1983 P Cr (PLP)

ABDUL MAJEED MALLICK, J.

This appeal arises out of the judgment of the -Shariat Court, dated 18-10-1982, whereby the learned Single Judge declined bail to the appellant.

2. The incident took place in village Joona in Survey No. 246 the subject of dispute between the parties, at 2 p.m. on 13th July, 1982. Sain and other accused persons claimed the land in their own title and accordingly placed stones for building a house over there. The complainant party resisted this act of the accused and called a meeting of the Punchait to settle the dispute. The Punchait gave its verdict in favour of complainant patty (Muhammad Amin) and directed Sain to remove the material forthwith. In compliance with the decision of Punchait Sain and Muhammad Ramzan

accused engaged in removal of the material, when they were summoned by their ladies in the house. But soon thereafter the accused party, nine in number, arrived on the scene armed with various weapons and attacked the complainant party. Various persons from the complainant party received different injuries from the accused. Muhammad Rehman, accused, was attri buted the role of firing with '12 bore gun and causing injuries to Muhammad Khaliq, Muhammad Tufail and Mst. Sarwar Begum. The injuries were inflicted on chest, abdomen and thigh.

3. The other accused persons were allowed bail by the District Criminal Court, Kotli, except Abdul Qayyum and the appellant. Abdul Qayyum was also allowed bail by a learned Judge of the Shariat Court.

4. The learned counsel for the appellant raised the following points for grant of bail (i) that under section 15 of Islamic Penal Laws Act an offence of hurt is punishable by Qisas, Diyyat and Hakumat-e-Adal. The sentence of Qisas not being executable is to be substituted by either of the other sentences. The restrictions contained under section 499, Cr. P. C. are not applicable to such punishments; (ii) that accused party has also lodged a complaint in the Court of A. D. M. as such it is a case of counter version ; and (iii) that the ownership and possession of the land, the place of incident, is disputed between the parties. It is, therefore, a case of further inquiry. Reliance was placed on Barkat Ali and 12 others v. The State 1979 P Cr. L J Note 12 at p. 9, Shafqat All v. The State 1979 P Cr. L J 174, M. Ashrafuddin v. The State 1977 P Cr. L J 530, Fazal Hussain and 3 others v. The State 1976 S C M R 124, Mitho v. The State 1978 S C M R 231, Khalil-ur-Rehman v. The State 1979, S C M R 168, Muhammad Sharif v. The State 1976 P Cr. L J 1055 and Nisar Ahmad v. The State Y L D 1971 S C 174.

5. It is settled principle of Criminal Jurisprudence that each case, including the bail matters, is decided in the light of its own facts. Keeping in view this principle it is quite clear that the authorities cited at the bar by the learned counsel of defence are distinguishable. Their facts are not identical to the instant case. In the aforesaid cases the accused either received injuries in the incident and lodged counter-complaint or were not ascribed primary role of infliction of injuries to the complainant party. The grounds of bail raised in the aforesaid cases are, therefore; not available in the instant case.

6. Let it be made clear that criminal matters including bail are decided by the Courts under codified law. The Islamic Penal Laws Act and Hudood ordinances are silent in respect of bail in offences falling within the ambit of those laws. It is expressly provided therein that any matter for whit' no express provision has been made in the Islamic Penal Laws Act and the Ordinances, shall be dealt with under the Code of Criminal Procedure. It A is undisputed that bail matter relating to offences under the Islamic Penal Laws Act and Hudood Ordinances are to be settled under the Code. An identical proposition was settled by this Court in Matloob Hussain Shah'x case, decided on 15th of December, 1982. Relevant part of the observation is reproduced below :- "On the Ist Point, referred to above, the learned Advocate-General had placed reliance on different books of Islamic Jurisprudence of various authors enlisting the view that bail cannot .be granted to a person charged with an offence carrying the sentence of `Qisas' or `Hudood'. All this exercise by the learned Advocate-General is premature and no deep thought is required to hold so. The Courts are only governed and guided by the codified laws and unless the whole conception of bails embodied in the Islamic Jurisprudence is not codified, we cannot legally go by them. Till then we have only to get guidance from the Islamic Jurisprudence relating to bails only to the extent of its being compatible with the codified law. If codified law is in departure to the Islamic Law of Bails, naturally the Courts have to follow the codified law even if morally convinced that the Islamic Law is to be preferred to the codified law we would however welcome a complete switch over of all the laws in strict conformity with the tenets of Holy Qur'an and Sunnah." This Court and the High Court of Azad Jammu & Kashmir is strictly adhered to the aforesaid principle by this time. The first objection is, therefore, not sustainable.

7. Apart from what we have already held the allegation against the accused as reflected from the F. I. R. and report under section 173, Cr. P. C. is one of firing for more than once with '12 bore gun resulting in injuries on three persons on vital parts of their bodies like chest, penis, abdomen and face. The prosecution has fixed the liability against the appellant, among others, under section 307, Penal Code. An offence of attempt to murder resulting in causing of hurt is punishable with imprisonment for life. In non-bailable offences the discretion given to Court to grant bail is strictly restricted, as cases punishable with death or imprisonment for life, are excluded from the scope of bail. Nevertheless, subsection (2) of the section provides exception to the enacting part of the section.

8. The other two objections actually constitute single objection and these are dealt as such. It is well-settled that when there are counter-cases or counter-versions both the versions, even in bail matters, are put in juxta position in order to ascertain or test the correctness of the liability. In this e view of the rule Courts have been liberal to allow bail even in cases of heinous offences. But the fact remains that the onus is always on the person who, invokes the rule for his benefit.

9. We were told that Sain accused who is head of the accused party has also lodged a complaint before the A. D. M., Kotli, and processes have also been issued. This .was even brought to the notice of the learned Single Judge of the Shariat Court; the learned Judge of the Shariat Court was not persuaded to give weight to the complaint. We have considered the substance of the complaint along with the material collected in this case. In our well-considered opinion mere filing of counter-case or raising of counter version is not sufficient to ask for bail on such ground. In other words, a counter-case or counter-version should not be based on conjectures, surmises or probabilities. It must rest on concrete substance, so as to lead to a plausible inference. This s so because human mind is found best at concoctions and creation of artificial stories. Precisely speaking a counter case or counter-version, must satisfy the judicial conscience of the Court, in its credibility. We are not in agreement that delay in filing the complaint per se is a ground for rejection of bail. But, in our view, in absence of sufficient material, mere filing of complaint is not sufficient to allow bail.

10. The exception to the rule contained in the operative part of the section contemplates concession of bail in non-bailable offences when it appears that there are no reasonable grounds for believing that accused has committed non-bailable offence, but there are sufficient grounds for further inquiry. In the instant case the learned counsel for the defence has not been able to persuade us to believe that this case suffers from the lack of sufficient grounds connecting the accused with the liability. Likewise, we are not shown any ground necessitating further inquiry to link the appellant with the offence. Mere fact that land, where the incident took place, was disputed, is not by itself sufficient to bring the case within the purview of the exception. As a result of the aforesaid conclusion the appeal is rejected. Never theless, the trial Court is allowed to reconsider the question of bail of the appellant after recording the evidence of some of the eye-witnesses. Appeal rejected.