' MUHAMMAD YUNUS SURAKHVI, C.J.--- This appeal has been directed against the judgment passed by the Shariat Court on 20-4-2002, whereby the revision petitions filed by the appellant herein were dismissed.
2. The necessary facts, forming the background of the present appeal, precisely stated, that Muhammad Akram Khan, appellant herein, lodged a report at Police Station Chakswari on 23-8- 2000 at about 6-30 p.m. Alleging therein that on 14-8-2000 at about 7-00 p.m. After taking the dinner, he alongwith his wife and other family members except Arshad Mehmood, deceased, went to see his daughter who, had recently come back from England. All of them were busy in discussing domestic problems that at about 8-45 p.m. Akhlaq Ahmed, real brother of accused Mazhar Iqbal, told them that Arshad Mehmood has been burnt. On hearing this, he alongwith his other family members rushed to his house and saw that Arshad Mehmood was rolling restlessly on the ground due to injuries caused by burn. He alongwith his family members took him to Al-Karam Hospital but the doctor advised him to immediately take the injured to Burn Hospital, Kharian. The injured was taken to the said hospital but the doctor advised him to take him back to home. On 15-8-2000 at about 7-00 a.m. Arshad Mehmood succumbed to the injuries. The complainant was in a great shock and remained busy in the treatment of his son, therefore, he could not lodged the report promptly. However, now he entertained a reasonable apprehension that Mazhar Iqbal has sprinkled something on the body of the deceased son and ablazed him due to past enmity. On this report the police proceeded under section 174, Cr.P.C. And after performing the post-mortem of the deceased, a case against the accused-respondents was registered under section 302 read with section 34, A.P.C. At Police Station Chakswari. After necessary investigation both the accused were sent to face their trial before the Court of competent jurisdiction.
3. In the first instance both the accused moved a joint application on 8-2-2001 which was dismissed by the District Criminal Court vide its order, dated 1940-2001. Later on after recording the statements of Shaukat Hussain, P.W.8, and Akhlaq Ahmed, P.W.9, having been given up by the prosecution, a separate bail application was moved on 12-11-2001 by Mazhar Iqbal, accused, whereas on 5-1-2002 Zohra Bibi, accused, also moved her bail application. The trial Court after consolidating both the applications and hearing the parties reached the conclusion that sufficient grounds were not available to connect the accused with the commission of offence, therefore, their case needed further probe and inquiry. Consequently, Mazhar Iqbal and Zohra Bibi were released on bail on 4-1-2002 and 10-1-2002 respectively. Both the orders were assailed before the Shariat Court which were upheld by the Shariat Court vide its consolidated judgment dated 20-4-2002. It is the aforesaid judgment of the Shariat Court which is the subject-matter of present appeal.
4. Mr. Muhammad Yunus Tahir, the learned counsel appearing on behalf of the complainant- appellant, vehemently contended that the delay in the lodgment of F.I.R. Has been sufficiently explained by the prosecution that the complainant on account of medical treatment of his son could not get registered the case promptly. The learned counsel contended that the prosecution has produced five witnesses who were unanimous on the point that the accused Mazhar Iqbal purchased Attivan tablets and handed over the same to Mst. Zohra Bibi, co-accused, who mixed these tablets in the sweet dish and offered the same to Arshad Mehmood who after taking the sweet got unconscious due to over-dosage. Upon this Mazhar Iqbal, accused, sprinkled petrol upon him and got him ablazed. The learned counsel submitted that the trial Court fell in error in observing that due to statement of hostile witness, Shaukat Hussain, P.W.8, the case of the prosecution has become doubtful. The learned counsel argued that the prosecution is not supposed to examine all its witnesses and by withholding evidence of Akhlaq Ahmed, P.W.9, the case of prosecution has not been affected adversely because he is real brother of Mazhar Iqbal, accused. The learned counsel emphasized with all the force at his command that the trial Court has in its earlier order observed that the complainant had satisfactorily explained the delay in lodging the F.I.R. But after holding the same the trial Court observed in the second round of bail application that no plausible explanation has been given by the prosecution for delay in lodging the F.I.R. The learned counsel contended that in the first round of bail, the trial Court observed that the accused were reasonably connected with the commission of the offence and as such they did not deserve the concession of bail. Thus, there being no new ground available to the Court, the accused-respondents should not have been released on bail in the subsequent round of bail plea.
The learned counsel contended that the accused have committed a grave offence, as such they have erroneously been released on bail by exercising the discretion in an arbitrary and fanciful way. The learned counsel in support of his contentions placed reliance on reported cases titled Zahid Hussain Mirza v. State and another 2000 SCR 184, Muhammad Waheed v. State 1996 SCR 295 and an unreported case of this Court titled Asghar Ali v. Akhlaqat Ali Criminal Appeal No,11 of 2001, decided on 31-10-2001.
5. Controverting the arguments raised by the learned counsel for the appellant, Raja Tariq Pervaiz Nawabi, the learned counsel for respondent No,1 submitted that in the first round the bail application was refused by the trial Court observing that Shaukat Hussain, Chemist from whom Attivan tablets were allegedly purchased and subsequently used in the sweet dish which was given to the deceased, his statement had not been recorded who according to the version of the trial Court was an important witness. It was also argued by the learned counsel for the respondent that when at a subsequent stage that bail of accused was granted, by that time the statement of Shaukat Hussain, Chemist, had been recorded who was declared hostile by the prosecution.
Similarly Akhlaq Ahmed, P.W. Who happened to be the real brother of Mazhar Iqbal, was also given up by the prosecution apprehending that he might depose against the accused. The learned counsel pointed out -some serious defects in the case of the prosecution by submitting that the Chemist from whom Attivan tablets were allegedly purchased deposed in the Court that he never kept in his store Attivan tablets. The learned counsel also emphasized that there was no evidence available with the prosecution to -the effect that who handed over the said tablets to Mst. Zohra Bibi, who allegedly mixed them in the sweet dish. There was also no evidence of her mixing the tablets in sweet dish. Similarly according to the learned counsel Sardar Iqbal, who was shown to have purchased petrol, also stated before the Court that he never purchased any petrol. The bottle from which the petrol was used was, also not sent for the opinion of any expert. Above all the learned counsel contended that even after the arrest of accused; the complainant his wife, his daughter Nasim Begum, and other family members on 17th or 18th of November got their statements recorded before the police that they had no apprehension regarding the commission of offence from the accused and they had no enmity with anybody.
6. Ch. Muhammad Afzal, the learned counsel for Mst. Zohra Bibi co-accused, contended that from the post-mortem of the deceased it was not found that any poison or any drowsy material was detected which was given to the deceased before his death and in consequence of which he became unconscious. The learned counsel in support of his case placed reliance on a case reported as Muhammad Miskeen v. Muhammad Ayah 1992 SCR 379. The learned counsel contended tat the accused had been in jail for about one and a half year, as such there are no circumstances whatsoever to cancel the bail already granted to them.
7. Sardar Abdul Ruzik. Khan, the learned Additional Advocate-General, also supported the appeal filed by the complainant and fully owned the arguments raised by Mr. Muhammad Yunus Tahir, the learned counsel for the appellant.
8. We have given our due consideration to the arguments advanced by the learned counsel for the parties and with their assistance have examined the record of the case carefully. The main thrust of the case of the prosecution is that in the first instance the bail application or both the accused- respondents was rejected by the trial Court and it was observed that sufficient explanation for explaining delay in the lodgment of F.I.R. Has been given by the prosecution. It has also been observed by the trial Court vide its judgment dated 19-10-2001 that the accused are connected with the commission of offence. In the judgment it was stated that the death of Arshad Mehmood has taken place due to some burn material. According to the post-mortem report the death of deceased took place on account of burning and on the pointation of Mazhar Iqbal accused a plastic bottle of petrol had been taken into possession by the police. Similarly on the pointation of Mst. Zohra Bibi, from her possession Attivan tablets have been taken into possession by the police.
The evidence of Shaukat Hussain, Chemist, from whose shop the Attivan tablets were allegedly purchased, has not been recorded as yet. The case of the prosecution is not based on direct evidence rather the same is based on circumstantial evidence which took place during the night.
So according to the trial Court, the evidence of Muhammad Ikhlaq and Shaukat Hussain was very material keeping in view the facts and circumstances of the case but the same has not been recorded as yet. When the subsequent bail application was moved, the trial Court released both the accused on the ground that on the basis of evidence produced by the prosecution it cannot be said at this stage that there were reasonable grounds to believe that the accused had committed the non-bailable offence alleged against them. Shaukat Hussain, Chemist, from whose shop the Attivan tablets were allegedly purchased, appeared as a witness but he stated unequivocally that he never kept Attivan tablets in his store. There is also no evidence handing over the Attivan tablets by accused Mazhar Iqbal to co-accused, Mst. Zohra Bibi. Similarly there is nothing A suggestive in the prosecution story that someone saw Mst. Zohra Bibi, co-accused, mixing the Attivan tablets in the sweet dish. The alleged Attivan tablets were recovered in presence of Muhammad Akram, complainant, who stated that the leaf in which the Attivan tablets were lying is not the same which was recovered by the police. Similarly one Sardar Iqbal clearly stated that no petrol was purchased from him by the accused. The alleged petrol was also not sent to laboratory for chemical examination and opinion. In all the memos. Of recovery against the accused, the father and brother of the deceased have been planted as the witnesses despite the fact that independent witnesses were available. Raja Muhammad Akram Khan, complainant, his wife and his daughter on 17th or 18th August, 2000 got recorded their statements before the police that they had no enmity with anyone thus, they do not have any doubt about the murder of the deceased.
9. The above narrated points, in our view, are of vital importance which bring the case of the prosecution within the purview of further inquiry. The Shariat Court has gone deep into the appreciation of evidence which is not the requirement of law while deciding the bail applications.
The deeper appreciation of evidence made by the Shariat Court shall be considered to be relevant only for the purpose of bail of bail matter.
10. Mr. Muhammad Yunus Tahir, the learned counsel for the appellant, in support of his contentions placed reliance on a reported case titled Muhammad Waheed v. State 1.996 SCR 29 wherein it was observed that in a fresh bail application matters which have been considered in the previous judgment cannot be re-opened. A fresh bail application is not barred under law but it can only be moved as and when fresh ground has become available. The learned counsel also cited another case title Zahid Hussain Mirza v. The State and another 2000 SCR 184 wherein it was observed that it is well-settled principle of law that while dealing with the bail matter the Court should not go into deeper appreciation or evaluation of evidence or incriminating circumstances; only a bird eye view should be taken by the Court in the light of relevant material and deep probe into the evidence should be avoided.
11. On the other hand Ch. Muhammad Afzal, the learned counsel for accused-respondent Mst. Zohra Bibi has placed reliance on a case reported as Muhammad Miskeen v. Muhammad Ayub 1992 SCR 379 wherein it was reiterated by this Court that this Court does not interfere in the discretion exercised by the Shariat Court in the bail matter unless the same is shown to be perverse or against law.
12. It may be pointed out that in criminal matters particularly in bail matters the authority in one case has hardly any relevancy to the facts and circumstances of the other case. However, the broader principles laid down by the superior Courts are to be taken into consideration. We have already mentioned in detail somewhere in the preceding paras of this judgment that as a general principle it is correct that unless there be a fresh material, the subsequent application is normally not entettainable, but in this case this principle has no application for the simple reason that in the very first judgment on the first bail application it was pointed out by the trial Court that the evidence of Shaukat Hussain and Ikhlaq Ahmed yet remains to be recorded which has a great bearing on the facts of the case and when that evidence was recorded then the accused had every right to move a subsequent bail application and to pray for their release on bail. We are also of the opinion that the principle that unless there be a fresh material the subsequent bail application cannot be considered is not a principle of universal application because a decision on bail application strictly speaking'cannot be construed to be a judgment under section 369, Cr.P.C.
There is ample authority on the point that even the point urged and having not been decided in the first round of bail application shall be considered to be the fresh ground or material, for the purpose of moving the subsequent bail application. The authority cited by the learned counsel for the appellant-complainant titled Zahid Hussain Mirza v. The State and another 2000 SCR 184 is relevant to the extent that at the stage of bail deeper appreciation of evidence or its evaluation is neither desirable nor permissible but at the same time the Court cannot decide even a bail application in vacuum. Therefore, any of the observations made in the bail application should be taken only for the limited purpose of bail and not for any other purpose. We have also pointed out that the appreciation of evidence in detail by the Shariat Court shall also be taken to be only for the purpose of bail and not for any other purpose so that it may not prejudice the case of either of the parties.
' After having found no illegality in the impugned judgment, we find no merit in this appeal the same, therefore, stands dismissed.