' MUHAMMAD YUNUS SURAKHV1, C.J.--- This appeal has been preferred against the judgment passed by the Shariat Court of Azad Jammu and Kashmir on 24-2-2004, whereby the bail was declined to the appellant in a case registered against him and some others at Police Station, Muzaffarabad for allegedly committing offences under sections 324, 337(2)(00(m), 341, 109, A.P.C.
And 13120/65 of Arms Ordinance and the judgments recorded by all the Courts below were upheld.
The accused-appellant in the first instance was refused bail by Additional Tehsil Criminal Court, Muzaffarabad on 13-11-2003 while the other co-accused were allowed bail by the said Court. His second bail application was refused by the District Criminal Court, Muzaffarabad on 27-12-2003.
This order was assailed by the accused-appellant before the Shariat Court of Azad Jammu and Kashmir bat it also declined bail to the accused-appellant vide its judgment dated 24-2- 2004. It is the aforesaid judgment of the Shariat Court which is the subject-matter of present appeal.
2. In support of appeal it was vehemently contended by Mr. Mujahid Hussain Naqvi, the learned counsel for the appellant, that the accused-appellant is a young college going boy and has to appear in the examination which is likely to be held in the coming May, 2004. The learned counsel also contended that at the time of occurrence, the accused was below the age of 18 years and as such was entitled to the concession of bail under proviso 1st of section 497, Cr.P.C. The learned counsel strenuously argued that the appellant alongwith the other accused persons on 1-11-2003 at 8-15 p.m. When the people were coming out of mosque after performance of Travhi prayers, attacked upon Safir Ahmed and his relatives and inflicted stab wounds upon them. The injuries on the person of Safir Ahmed upon the examination of the doctor appeared to have been caused by knife. The learned counsel pressed into service the submission that the identification of the accused was doubtful as none of the prosecution witnesses identified the accused, as such the benefit of doubt, if any, goes to the accused, even at the stage of bail. The learned counsel contended that the investigation against the accused has been completed and a challan has been presented against the accused persons before the competent Court of law. The accused- appellant since the day of occurrence is under arrest and is confined in the judicial lock-up and there remains nothing to be recovered from him. If the accused remains for some more period in jail where there are hardened criminals and offenders, it is likely to adversely affect his future. The learned counsel thus, craved for the release of accused on bail. He in support of his contentions relied upon the cases reported as Muhammad Yunus and another v. Malik Muhammad Nawaz and 5 others 1997 SCR 125, Fazlur Rehman v. The State AIR 1919 Pat. 78, Miss Farah Naz v. The State PLD 1979 Lah. 477, Siraj Din v. Saghir-ud-Din alias Goga and another 1970 SCMR 30 and Zahid Paris and another v. The State 1995 SCR 104.
' In Muhammad Yunus and another v. Malik Muhammad Nawaz and 5 others 1997 SCR 125 it was observed that even for the purpose of bail, law is not to be stretched in fvaor of prosecution. If at all benefit of doubt arises, even at the bail stage, it must go to the accused.
' In Fazalur Rehman v. The State AIR 1919 Pat. 78 it was observed that the bail cannot be withheld as punishment and may be allowed in appropriate case. It was held that mere heinousness of offence by itself is not a circumstance to take away the discretion of Court to grant bail.
' In Miss Farah Naz v. The State PLD 1979 Lah. 477, it was observed that mere fact of large number of injuries being inflicted by the accused persons does not per se disentitle them to bail.
' In Siraj Din v. Saghir-ud-Din alias Goga and another 1970 SCMR 30 it was observed that the age of accused on X-ray examination was found to be 16/17 years which was good ground for bail even in case of capital offence.
' In Zahid Paris and another v. The State 1995 SCR 104 it was observed that heinousness per se is no ground for the refusal of bail. Although this is one of the factors coupled with prima facie involvement of the accused with the commission of offence to be taken into consideration for deciding bail matters but not the only factor. Therefore, on the mere ground of heinousness of offence or its gravity, the concession of bail cannot be refused to the accused. '
3. Mr. Mujahid Hussain Naqvi, the learned counsel for the appellant, strongly argued that the occurrence took place when the complainant party was coming out of the mosque after offering Travhi prayers and obviously there should have been a lot of persons alongwith them 'who would be residents of the same locality. If the accused-appellant inflicted injuries upon Safir Ahmed and similarly the other accused persons inflicted injuries or. The other persons, anyone out of the villagers could have stated so before the police and could have got his statement recorded.
4. On the other hand Raja Ibrar Hussain, the learned Advocate-General, appearing on behalf of the State, strongly opposed the grant of bail to the accused-appellant and contended that all the Courts below have rightly observed that the accused did not deserve to be released on bail as he had committed a heinous offence. He further contended that when the bail of accused was refused by Tehsil Criminal Court and District Criminal Court, there was no fresh ground before the Shariat Court to consider the bail application of the accused-appellant. He emphasized that the mere fact that the accused is below the age of 18 years is not the sole ground for releasing him on hail, however, if this factor is coupled with the other circumstances, then of course he becomes entitled to concession of bail but in the instant case no such circumstances are available to the accused-appellant. The learned Advocate-General pointed out that the mere heinousness of offence is of course no ground for refusing bail to an accused person but if the accused is connected with the commission of offence and at the same time the offence is also heinous one, then these are the recognized grounds to refuse bail to the accused. The learned Advocate- General in support of his contentions placed reliance upon the cases reported as Abdul Majid v.
Mst. Yasmeen Alchtar 1993 SCR 108 and Arshad Mahmood and another v. The State 1994 SCR 260.
' In Abdul Majid v. Mst. Yasmeen Akhtar 1993 SCR 108 it was observed that age per se is net a ground for which bail should necessarily be granted. The power to grant bail on the ground that the accused is below the- age of 16 years is discretionary which has to be exercised in the context of overall circumstances of the case.
' In Arshad Mahmood and another v. The State 1994 SCR 260 it was observed that the deep scrutiny of evidence at the stage of bail is not permissible. The view taken by the Shariat Court that accumulative effect of the evidence of witnesses prima facie connects the accused-appellants with the commission of the offences does not call for interference.
5. After haring the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that it had been pointed out time and again and it had further been laid down by this Court that an authority in one bail matter is hardly relevant in the other bail matter and the same has no application to the facts and circumstances of the other case as the facts and circumstances of each criminal case are invariably different than the other one The accused appellant in the instant case is alleged to have inflicted five injuries with knife upon the person of Safir Ahmed. Out of the five injuries caused on the person of Safir Ahmed, injury No,(1) is Shajjah-i- Mudihah, whereas injuries Nos.(2) to (5) are Ghair-Jaifah-Badiah and the weapon of offence is shown to be a sharp-edged weapon. When we examined the police record minutely, no one out of the villagers, who were offering Travhi prayers, has supported the version of the case as alleged by the prosecution. Even Khani Zaman, the uncle of victim (Muhammad. Safir) who was injured during the incident, in his statement recorded under section 161, 'Cr.P.C. Has not clearly supported the case of the prosecution. He simply states that Zubair Hussain, who was armed with a Chhuri inflicted injuries on the head, abdomen and vulnerable parts of the body but he failed to point out as to whom these injuries were inflicted. The statements of P.Ws., namely, Muhammad Farid son of Muhammad Suleman, Hafiz Shahid Hussain, Kh. Khurshid Ahmed, Farooq Ahmed, Tanvir Ahmed and Abdul Qayyum, have been recorded by the police under section 161, Cr.P.C. And they are shown to have been offering Travhi prayers and coming' out of mosque soon after the occurrence.
6. Muhammad Farid, son of Muhammad Suleman, in his statement recorded on 4-11-2003 under section 161, Cr.P.C. Stated in clear and unequivocal terms that Zubair Hussain, son of Nazar Hussain, inflicted Chhuri injury upon Khani Zaman while Shehbaz Rasheed inflicted Chhuri injury upon Muhammad Safir and both of them became seriously injured who were soaked in blood. The witness also stated that he alongwith Farooq Ahmed Awan, Mehtab Ahmed, Muhammad Mahroof and Zahoor Ahmed separated the accused persons from the injured persons and get them bandaged.
7. Hafiz Shahid Hussain, son of Muhammad Suleman, another witness, in his statement recorded under section 161, Cr.P.C. Stated that Zubair Hussain, son of Nazar Hussain, inflicted Chhuri injury upon Khani Zaman while Shehbaz Rasheed inflicted Chhuri injury upon Muhammad Safir and both of them became seriously injured who were soaked in blood. He also stated that apart from him Farooq Ahmed Awan, Muhammad Farid, Mehtab Ahmed, Muhammad Mahroof and Zahoor Ahmed separated the accused persons from the injured persons and get them bandaged. He further stated that after the commission of offence the accused persons ran away from the scene of occurrence.
8. Similarly Kh. Khurshid Ahmed, son of Kh. Abdul Wahab, in his statement recorded under section 161, Cr.P.C. Has clearly stated that Zubair Hussain, son of Nazar Hussain, inflicted Chhuri injury upon Khani Zaman while Shehbaz Rasheed inflicted Chhuri injury upon Muhammad Safir and both of them became seriously injured who were soaked in blood. The witness also stated that he alongwith Farooq Ahmed Awan, Muhammad Farid, Mehtab Ahmed, Muhammad Mahroof and Zahoor Ahmed separated the accused persons from the injured persons and get them bandaged.
He further stated that after the commission of offence the accused persons ran away from the scene of occurrence.
9. To the similar effect is the statement of Farooq Ahmed, son of Mahboob Ahmed.
10. The above stated four witnesses have totally negated the case of prosecution as set up in the F.I.R. And in the statements recorded under section 161, Cr.P.C. By Muhammad Farid son of Sanaullah, Safir Ahmed son of Sanaullah and to a certain extent in the statement of Khani Zaman.
The police relies upon the evidence of above four witnesses and they have been shown in the calendar of challan as eyewitnesses. Thus, the evidence of these four witnesses being in conflict with the evidence of injured witnesses, namely, Muhammad Farid son of Sanaullah, Safir Ahmed and Khani Zaman, the benefit of doubt, even at the stage of bail, will go to the accused as it is a settled principle of law which cannot be deviated and brushed aside.
11. The weapons of offence which were allegedly recovered at the instance of accused are also not blood-stained and what would be its effect upon the prosecution story cannot be dilated upon at this stage. However, we are of the view that all the Courts below while dealing with the case in the first round of litigation did not even read the record of prosecution carefully. On careful consideration and perusal of record we are of the view that the case of accused-appellant falls within the purview of further inquiry as it is yet to be determined as to whether the accused- appellant or someone else inflicted injuries upon the person of Safir Ahmed.
12. The case of the accused-appellant clearly falls within the purview of further inquiry, as such he is entitled to be released on bail. He is, therefore, released on bail on his furnishing bail bond and personal bond of Rs,2,00,000 consisting of two sureties to the satisfaction of Registrar of this Court or any Magistrate 1st Class, Muzaffarabad, if the needful is done, he shall be released forthwith provided he is not wanted in any other case or offence. If the accused-appellant fails to furnish bail bond and his personal bond, he shall remain in judicial lock-up. The appeal, therefore, stands accepted and the impugned judgment of the Shariat Court dated 24-2-2004 and the judgments of all the Courts below to the extent of appellant herein are set aside.