' CHAUDHARY MUHAMMAD TAJ, J.-This appeal has been filed against the judgment and order passed by the Shariat Court on 22-4-2004 whereby the revision was accepted and the by the trial Court was cancelled.
2. The facts are that a case under sections 302, 341, 324, 34 and 337-A, APC read with section 17(4) of the Offences Against Property (Enforcement of Hudood) Act, 1985 and section 13 of Arms Ordinance, 1965 was registered against the accused-appellants and other accused persons (not before the Court) at police station Khuiratta. After investigation the case stood challaned before the District Court of Criminal Jurisdiction Kotli. An application for grant of bail on behalf of the appellants was moved before the trial Court which was accepted. However, on a revision petition filed before the Shariat Court the bail was cancelled. The aforesaid order is challenged through this appeal.
3. The First Information Report was lodged by one Muhammad Ilyas son of Muhammad Siddique at Police Station Khuiratta. It was stated that the complainant was running a P.C.O. At Saidpur where his brother Shakeel Ahmad and Ishtiaque Ahmad were also working. On 9-2-2002 his brother Shakeel Ahmad and said Ishtiaque Ahmad were proceeding towards home at a motor bike. At about 10:00 p.m. They reached Saidpur cross. About 5 or 6 persons who had covered their faces stopped them. His brother was beaten by kicks and fists by them who also robbed Rs,7,000 from the pocket of Ishtiaque. When they started towards their home, out of those armed persons some one fired with pistol at them which hit Ishtiaque Ahmad on his back who fell down. The brother Shakeel raised hue and cry upon which people from the village came over there. Ishtiaque Ahmad was taken to the Hospital. The injured Ishtiaque Ahmad later on succumbed to the injuries.
4. After investigation the case was challaned against the appellants and other accused persons.
The accused-appellants applied for their bail through application which was accepted by the trial Court. However, the order was recalled on a revision petition, filed on behalf of the complainant- respondent.
5. Mr. Muhammad Yunus Tahir, who appeared on behalf of the appellants, raised following points in support of the appeal:--
(i) That there was no prima facie case against the accused-appellants. It was explained that in the First Information Report which was lodged by the brother of Muhammad Shakeel the names of the appellants were not mentioned;
(ii) that after the arrest of the accused-appellants no identification parade was held as such the matter is of further probe;
(iii) that even otherwise, there are no reasonable grounds which may connect the accused- appellants with the offence. It was explained that the allegation of recovery of Rs,1,600 from each of the appellants is alleged along with recovery of a pistol and a revolver. The aforesaid recovery is not only doubtful but does not connect the accused-appellants with the offence. Therefore, the matter is of further inquiry; and
(iv) that the trial Court after careful consideration proceeded to grant bail. The verdict of the trial Court has got a weight. The cancellation of the bail was made on the ground not recognized by law.
6. Raja Tariq Pervez Nawabi who appeared for the complainant-respondent argued in the following manner:--
(i) That there is a very strong case against the accused-appellants. They are connected with the offence on the basis of incriminating material collected by the prosecution such as recovery of currency notes and fire-arm effected upon them;
(ii) that the Shariat Court of Azad Jammu and Kashmir gave strong grounds for cancellation of bail allowed by the trial Court, therefore, the order does not warrant any interference by this Court; and
(iii) that the prosecution evidence has yet to be recorded, therefore, exercise of discretion in favour of appellants would be against law at this stage of the case.
7. We have heard the learned counsel for the parties and also gone through the record. The learned Judge in the Shariat Court has cancelled the by the trial Court on the ground that the trial Court has made deeper appreciation which, according to him, was against law. It was also held that the prosecutiorr evidence particularly the statements of the recovery witnesses are yet to be recorded. Therefore, it was required that the tentative assessment of the evidence should have been made.
8. The trial Court allowed bail to the accused-appellants on the ground that they were not nominated in the First Information Report and were also not identified. The First Information Report disclosed. That 5 or 6 persons were involved. However, challan was presented against four persons.
The order also disclosed that there is no allegation of causing fire-arm injuries to the accused- appellants. The recovery of currency notes without any identification mark was also made a ground for grant of bail.
9. Under section 497, Cr.P.C. If any person accused of any non-bailable offence is arrested or detained, he may be released on bail but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life provided the accused person is under the age of sixteen years or any woman or any sick or infirm person. However, under subsection (2) of section 497, Cr.P.C. If it appears at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail.
10. The learned Judge in the Shariat Court mainly based his order on the ground that the trial Court made deeper appreciation of the fact and a tentative assessment should have been made. In our view the bail order cannot be made in vacuum. The Court has to pass an order keeping in view the material placed before it. We can better understand the assessment of the evidence as observed by the Judges of the Supreme Court of Pakistan in their judgment recorded in a case reported as Khalid Javed Gilan v. The State (PLD 1978 SC 256) where all the leading cases on the subject were also considered. The relevant observations are reproduced:-- "As the power conferred in this section is not an arbitrary power, it has to be exercised by reference to the material placed before the Court and as to what that material should be, we cannot do better than quote the observations of Sajjad Ahmad Jan, J., in Manzoor and 4 others v. The State (PLD 1972 SC 81). There Sajjad Ahmad Jan, J. Observed that this material would consist of 'the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence. The other relevant circumstances would include evidence produced by the accused, and, as submitted by Mr. Sardar Iqbal, section 497, Cr.P.C. Does not draw any distinction between evidence produced by the prosecution and evidence produced by the accused. Now as bail has to be allowed or rejected on the basis of this material, it follows that the Court has to make a tentative assessm ent of its evidentiary value in order to decide a bail application, the moreso, as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it. But the section is a part of a Code under which the guilt or innocence of the accused has to be determined in the light of the evidence which is produced when the trial of the accused begins, therefore, whilst deciding a bail application, the Courts, and especially the superior Courts, must refrain, directly or indirectly from giving any conclusive finding on the question of the guilt or innocence of the accused, and it may be that an application for bail may fail, if it cannot be decided without an elaborate sifting of evidence. But because the Court must not prejudge the case of the prosecution or of the accused, this does not mean that the Court can shirk its obligation to decide the application for bail before it, and that application can only be decided by Court's belief about the material produced before it."
' We now turn to the case-law. The leading case on the question is that of Khalid Saigol v. The State (PLD 1962 SC 49). The judgment was by a very strong Court consisting of Cornelius, C.J., Kaikaus, J.
And Hamoodur Rahman, J. Hamoodur Rahman, J. (as he then was), who pronounced the judgment of the Court observed at page 499: "It will be observed that even under section 497(1) in the case of an offence punishable with death or transportation for life the mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. Subsection (1) of section 497 evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court and, as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has, nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists."
11. In the present case we notice following important features of the case:--
(i) That the names of the accused-appellants do not figure in the First Information Report;
(ii) that after the arrest of the accused-appellants along with other accused persons no identification parade was held;
(iii) that the prosecution has relied upon the recovery of currency notes of Rs,1,600 from each of the accused-appellants and also recovery of a pistol and revolver from them. There is no identification mark on the currency notes and the aforesaid pistol and revolver are not alleged to have been used; and
(iv) that the trial Court, which had also the opportunity of recording the statements of some of the prosecution witnesses, proceeded to grant bail to the accused-appellants.
12. In view of the above state of facts and law, we are of the view that the matter is of further inquiry.
Therefore, the order passed by the Shariat Court is not maintainable which is set aside by accepting the appeal. The accused-appellants shall be released subject to furnishing of a bail bond in the sum of Rs,5,00,000 (Rupees five lac only) with two sureties each and personal bond in the like amount to the satisfaction of Assistant Registrar, Mirpur.