' MUHAMMAD YUNUS SURAKHVI, C.J.--- This appeal, as of right, has been preferred against the judgment passed by the Shariat Court on 16-10-2003, whereby the revision petition filed by the accused-appellant, Muhammad Sagheer, for his release on bail against the judgment of the District Court of Criminal jurisdiction, Mirpur, dated 4-7-2002, was dismissed.
2. The facts leading up to the present controversy between the parties, precisely stated, are that Muhammad Yaqoob, complainant, respondent No,2 herein, lodged a report at Police Station, Islamgarh on 2-8-2000 at 6-30 p.m. That he was informed at 6-00 p.m. On the same day that his cousin, Muhammad Waseem son of Rehmat Khan has been murdered by Muhammad Sagheer son of Abdul Khaliq by .30 bore pistol fire at his head. It was alleged in the F.I.R. That the accused- appellant had inimical relations with the deceased for the reason that the accused had apprehension in his mind that Muhammad Waseem has developed illicit relations with the sister- in-law of the accused-appellant. Therefore, he called Waseem on telephone and while going along with him in his car accompanied by. Muhammad Najeeb, Liaqat Ali and Muhammad Razzaq alias Jeki, he killed the deceased by pistol shot.
3. On this report, a case for allegedly committing offence under section 302, A.P.C., was registered against the appellant and after conclusion of the investigation, the challan was submitted in the District Criminal Court, Mirpur, where the accused appellant pleaded not guilty, whereupon the prosecution was ordered to produce its witnesses. The prosecution, in support of its case, so far examined P.Ws. Muhammad Yaqoob, complainant, Muhammad Najeeb, Liaqat Ali, Muhammad Razzaq, Constable and Altaf Hussain. In the meantime, the accused-appellant applied for his release on bail before the trial Court but the same was declined vide its judgment, dated 4-7-2002.
On being aggrieved by the judgment of the District Criminal Court, Mirpur, the accused-appellant filed a revision petition before the Shariat Court which was also dismissed by the Shariat Court vide its judgment, dated 16-10-2003. It is the aforesaid judgment of the Shariat Court which is the subject-matter of present appeal before this Court.
4. The Shariat Court in its impugned judgment has dismissed the revision petition filed by the appellant and declined his bail on the ground that P.W. Muhammad Yaqoob, complainant, has supported the F.I.R. During his statement before the Court and his statement has been corroborated by the testimony of the eye-witnesses, P.Ws. Muhammad Najeeb and Liaqat Ali. It was also observed by the Shariat Court that reasonable grounds do exist for believing that the accused-appellant is connected with the offence charged and as such is not entitled to be extended the benefit of bail at this stage.
5. Arguing the case on behalf of the accused-appellant, it was vehemently contended by Mr. Muhammad Riaz Alam, the learned counsel for the appellant, that the case of the prosecution is full of doubts and it has failed to connect the accused with the commission of offence alleged. The learned counsel for the accused-appellant contended that in the instant case apart from the complainait, Muhammad Najeeb, Liaqat Ali and Muhammad Razzaq have been cited as eye- witnesses. Both the eye-witnesses, Liaqat Ali and Muhammad Razzaq, remained in the custody of police and they were locked at the police station and remained under arrest of the police before getting their statement recorded in the trial Court. After having been arrested by the police physically, they were made eye-witnesses of the prosecution and their confessional statements under section 164, Cr.P.C., were got recorded by the police. The learned counsel contended that if Liaqat Ali and Muhammad Razzaq were eye-witnesses of the occurrence, there seems to be no plausible reason for arresting them and putting them in police lockup and to get their statements recorded under coercion, as such, their statements cannot be relied upon. The learned counsel contended that the prosecution has suppressed the material facts which go to the root of the case of the prosecution, such as the fire-arm injury on the arm of the accused-appellant by the .30 bore pistol was also suppressed by the prosecution and the occurrence did not take place in the manner as it has been alleged by the prosecution. In fact the occurrence took place all of a sudden and it was only one fire of the pistol shot which hit the accused-appellant as well as the deceased, when both of them were scuffling. With each other the fire went off from the pistol of the accused and hit both the accused-appellant as well as Muhammad Waseem, the victim of offence. The learned counsel contended that the case of the prosecution being doubtful and not having taken place in the manner as alleged by the prosecution, it falls within the ambit of further inquiry and probe as to how the quarrel between the deceased and the accused-appellant started. Mr. Muhammad Riaz Alam also pointed out that the clothes of the accused-appellant were also blood stained but neither they were taken in possession by the police nor they were sent to Chemical Examiner for examination and report.
6. Controverting the arguments raised by the learned counsel for the accused-appellant, Ch. Muhammad Azam Khan, the learned counsel for the complainant, vehemently urged that a deeper appreciation of evidence of the prosecution cannot be made at the stage of bail for the reason that if the same is done, then there is nothing left for the trial Court to decide. The learned counsel contended that it was not only one fire which hit both the accused-appellant as well as the victim as the gun powder in both the medical reports of the accused-appellant as well as the deceased, appears to have been visible which is not possible in case of one fire. His contention precisely is that at least two bullets were fired and one of them hit the accused but so far as the bullet of .30 bore pistol which hit the deceased in the car was the one which was fired by the accused and it was taken into possession by the police. The learned counsel contended that the evidence of the eye-witnesses cannot be brushed aside for the simple reason that they have stated in their statements that they were kept under the custody of police and due to coercion their statements were procured and thereafter confessional statements were got recorded under section 164, Cr.P.C.
The learned counsel emphasized that when the said witnesses appeared in the Court they were cross-examined by the learned counsel for the defence for a considerable length but nothing favorable to the defence came out of the mouth of the witnesses supporting the case of the defence. The learned counsel for the complainant, Ch. Muhammad Azam Khan, submitted that the Shariat Court has committed no illegality by declining the concession of bail to the accused- appellant as the appellant is duly named in the F.I.R. Which was promptly lodged and a specific role has been attributed to him that he caused the death of the deceased with afire of pistol. The learned counsel also emphasized that at the present moment there is only one version of the prosecution which remains unrebutted from the defence side and unless and until the same is rebutted by the defence, it has got to be believed. In support of his contention, the learned counsel cited a case of this Court titled Shakeel Ahmad v. State (Criminal Appeal No,15 of 1987 decided on 9-6-1987) wherein the fundamental principle has been laid down by this Court that at the stage of bail if the prosecution version, as it is, remains unrebutted, it has got to be believed as such.
However, at the stage of conclusion of the trial the trial Court is vested with the jurisdiction to sift the grains out of the chaff but at the stage of bail, such an exercise is not desirable nor the same is in consonance with the settled principle of bail matters.
' The same principle has been reiterated in a case titled Mst. Maqsood Begum v. Sarfraz alias Paloo 2004 SCR 9.
7. After giving our due consideration to the arguments advanced by the learned counsel for the parties and careful perusal of the record, it may be stated that the prosecution in our view, has not put up its case in a way as it should have been. After going through the entire record as well as the police record, we are of the opinion that the prosecution has suppressed the material facts which go to the very root of the case and if A the same remain unexplained, its benefit naturally even at the bail stage goes to the accused-appellant. In other words, from the said material, if some doubt arises as to how the occurrence took place, the doubt even at the stage of bail goes in favor of the accused.
8. Now we may point out some of the important and material factors which have been suppressed and withheld by the prosecution and which go to the very root of the case of prosecution:---
(i) the accused, Muhammad Sagheer, has also been injured at 6 p.m. On the day of occurrence as admitted by the prosecution by the fire-arm on his arm which fact has been totally suppressed by the prosecution;
(ii) the learned counsel for the prosecution has strenuously argued that it cannot be one and the same fire which might have hit both the accused and the deceased as the gun-powder is present on the bodies of both the deceased and the accused. Thus, according to the learned counsel for the prosecution, it is the second fire which hit the accused-appellant but where it was hit to him is not known;
(iii) the case of prosecution is that the accused was hit by the one and the same fire which hit the accused as well as the deceased in the car in which the deceased, the accused and the eye-witnesses were travelling; and
(iv) after examining the police record and the investigation initiated by the Investigating Officer, the story put forward by him is that Muhammad Sagheer, accused, rang Wasim, deceased, to arrange some money for purchasing some Alcoholic drinks, upon which he arranged Rs,2,000 and both the deceased and accused and two witnesses, Liaqat Ali and Muhammad Razzaq alias Jeki went to Mirpur. From Mirpur they purchased Alcoholic drinks (4 bottles) and all of them took Alcoholic drinks during their travelling back towards Islamgarh.
9. During the journey an argument started between them that the deceased had developed some illicit relations with the sister-in-law of the accused who was living near the Dam side, upon which the deceased asked him to confront him with the persons who say so. It is also in the police record that when the matter was inquired into in presence of persons who talked about the illicit relations of deceased with the sister-in-law of accused, the person who told the accused about the illicit relations was proved to be a junk of lies and its narrator a pathological liar.
10. These all factors, which have been narrated above, have been totally suppressed by the prosecution. Thereafter the witnesses went to their houses and after some time again discussion started between the deceased and the accused. On this, the accused flared up, most probably under the influence of intoxication, who was having a pistol, which was already loaded, took the same in his hand and during the scuffle, the pistol went off by injuring the arm of the accused as well as the face and cerebella region of the brain of the deceased. The Investigating Officer has categorically mentioned not only once but many a time in the police record that it was only the one bullet which was fired by the accused and it was that bullet which hit the accused as well as the deceased. The recovery of only one bullet was made by the police and sent to the Forensic Expert for his examination. All these circumstances show that the occurrence did not take place in the manner as it is alleged by the prosecution. The prosecution has so far failed to explain the fire- arm injury on the person of accused which is highly fatal for the prosecution if the same goes unexplained.
' In a case reported as Muhammad Yunus v. The State 1998 PCr.LJ 154 it was observed by this Court as follows:--- "So far as the appeal filed by Muhammad Yunus, accused appellant is concerned, we are of the opinion that in view of the fact that he has also received as many as six injuries, some of them are stated to have been caused by pellets, he deserves the concession of bail."
' It was further observed at page 199 of the aforesaid authority that prima facie members from both rival factions sustained injuries with blunt weapons as well as with fire-arms and the fact that there is no explanation in the record as to how Muhammad Yunus, Muhammad Akbar and Muhammad Aziz, accused, sustained injuries, it cannot be said even tentatively as to which of the two versions is more plausible.
' In another case titled Muhammad Aziz and 20 others v. State 1974 PCr.LJ 130 it was observed that the accused received 8 injuries, some of which are grievous. The prosecution stated nothing about such injuries and suppressed the material facts. The evidence of such witnesses was held to be not reliable. It was further observed that in order to believe a witness, the witness must come to the Court with clean hands and if he is found to have suppressed the material fact which goes in favor of the accused persons, his evidence must be rejected and if it is doubtful as to which of them attacked first, the benefit should go to the accused persons.
' In another case reported as Javed v. The State 1994 SCR 68 it was observed that no satisfactory explanation was furnished by the prosecution as to how the injuries caused on the accused which were described by the doctor to have been caused with sharp weapon. Bail was therefore granted.
11. The Investigating Officer, who initially conducted the investigation, stated in the police record that the accused rang the deceased on telephone and asked him to bring some money for purchasing alcoholic drinks. Both the accused and the deceased as well as Liaqat Ali and Muhammad Razzaq, alias Jeki, went to Mirpur and they purchased four bottles of alcoholic drinks.
All of them took the intoxicant and finished one bottle and when they were coming back from Mirpur to Islamgarh, some arguments started between the accused and the deceased with regard to his illicit relations with the sister-in-law of the accused. The deceased told the accused that the persons who told him, those might be confronted with him. On query the persons who told about the illicit relations, proved false. The accused and the deceased as well as two witnesses went on towards their destination and in the way two eye-witnesses got themselves dropped near their houses. Again thereafter an altercation started between the accused and the deceased and it is the case of the prosecution that the accused hit the deceased with .30-bore pistol which caused injury on his face and cerebella region of brain and he died instantaneously but all the above stated factors have been suppressed by the prosecution and the prosecution story has been built up in a different manner. The contention of the learned counsel for the accused is correct to the extent that there is a blackening on the wound of the deceased as well as of the accused. The distance between the victim and the accused was 1 to 2 feet but so far as the gun powder is concerned, it has not been stated by the doctor that it was found present on the body of the deceased and the accused, therefore, in our considered view, whether it was only one fire which hit the deceased as well as the accused or two fires, and wherefrom second fire was made, is a question which requires further probe. The story stated by the Investigating Officer, prima facie, shows that there was no premeditation on the part of the accused to kill the deceased. Thus we are of the opinion that the case of the accused-appellant falls within the purview of further inquiry and he is entitled to be released on bail. It may also be stated that in the instant case the accused is behind the bars for the last about three and a half years and the trial is not likely to be concluded within a near future.
' In the light of what has been stated above, we accept the appeal, set aside the impugned judgment passed by the Shariat Court on 16-10-2003 and that of the trial Court, dated 4-7-2002 and release the accused-appellant on bail. If the accused-appellant furnishes a bail bond in the sum of Rs,5 lac and a personal bond of the same amount to the satisfaction of Assistant Registrar of this Court or any Magistrate 1st Class, he shall be released forthwith provided he is not wanted or required in any other case, otherwise he shall remain in judicial lock-up.