012. Hence this appeal.

3. Mr. Muhammad Reaz Alam, the learned counsel for the appellant, argued that the judgments of the Shariat Court and the Court below are against the law and not maintainable. He argued that there is no direct evidence against the appellant. The whole case is based on circumstantial evidence which is not reliable. Every link of the chain of events is not inter-connected to implicate the accused-appellant with the offence. He contended that the prosecution has relied upon the extra-judicial confession made by the accused before Liaqat Ali and Muhammad Nawaz, witnesses. Both these witnesses appeared in the Court. Their statements were recorded and from perusal of their statements, the accused-appellant is not fully connected with the crime. The learned counsel further contended that from the perusal of whole record, there is not sufficient evidence to connect the accused with the crime. He submitted that the accused-appellant is the son of deceased and under sections 306 and 308, A.P.C. when the accused inherits the deceased, the sentence of Qisas cannot be imposed upon the accused. When the case is not one of Qisas, the accused is entitled to concession of bail. He lastly argued that in the light of provisions of section 308, A.P.C. and after perusal of whole record, the case against the appellant is one of further inquiry. He is entitled to the concession of bail.

4. While controverting the arguments, Mr. Bostan Chaudhry, Advocate, the learned counsel for the complainant/ respondent, argued that the judgment of the Shariat Court as well as the Court below is perfectly legal, in accordance with law and record of the case. Both the Courts have recorded the concurrent findings based on record declaring therein that the appellant is connected with the crime. He is not entitled to the concession of bail. He contended that at the time of grant of bail, a bird eye-view of the evidence is to be taken. From tentative assessment of the evidence, the appellant is connected with the crime. Deeper appreciation of evidence is not permissible at the stage of bail. The prosecution case is based on extra-judicial confession, judicial confession of the accused and other incriminating material. This Court normally does not interfere in the concurrent findings recorded by Courts below. The appeal merits dismissal. He relied upon a case titled Suleman Khan v. Buner Khan and another 2003 YLR 181.

5. Mr. Muzaffar Ali Zafar, the learned Additional Advocate-General, while adopting the arguments of learned counsel for the complainant-respondent, contended that the prosecution has collected sufficient material to connect the appellant with the crime. From the tentative assessment of the evidence and the material collected by the prosecution, the accused is fully connected with the crime. He is not entitled to the concession of bail. The concurrent findings recorded by two Courts below cannot be disturbed by this Court.

6. We have heard the learned counsel for the parties and perused the record. The accused-appellant has murdered his ailing mother, who was a lady of advance age. According to report made by the Muhammad Nawaz, he was informed by Atif Hussain son of Karamat Hussain resident of village Sumbal, when he was at his home that Ameer Qabal himself informed him on telephone at 6-30 a.m., while summoning him at his home that he has murdered his ailing mother at 6 a.m., who was of advance age. On this information, the complainant informed the inhabitants of locality and he along with Liaqat Ali, Muhammad Bostan, Gulzar and Atif Hussain reached the place of occurrence, where the appellant, Ameer Qabal, was standing at the door of the house. On query he said that he has done what he wanted to do. They went inside the house and found the dead body of his mother. This extra-judicial confession is made before four person. The police has recorded the statements of these witnesses under section 161, Cr.P.C. Muhammad Khalil, the brother of appellant, who is Chief Economist in Planning and Development Department, Muzaffarabad, moved an application to S.D.M. Dudyal that his mother has been murdered by his brother, Ameer Qabal, therefore, he does not want to get the post-mortem of dead body of his mother conducted. The dead body was buried without post-mortem. In the injury form prepared by the police and inquest report, six sharp-edged weapon injuries are shown on the head of the dead body.

7. On the pointation of accused the police recovered blood-stained hatchet from the house. Blood-stained clay was also recovered from the place of occurrence. The police prepared site plan and later on another site plan was prepared by the revenue department which corroborates the prosecution story. The blood-stained clay, clothes of deceased and hatchet were sent to Chemical Examiner. According to report of Chemical Examiner all the three articles were stained with human blood. During the investigation, the statement of accused-appellant under section 164, Cr.P.C. was also got recorded by Sub-Divisional Magistrate, Dudyal. He admitted in the statement before the Magistrate that he has murdered his mother. During the trial, the statements of two witnesses, Muhammad Nawaz and Liaqat Ali were recorded by the trial Court. Both the witnesses in their Court statements stated that Ameer Qabal in their presence has admitted that he has murdered his mother. A perusal of all the evidence collected by the prosecution shows that the prosecution has collected sufficient evidence wherefrom the accused-appellant appears to be connected with the crime. It is now well-settled law that at the bail stage only a bird eye-view of evidence is taken into consideration. Deeper appreciation of evidence is not permissible. Of course if it appears to the Court at any stage of trial that there are no reasonable grounds for believing that the accused had committed a non-bailable offence and there are sufficient grounds for further inquiry into his guilt, the accused may be released on bail. In every criminal case some scope for further inquiry into the guilt of accused exists, but on that consideration alone it cannot be claimed by the accused as a matter of right that he is entitled to bail. For bringing the case in the ambit of further inquiry, there must be some evidence, which on the tentative assessment, may create doubt with respect to involvement of accused in the crime. What is important is that the Court while granting bail has to satisfy itself whether reasonable grounds exist or not against the accused for believing that he is connected with the offence alleged against him. Each case has its own foundation of facts, therefore, it is not possible to put each and every case in the cradle of further inquiry to provide relief to accused by releasing on bail.

8. We have also considered the argument of the learned counsel for the appellant that the appellant is a legal heir of deceased, therefore, under section 306, A.P.C., the sentence of Qisas cannot be imposed upon him and in the light of provisions of section 308, A.P.C., only the sentence of Diyyat can be imposed upon him. Section 306, A.P.C. postulates that when any Wali of the victim is a direct descendant, how lowsoever, of the offender the sentence of Qisas shall not be imposed. Subsection (1) of section 308, A.P.C. postulates that where an offender guilty of Qatl-e-amd is not liable to Qisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyyat. There are three provisos to this subsection, but subsection (2) of section 308 is a contrary provision to subsection (1) of section 308, A.P.C. Subsection (2) of section 308 is as under:

"Notwithstanding anything contained in subsection (1), the Court having regard to the facts and circumstances of the case in addition to the facts and circumstances of the case in addition to the punishment of Diyyat, may punish the offender with imprisonment of either description for a term which may extend to twenty five years as tazir." A perusal of above referred provision of law reveals that apart from different eventualities laid down in subsection (1) of section 308, vast powers have been con-ferred upon the Court under section 308(2) that having regard to facts and circumstances of the case, in addition to punishment of Diyyat, the Court may punish the offender with imprisonment of either description for a term which may extend to 25 years as tazir. When in particular circumstances of a case, the sentence of tazir up to 25 years can be imposed upon an accused, then he is not entitled for concession of bail having regard to circumstances of case because the case falls in prohibitory clause.

9. From the tentative assessment of evidence collected by the prosecution; the extra-judicial confession of the accused-appellant before the four witnesses, the statement of accused recorded under section 164, Cr.P.C. and particularly the statements of Muhammad Nawaz and Liaqat Ali, witnesses, recorded in the Court, we have come to the conclusion that apparently the accused-appellant is connected with the crime. Both the lower Courts have drawn correct conclusions from the tentative assessment of evidence. Concurrent findings recorded by two Courts normally are immune from interference by this Court. This Court normally does not interfere in the discretion exercised by the Courts in bail matters unless the same is capricious and against the settled rules governing the bail matters.

10. The result of above discussion is that finding no force in this appeal it is hereby dismissed. HBT/36/SC(AJ&K) Appeal dismissed.