' SARDAR SAID MUHMAMAD KHAN, C.J.---As the above entitled appeals have been directed against the judgment of the Shariat Court dated 4-4-2002, whereby the accused-respondents were extended the concession of bail, we propose to dispose of the same through this single judgment.
2. The brief facts of the case are that Rameez and others, accused-respondents, are facing trial under sections 302, 34/109, A.P.C. Read with sections 13 of the Arms Act.
1965. It is alleged in the First Information Report that the accused party was inimical to Muhammad Arif, deceased, due to a dispute over land; an incident which occurred between one day prior to the day of occurrence i.e. 13-9-2001 when accused-respondents trespassed into the land which belongs to the deceased. On 14-9-2001, when Muhammad Arif, deceased, was sitting in public call office Ghazi . Bazar Kartot, Mazhar Iqbal, Sikandar Hayat and Rameez, accused-respondents, came there. Sikandar Hayat and Rameez, stood outside the door of public call office and raised `Lalkara' threatening the deceased that his life would not be spared because he came to the disputed land despite their warning. At this Mazhar Iqbal, respondent, who was armed with Kalashinkov fired at Muhammad Arif who succumbed to the injuries. During the pendency of the trial, Mst. Sameena Khan, one of the legal heirs of the deceased, pardoned the accused-respondents and waived her right of demanding `Qisas' from the accused-respondents. The bail application filed before the trial Court was rejected but on appeal to the Shariat Court the accused-respondents were extended the concession of bail on the grounds that as one of the heirs, Mst. Sameena Khan. Compounded the offence with the accused-respondent's they cannot be awarded punishbent of `Qisas' i.e. Death or the imprisonment of 25 years for murder of Muhammad Arif. It is against the aforesaid judgment of the Shariat Court that the above entitled appeals have been preferred to this Court.
3. It has been contended by Ch. Muhammad Azam Khan, the learned counsel for Tasleem Akhtar and others, that the Shariat Court has extended the concession of bail to the accused persons on the grounds which were not recognized by the law. He has contended that even if it is assumed for the sake of arguments that the accused persons cannot be punished by imposing the penalty of `Qisas' to them or they cannot be convicted for 25 years, it does not mean that the bail should be granted to them, irrespective of the other circumstances of the case. He has contended that in the first instance the Shariat Court was not correct in holding that the punishment of 25 years cannot be awarded to the accused persons. He has submitted that such a punishment can be awarded as a `Tazeer' under section 302(c) of APC as has been held in a case reported as Ghulam Hussain and another v. The State NLR 1993 Criminal 203. The learned counsel has further argued that as the affidavits alleged to have been sworn in by some of the eye-witnesses were not produced in the Shariat Court and even otherwise the same could not be considered as having been not produced by the concerned witnesses in this Court; rather the same were produced before the Assistant Registrar Supreme Court by the accused persons. The learned counsel has relied upon an authority reported as State v. Muhammad Nisar Khan and 2 others 1985 PCr.LJ 1546 in support of his contention.. The learned counsel has further argued that in bail matters authority in one case is hardly helpful in other cases which have their own peculiar circumstances. He has also submitted that question of cancellation of bail is to be viewed from altogether a different angle than the question of allowing the bail in a criminal case. He has supported his contention by submitting an authority reported as Mir Zaman v. The State 1994 SCR 11. In alternative, the learned counsel submitted that the accused persons are liable to be punished for 14 years rigorous imprisonment under section 311 of APC. He has stressed that mere fact that an accused may not be awarded capital punishment of `Qisas' or he is not going to be awarded penalty lesser than 25 years, does not justify the concession of bail without considering the other circumstances of the case. The learned counsel referred to expression 'brutal manner' appearing in section 311 APC and contended that the accused persons can be awarded punishment of 14 years as stipulated under the said section.
4. In reply, Mr. Abdul Majeed Mallick, the learned counsel for the accused-respondents, contended that the accused-respondents have been falsely implicated. He has particularly referred to the affidavit produced in this Court which is purported to have been sworn in by some of the eye- witnesses and statement of Zulfiqar Muhammad, who was declared as hostile by the prosecution.
He has contended that according to the statement of Zulfiqar, P.W., and deposition made in the said affidavit the incident was denied to have been seen by the aforesaid witnesses. The learned counsel went on to argue that the deceased went to the police station and brought police after the registration of case regarding the incident which allegedly took place on 13-9-2001. When Muhammad Arif, deceased, reached the place of occurrence along with police; he got down from the vehicle whereas police proceeded towards the house of the accused- respondents. Meanwhile, someone fired from outside the public call office and the deceased was injured. According to him this was a blind murder and the false accusation was.Levelled against the accused persons due to enmity between the parties. The learned counsel has submitted that in the instant case only the punishment of `Diyyar could be awarded and not the punishment of imprisonment under sections 302(c) or 311 of A.P.C. He has stressed that keeping in view the phraseology used in section 311, A.P.C., the punishment of 14 years could not be awarded to the accused-respondents. The learned counsel has also submitted that in view of the dimension of the bullet injuries found on the person of the deceased, it cannot be said that all those were caused by kalashinkov. In the estimation of the learned counsel for the respondents those were caused by different fire-arms in view of their nature. The learned counsel has referred to the following authorities in support of his contention:-- ' In case reported as Aftab Ahmed v. The State 1999 SCR 519, it has been observed that while refusing or granting bail, the Court has power to make a tentative assessment as to whether in the particular circumstances of a case the punishment of death or transportation for life can be awarded to an accused person and if the Court comes to the conclusion that such a punishment may not be ultimately awarded to an accused person, he may be released on bail.
' In case reported as Syed Saadat Hussain Shah v. The State and another 2002 PCr.LJ 535 prosecution witnesses of recovery, who made charge against the accused after one month and eight days, subsequently resiled from their statements by filing affidavits. It was held that in the circumstances of the case the recovery made could not reasonably lead to the hypothesis of the guilt of the accused person. The concession of bail was given to the accused person in the aforesaid circumstances.
' In case reported as Muhammad Miskeen v. Muhammad Ayub 1992 SCR 379, it has been held that discretion exercised by the Shariat Court in bail matters cannot be interfered with by this Court unless it is shown that the same was perverse.
5. Sardar Abdul Razzik Khan, the learned Additional Advocate-General, owned the arguments advanced by Ch. Muhammad Azam Khan, the learned counsel for Tasleem Akhtar and others.
6. We have given due consideration to the arguments raised at the Bar. It may be observed at the very outset that at bail stage a minute scrutiny of the incriminating material or prosecution evidence is not permissible. Even, the statement of Zulfiqar, P.W., who was declared as hostile and the affidavits filed do not help the case of the respondents. The affidavit relied upon by the learned counsel for the accused persons was neither produced before the Shariat Court nor the same were produced in this Court by the concerned eye-witnesses but the same were produced by the accused persons before Assistant Registrar, Supreme Court. Thus, those cannot be considered in view of the authority of this Court cited above. It may also be observed that in the instant case the accused persons were not allowed bail on the ground that prima facie, they were not connected with the commission of offence of murder rather they were bailed out on the ground that one of the heirs of deceased Mst. Sameena Khan had forgone her right to enforce `Qisas' against the accused persons and that punishment of 25 years could not be awarded to them. It may be observed that mere fact that capital punishment of imprisonment for 25 years cannot be awarded to an accused person does not imply that he is invariably entitled to the concession of bail irrespective of the other circumstances of the case, i.e., nature of the offence and the evidence against the accused persons. In the instant case, prima facie, Mazhar Iqbal, respondent, is connected with the commission of the offence of murder of the deceased.
' Therefore, it cannot be said that he cannot be given imprisonment as a `Tazeer' as has been envisaged under sections 311 or 302(c), A.P.C. The learned counsel for the accused-respondents failed to persuade us that punishment of imprisonment cannot be awarded to the said accused.
Even if it is assumed for the sake of arguments that only `Diyyat' is payable to the heirs of deceased who did not compound, it does not mean that accused persons are entitled to the concession of bail irrespective of the other circumstances of the case indicated above. Even in case of punishment in form of `Diyyar , it is not obligatory that an accused person is necessarily released on bail.
7. So far as the role attributed to Sikandar Hayat and Rameez is concerned, they are alleged to have shouted a `Lalkara' in terms that they would not spare the life of the deceased as he entered in the disputed land despite their warning; it has not been alleged that they had any arm with them or inflicted any injury to the deceased. The allegation of `Lalkara' in the aforesaid terms needs further inquiry. Hence, we dismiss the appeal so far as the aforesaid two accused persons are concerned. The case of Mazhar Iqbal, accused, who is alleged to have caused the death by firing at Muhammad Arif deceased in Bazar, prima facie, stands on different footings. Therefore, we set aside the order whereby he was extended the concession of bail by the Shariat. Court. His bail bond and personal bond executed in pursuance of order of the Shariat Court are hereby cancelled. He shall be arrested and confined to the judicial custody forthwith. Appeal partly accepted as indicated above.