1. ' SARDAR SAID MUHAMMAD KHAN, C.J.--- As the above entitled appeals arise out of a consolidated judgment of the Shariat Court, we propose to dispose of the same by this single order.
2. ' These appeals have been directed against the order of the Azad Jammu and Kashmir Shariat Court dated 4-3-1993, whereby the appeal/revision filed by the appellants, herein were dismissed.
3. ' The brief facts giving rise to the present appeals are that Mst. Nazir Begum, a widow, who is resident of New Seb Village Ghelay, lodged F.I.R. Alleging that on 4th April, 1992, at 4.45 a.m. During the month of Ramazan, when she went out of her bedroom to perform ablution for offering morning prayers, she heard a report of gun shot fire on which she returned to the room, where she had left Toqir Ahmad her son, sleeping. When she was proceeding towards the room, she saw Javed Iqbal, appellant, coming out of the room armed with .12-bore gun in his hand. She caught hold of him but he dragged her and freed himself shouting that he had taken revenge. The appellants, Rabnawaz. Muhammad Afzal and Mir Zaman, who were also armed with the firearms, were standing in the courtyard. Javed Iqbal and other accused appellants proceeded to the roof of the house through stairs while she chased them. There they came across by Arshad Ali son of Liaqat Ali a close relative of Mst. Nazir Begum, who challenged the accused appellants but they ran away and escaped. When she returned to the room in which Toqir Ahmad, was sleeping, she found him lying bleeding on the `Charpar as a result of fire injury on the back of his head. Initially, a case was registered under sections 307, 458/34, APC, read with section 15 of the Islamic Penal Laws Act but when Toqir succumbed to injury in the hospital, the offence was changed to one under section 302, APC, read with section 5 of the Islamic Penal Laws Act, and section 34, APC, Mir Zaman, appellant, was initially allowed pre-arrest bail by the trial Court but the same was subsequently cancelled. The other three accused appellants sought bail from the trial Court but their prayer was disallowed. Their prayer for bail to the Shariat Court was also turned down. It is against the order of the Shariat Court that the present appeals have been preferred.
4. ' We have heard the arguments and perused the file. It has been argued by Mr. Muhammad Abdul Khaliq Ansari, Advocate, appearing on behalf of the appellants except Mir Zaman, that the Courts below have taken a wrong view of law by refusing bail to the appellants. He has taken us through the contents of the F.I.R. Statements of some prosecution witnesses recorded under section 161, Cr.P.C., and the statement of Mst. Nazir Begum, the first informant, which has been only recorded partly by the trial Court. The learned counsel has maintained that there are discrepancies and improvements in the prosecution case which was set up in the F.I.R. And one which was subsequently, improved at the time of investigation and in the Court. The learned counsel has argued that Mst. Nazir Begum, in the F.I.R. Did not state that Arshad, P.W., who was related to her, was residing in her 'house on the fateful day of occurrence; rather from the perusal of the F.I.R. It appears that he reached the spot from somewhere else and came across the accused-appellants and the complainant when they reached roof top while in the statement under section 161, Cr.P.C.
5. And one made in the Court she stated that her nephew; Arshad, has been putting up in her house before the day of occurrence. The learned counsel maintained that these improvements have been made to strengthen the prosecution case. The learned counsel has also referred to some other alleged improvements, i,e, that she did not state in the F.I.R. That after firing at Toqir, deceased, Javed Iqbal, accused-appellant, reloaded his gun but she stated so subsequently in the Court. The learned counsel maintained that this was done purposely so as to falsely implicate the accused-appellants in the case. The learned counsel has particularly laid stress on the point that in the F.I.R. She does not state that apart from Javed Iqbal, accused-appellant, other accused performed any overt act but later on in the statement she deposed that other co-accused- appellants intervened and freed Javed Iqbal from her clutches when she was catching hold of him.
6. The learned counsel has argued that the recovery of crime-empty alleged to have been fired from the gun and seized from place of occurrence is doubtful, especially so when the witnesses of the seizure memo are also related to the complainant. The learned counsel has maintained that in fact the occurrence did not take place at the time alleged by the prosecution but it took place somewhere during the night and nobody witnessed the occurrence. He has argued that the prosecution case becomes doubtful because Haqnawaz one of the prosecution witnesses, 'stated that he did not hear any report of gun fire at the alleged time despite the fact that he was awake at that time. The learned counsel has also maintained that the prosecution has also fabricated the case implicating the accused-appellants for hatching conspiracy to kill the deceased. He has particularly referred to statements of Shaheen Iqbal and Muhammad Azad, P.Ws. And has argued that they are false witnesses so as to falsely implicate the appellants.
7. ' The learned counsel for Mir Zaman, appellant, Ch. Muhammad Taj, Advocate, has maintained that even if it is assumed for the sake of argument that the accused-appellants apart from Javed Iqbal, accused were present on the spot, they cannot be saddled with constructive liability for the commission of offence because nobody saw them coming together to the place of occurrence.
8. The learned counsel maintained that assuming for the sake of argument that they were present at the time of commission of offence, it cannot be said that they shared common intention of principal offender to murder Toqir. The learned counsel for the appellants have cited following authorities in support of their contentions : ' In an unreported case of this Court entitled Muhammad Khurshid v. The State (Criminal Appeal No,18 of 1984 decided on 31-3-1985), bail was allowed to the accused persons because they were unarmed except one who inflicted the fatal injury to the deceased with a knife. It was observed that as it was not shown that the co-accused had the knowledge that the principal offender was armed with a knife, the case was one of further inquiry and the co-accused was entitled to bail.
9. ' In case reported as Muhammad Sharif v. The State PLD 1985 Sh.C. (AJ&K) 18, while deciding a reference, the Shariat Court observed that the view taken by the Sessions Judge granting bail to the accused persons was not violative of law because the principal offender had also sustained injuries for which there was no explanation on the record. It was held that some features of the case made the case one of further inquiry because it could not be said at that stage which of the parties was aggressor.
10. ' In Ch. Muhammad Bashir v. Ch. Muhammad Zaman PLD 1985 SC (AJ&K) 48, bail was granted by the Court below relying on the affidavits of some of the Advocates who had deposed that the accused, at the relevant time, were present in the Court premises. On appeal to this Court, it was observed that the discretion exercised by the Court below in allowing bail to the accused persons did not violate any principle of law on the point. The appeal was dismissed. It may be pointed out that bail was not granted by this Court rather the bail granted to the accused by the Court below was affirmed by this Court by dismissing the appeal.
11. ' In case reported as State v. Naseer Ahmad PLD 1986 SC (AJ&K) 35, the matter did not pertain to bail, rather the same pertained to an order of acquittal which was set aside by this Court and the accused was convicted and sentenced to life imprisonment.
12. ' In case reported as The State v. Rashid Ahmad 1988 SCM R 1129, it was observed that in the circumstances of the case the accused should not have been released on bail by the High Court.
13. However, bail order was not set aside observing that the accused might have stood his trial by that time.
14. ' In the State v. Abdul Haque 1990 SCM R 263, the Supreme Court refused to allow petition for leave to appeal on the ground that the view taken by the High Court while releasing the accused on bail did not suffer from any legal infirmity.
15. ' The learned Additional Advocate-General controverted the contentions of the learned counsel for the appellants and maintained that in view of the circumstances of the case, bail was rightly refused to the appellants. He has contended that in view of the statements Mst. Nazir Begum, Arshad Ali, Shaukat P.Ws., the accused-appellants are prima facie connected with the commission of the crime; and that the discretion exercised by the Courts below refusing bail to the accused- appellants does not call for any interference.
16. ' Ch. Ali Muhammad, Advocate, the learned counsel for the complainant, has also strongly opposed the contention of the learned counsel for the appellants. He has argued that the F.I.R. Is not a detailed document, he has argued that taking into consideration the contents of F.I.R. The statements recorded under section 161, Cr.P.C. And, the statement of Mst. Nazir Begum, which has been partly recorded by the trial Court, are not contradictory. He has argued that it has nowhere been stated by Mst. Nazir Begum that Arshad Ali, P.W., was not living in her house on the day of occurrence or previous to that. He has stated that the room in which he has been shown in the site plan present at the time of occurrence is situated in the direction that it was natural for him to come across the complainant and the accused when the accused-appellants were escaping through the roof top; thus, the mere fact that the complainant, in the F.I.R., has stated that Arshad came across the complainant and the accused persons when the accused were escaping from the place of occurrence is not contradictory to the prosecution story. The learned counsel has argued that Shaukat, P.W., has also seen the accused-appellants while they were escaping after the commission of offence. The learned counsel has argued that the very presence of the accused-appellants armed with lethal weapons at odd hours of the morning clearly shows that the murder was committed as a result of preconcert and in furtherance of the common intention of all the accused-appellants. The learned counsel has argued that the prosecution story is corroborated by the report of the Arms Expert according to which the crime-empty was fired from the gun which has been allegedly recovered from Javed, accused-appellant. The learned counsel has argued that the omission referred to by the learned counsel for the appellants are not material and as such do not amount to contradictions, the learned counsel has further maintained that this Court would not disturb the discretion exercised by the Courts below in bail matters until and unless the same is shown to be perverse as being violative of settled principles of law on the subject. The learned counsel has cited following authorities in support of his contention:-- ' In Nazar Muhammad v. The State PLD 1978 SC 236, it was held that the question of constructive liability can be gone into at the bail stage in view of the material on the record. It was observed that as the petitioner, who killed the deceased with gun fire, was a member of the unlawful assembly and the accused persons waylaid the deceased, the principle of vicarious liability was fully attracted to the case.
17. ' In case reported as Muhammad Ashiq v. Muhammad Tufail 1977 SCM R 46, the respondent who was present on the place of occurrence and was armed with a pistol and was attributed `Lalkara', he was allowed bail but the same was cancelled by the Supreme Court holding that he was, prima facie, connected with the vicarious liability for the murder.
18. ' In case Amir Khan v. The State 1970 SCM R 789, the petition . For leave to appeal was dismissed observing that out of three investigations only in one it was opined that the accused should not be challaned for murder. It was observed that it cannot be said that the accused was entitled to bail.
19. The accused who was attributed `Lalkara' and was armed with fire-arm was refused bail in the circumstances of the. Case.
20. ' In case reported as Raja Muhammad Akram v. Abdul Karim 1975 PCr.LJ 390, it was observed that it is not necessary to prove that each member of the unlawful assembly committed overt act towards the murder; it was observed that even if one of the accused persons who is member of an unlawful assembly commits an offence, other members of the unlawful assembly are equally liable.
21. ' We have given our due consideration to the arguments advanced at Bar and the case-law cited.
22. It may be observed that in criminal cases, especially in bail matters, the authorities pertaining to one case are hardly helpful to other cases, because each case has its own peculiar circumstances.
23. Even otherwise, as indicated above, the Authorities cited by the learned counsel for, the parties are not relevant to the case in hand. In the instant case murder is alleged to have been committed at the odd hours of night or at about dawn. Since all the Authorities cited by either of the parties pertain to incidents which did not take place at such odd hours as in the present ease, those are distinguishable. In view of the statements of Mst. Nazir Begum, Arshad and Shaukat, P.Ws., coupled with the view by the Ballistic Expert regarding the crime-empty, it cannot be said at this stage that even if it is assumed that the accused other than Javed Iqbal were present on the spot they cannot be clothed with the vicarious liability, is not correct. If their presence on the spot at the odd hours of the night armed with lethal weapons is accepted, it cannot be said that they are not prima facie, connected with the constructive liability for the commission of offence of murder of Toqir, deceased.
24. ' So far as the discrepancies and improvements in the case of prosecution, as contended by the learned counsel for the appellants, are concerned, we cannot go into the deep appreciation of the evidence at this stage and give finding as to whether there is any material discrepancy or omission and if so whether same is fatal to prosecution case. Suffice it to say, that in view of the statements of Mst. Nazir Begum, the mother of the deceased, Arshad and Shaukat, P.Ws. Coupled with other circumstances indicated above, it cannot be said that the discretion exercised by the Courts below in refusing bail to the accused-appellants is violative of law. It may be pointed out here that some of the Authorities cited by the learned counsel for the appellants pertain to the cancellation of bail allowed by the subordinate Courts. The cancellation of bail matter is to be viewed from altogether a different angle than the question of allowing bail to an accused person which has been refused by the Courts below. This Court would not ordinarily interfere in the discretion of the Courts below in bail matters; it would require some special circumstances calling for interference in the discretion exercised by the Courts below.
25. ' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed.