Chaudhary Muhammad Taj, J.--The above captioned appeals arise out of a consolidated judgment passed by the Shariat Court on 20.10.2003 as such are disposed of by this common order.
2. The facts are that a case under Sections 302, 324, 337-A/I, 337A/2, 337-F/1, 337-F/2, 427, 147, 148 and 149 APC was registered against the appellants (Criminal Appeal No, 69 of 2003), respondents (Criminal Appeal No, 58 of 2003) and other accused persons (not before the Court). Out of them, nine were released under Section 169 Cr.P.C. while two other accused persons who were found innocent were left at the discretion of the trial Court. The accused-appellants and respondents applied for their bail which was declined to the appellants while respondents were allowed bail through two orders by the trial Court. The appellants have filed their appeal for grant of bail while the complainant has also filed appeal for cancellation of bail allowed by the trial Court and the order upheld by the Shariat Court.
3. The First Information' Report was lodged by Muhammad Siddique, complainant, at Police Station Khuiratta at 10:00 a.m. It was stated that on 27.8.2000 at 6:30 a.m. the accused Haq Nawaz, Muhammad Javed, Younas s/o Allah Dad, Matloob, Abrar, Aras, Imtiaz, Wajid alias Gag, Khalid, Khizar, Saat, Raja Zulqarnain, Raja Ishfaq, Raja Mushtaq, Shabbir Khan, Salem Khan, Ghulam Ras000l, Shoukat, Younas s/o Mouladad, Zubair, Raja Khalid, Arshad, Mazhar, Sarfraz, Asghar, Raja Muhammad Ayub and Raja Muhammad Afzal started construction over a disputed piece of land.
The complainant alongwith Zafar Iqbal, Muhammad Saeed, Gulraiz, Muhammad Rashid, Ghulam Rasool, Mudasar, Shakir, Muhammad Akram, Muhammad Pervez, Shabbir and Muhammad Sharif asked them not to raise construction whereupon the accused party launched an attack on them.
Accused Persons Nos, 1 to 3 killed Zafar Iqbal, Muhammad Saeed and Gulraiz respectively through firing while accused persons 4 to 11 inflicted grievous injuries to Rashid, Ghulam Rasool, Mudassar, Shakir, Muhammad Akram, Pervez, Sharif and Shabbir by the fire-arms with an intention to kill them.
Respondent No, 12 was instigating the other accused persons to kill the deceased persons and injured persons. Accused Nos, 14 and 18 to 21 besides firing shots were also raising `lalkara' while the other accused were also firing. The occurrence took place with the connivance of Accused Nos, 3, 26 and 27 namely Raja Muhammad Younus, Raja Muhammad Ayub and Raja Muhammad Afzal.
4. After investigation the case was challenged before the District Court of Criminal Jurisdiction, Kotli, where Appellants Nos, 1 to 5 applied for their bail which was declined and a revision filed with the Shariat Court also met the same fate. The respondents in Criminal Appeal No, 58 of 2003 through two applications, one filed for pre-arrest and the other after.arrest bail, through two orders dated 15.10.2002 and 27.1.2003 were granted bail. Those orders were further challenged by the complainant before the Shariat Court of Azad Jammu and Kashmir through two revision petitions which were dismissed vide consolidated order impugned herein.
5. Mr. Abdul Majeed Mallick, the learned counsel representing the appellants in Criminal Appeal No, 69 of 2003, raised following points in support of the appeal:--
(i) That there was no prima facie case existing against the appellants;
(ii) that the complainant party was aggressor as they assembled for criminal intention to possess the `Shamilat deh' land comprising Survey No 654 in possession of the accused and started construction over there. The fact is clear from the prosecution evidence and other material collected in this regard.
It was emphasized that the prosecution has admitted in key note No, 1 of the site-plan that construction was raised by Zafar Iqbal, a member of the complainant party. The learned counsel referred to the record of right and Khasra-girdawari' showing the possession of accused; (iii)that the complainant party consisting of persons who come from three different tehsils and there was no occasion for their presence except assembling in consequence of pre-concert and planning at the place of incident to forcibly occupy the land in question and raise construction by force;
(iv) that the First Information Report was lodged after start of investigation. The statements of the prosecution witnesses were recorded long after the occurrence;
(v) that the complainant involved 27 persons with the specific allegation, out of them 11 accused persons were declared innocent by the Investigating Agency therefore a doubt arises that the prosecution story was false and doubtful; (vi)that except Appellants Nos, 1 and 2 none else is attributed to have caused injuries to any deceased person and other accused have been alleged to have cause injuries to the witnesses without any specific allegation as to who caused to whom;
(vii) that according to the key notes the accused persons are shown to have fired with their fire- arms from a distance of nearly 60 feet whereas the injuries show that the fires were shot from a close range for being shown a burn therefore it can safely be inferred that in such a crowed it was not possible to give such specific detail of allegation apart from the fact that medical evidence contradicts the prosecution version; (viii)that the trial Court and the Shariat Court have failed to exercise lawful discretion while disallowing bail to the accused-appellants.
6. Ch. Ali Muhammad, the learned counsel, who appeared on behalf of the complainant and Sardar Abdul Razzik Khan, the learned Additional Advocate-General representing the State, opposed the contentions of the learned counsel for the appellant on the following grounds:--
(i) That there is a very strong prima facie case disclosed against the accused-appellants and other accused who were alleged to have killed three persons at the spot and seriously injured eight persons. The prosecution story is supported by the prosecution witnesses and other incriminating material which included the medical reports, post-mortem reports and recoveries etc.; (ii)that Appellants Nos, 1 and 2 were alleged to have injured to deceased persons resulting their death in consequence of firearm injuries while other three accused-appellants were specifically alleged to have caused injuries to the prosecution witnesses with fire-arms causing dangerous injuries at the vital part of the body; and (iii)that the detailed merits on the basis of the arguments calculating the distance of accused and deceased are not gone into at this stage of the case as such the arguments built on those conclusions are without any substance.
7. Ch. Ali Muhammad, the learned counsel representing the complainant in other appeal (Criminal Appeal No, 58 of 2003), also pressed his appeal for cancellation of the bail allowed by the trial Court and the order maintained by the Shariat Court in revision. The learned counsel argued that all the accused persons were nominated in the First Information Report who were armed with lethal weapons and also participated in the occurrence as such were not entitled to the concession of bail, therefore, orders passed by the trial Court for grant of their bail and the order passed by the Shariat Court upholding the order of the trial Court were against accepted law. There was a stay order issued by the Court of law in relation to the land in dispute and the complainant party assembled to ride on a wagon to attend the hearing of the case.
8. Mr. Abdul Majeed Mallick also addressed the arguments while defending the order of bail allowed in favour of respondents (Criminal Appeal No, 58 of 2003) on the grounds that no specific allegation is attributed, therefore, the matter is of further probe particularly when on the similar allegation the accused were released under Section 169 Cr.P.C. It was also maintained that the bail was granted by the trial Court and the order was upheld by the Shariat Court. The weight has to be given to the verdict of the trial Court.
9. We have heard the learned counsel for the parties and also gone through the record. In the present case in all 27 accused persons were nominated. Out of them, 11 were declared innocent as such nine were released under Section 169 Cr.P.C. and two were left at the discretion of the trial Court. The accused, appellants and respondents, applied for their bail before the trial Court. The respondents in complainant's appeal (now Respondents Nos, 1 to 9), were allowed anticipatory bail and the other respondents were allowed after arrest bail. The orders were challenged through two revision petitions while the appellants in Criminal Appeal No, 69 of 2003 also challenged the order for refusing bail to them. The learned single Judge in the Shariat Court dismissed all the three revision petitions through a consolidated order as such maintained the order of allowing bail to the respondents in Criminal Appeal No, 58 of 2003 and also upholding the order of declining bail to the appellants.
10.While considering a bail matter of an accused involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released, on bail under the case is covered by any of the provisos maintained under sub-section (1) of Section 497 Cr.P.C. But if it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into this guilt, the accused shall be released on bail under sub- section (2) of Section 497 Cr.P.C. It may also be stated that the matter of pre-arrest bail has to be dealt with in accordance with the conditions laid down by the superior Courts from time to time in addition to the conditions laid down under Section 497.Cr.P.C. The most essential of them are that the intended arrest would be tainted with mala fide and it must be established that the accused- appellant apprehends his arrest on account of ulterior motive or the prosecution is motivated by malice as to cause irreparable injury to his reputation and liberty and police is motivated on political consideration or other ulterior reasons. The extraordinary jurisdiction of anticipatory bail which has the fact of diverting the normal course of law, has to be exercised with caution.
11.The first question to be considered is whether the Court can assess the incriminating material and evidence brought by the accused or there are restriction on Court's power to assess the evidentiary value of the material placed before it. The leading case on the subject is that of Khalid Saigol vs. The State [PLD 1962 SC 49] wherein the Court consisting of Mr. Justice A.R. Cornelious, C.J., Mr. Justice B.Z. Kaikaus, J. and Mr. Justice Hamoodur Rehman, J. pronounced the judgment as follows:-- It will be observed that even under Section 497(1) in the case of an offence punishable with death or transportation for life and mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of all 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 it the materials placed' before it by the Investigating Agency and be prima faice 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."
12. In another case titled Manzoor & 4 others vs. The State [PLD 1972 SC 81], Mr. Justice Sajjad Ahmed Jan, J., (as he then was), observed that the power conferred by Section 497 Cr.P.C. is not arbitrary power. It has to be exercised by reference to material placed before the Court and as to what that material should be. That material would consist of accusation made in the report made to the police, nature and credential of evidence which the prosecution proposes to lead in the case and all other relevant circumstances surrounding the occurrence. The other relevant circumstances would include the evidence by the accused and bail has to be allowed or rejected on the basis of this material.
13. Before dealing with the question of grant of bail to the accused-appellants and that of cancellation of bail granted by the trial Court, it would be important to notice the following important features of the prosecution case arising out of it:--
(i) That the incident took place in relation to a dispute about `Shamilat deh' land comprising Survey No, 654 which, according to the record, prima facie is shown in the possession of the accused;
(ii) that it was claimed by the counsel for the complainant that a stay order was issued by the Court of law in relation to aforesaid land but the challan carrying the incriminating material does not show except a bare assertion in the First Information Report. Ch. Ali Muhammad, the learned counsel, though produced a copy of the stay order at the time of arguments showing the stay order for a part of the disputed land but that prima facie has no significance in view of not the same part of the challan; (iii)that 11 accused persons were declared innocent by the Investigating Agency against whom similar allegations were attributed which were alleged to the accused either appellant or respondents in cross appeals; (iv)that according to the site-plan particularly key note No, 1 prepared by the Investigating Agency, prima facie, it shows that it was Zafar Iqbal deceased who was shown raising construction over the land in dispute and his dead-body was also found near the room constructed therein in the said `Shamilat deh' land;
(v) that all the accused persons are nominated in the First Information Report. The prosecution story is supported by the prosecution witnesses and it is also alleged that three persons in consequence of the incident were killed and eight received injures;
(iv) that except appellants herein all other accused are not specifically shown to have caused injuries to any member of complainant party; and
(vii) that all the respondents in complainant's appeal were allowed bail by the trial Court and affirmed by the Shariat Court.
14. Firstly, we would like to deal with the question of grant of bail prayed for on behalf of the appellants. The appellants were declined bail by the trial Court as well as by the appellate Court on the grounds that all the accused were specifically nominated in the First Information Report. They were attributed specific allegation of causing fire-arm injuries on the vital part of the body of the members of the complainant party and two of them succumbed tope injuries while others were seriously injured in view of the aforesaid firing. Since we have to assess the evidence tentatively though we cannot pass an order, in vacuum but all the same we cannot enter into the detailed merits on which the learned counsel representing the appellants relies upon.
15. So far as the question of bail to these accused-appellants is concerned, we agree with the learned Judge in the Shariat Court that they are not entitled to the concession of bail for the following reasons:-- That there is a specific allegation against them that they accused fire-arm injuries to two persons from complainant party who were killed and also other three persons were seriously injured receiving fire-arm injuries on their vital part of the body by other three appellants. Therefore, prima facie, they are connected with the offence charged against them and there appear reasonable grounds for it. The point raised by Mr. Abdul Majeed Mallick, such as (i) the complainant party being aggressor for forcibly taking over possession of the land in ownership and possession of the accused, (ii) nature of injuries contradicting the prosecution version by showing burns and thus indicating to have been caused by a close range and (iii) the allegation disproving against some of the accused in the similar circumstances. When seen in the light of allegations, we are unable to agree with the learned counsel as the same would touch the detailed merits of the case which would not be permissible particularly when we see the accumulative effect.
16. However, the case of other accused who are respondents in the cross-appeal is distinguishable from the appellants and thus is of further probe for the following reasons:--
(i) That no specific allegation of causing injury to any particular injured person is alleged to any accused out of the respondents therefore in the circumstances when large number of persons, as many as 27, are involved, the participation of each accused requires further probe;
(ii) that the question of vicarious liability should not be deeply examined at bail stage whether or not the respondents shared common intention requires further inquiry. Reliance in this regard is placed on a case reported as Muhammad Nawaz etc. vs. The State [1981 P.Cr.L.J. 1232] where it was held:- "It transpires from the perusal of the record that the deceased was not hit by the petitioners: only the P.Ws. namely Khan Zaman, Noor Khan and Muhammad Khan suffered injuries at their hands.
These were however declared simple. I am inclined to agree with the petitioner's learned counsel that the question of vicarious liability should not be deeply examined at the bail stage. Whether or not the petitioners shared the common intention to commit murder of Mst. Alam Khatoon deceased and launched a murderous assault on P.Ws. is a matter, which needs further inquiry. The case apparently falls within the purview of sub-section (2) of Section 497, Cr.P.C."
(iii)that after considering the facts and circumstances the accused-respondents were allowed bail by the trial Court and the weight has to be given to the opinion of the trial Court, more so when the order has been upheld by the First Appellate Court. It may also be added that we do not see that the order is arbitrary or capricious in any manner. Reference is made to a case reported as Muhammad Yunus and another vs. Malik Muhammad Nawaz and 5 others [1997 SCR 125] where it was held as under:-- "In cases of non-bailable offences coming before the Court for grant of bail is primarily in the discretion of the Court and it should not be disturbed unless it is not exercised with due care and caution. The only limitation on exercise of that discretion, apart from the legal restrictions contained under Sections 497 and 498 Cr.P.C., is that the exercise of such discretion must be in accordance with the dictates of justice and not arbitrary or fanciful. The view of the learned Sessions Judge as well as the High Court always carries weight unless it is shown to be perverse or based on a view which no reasonable man will take. Thus while interfering with the order of grant of bail there should be some strong ground, as for instance, that order is perverse or manifestly wrong."
(iv)that the accumulative effect of all other points raised by Mr. Abdul Majeed Mallick, in relation to possession of the disputed land shown with the accused and complainant party according to the accused taking forcible possession requires further probe. Reference is made to a case titled Muhammad Bashir and another vs. The State [PLD 1983 SC (AJ&K) 8] where it was held:-- "12. Let us now determine the issue. The prosecution has placed on record a copy of the Whasra Girdawari' wherein at the relevant time of occurrence Jan Muhammad, one of the accused, is also shown to be in possession of a portion of the joint land. In these circumstances it still remains to be determined by the trial Court, as rightly held by the learned single Judge, that the scrutiny of copy of Khasra Girdawari, and site-plan, raised many questions which the prosecution has yet to prove to bring home the change of offence levelled against the accused-petitioner, and we fully subscribe to this view.
13. The question naturally arises whether in view of these circumstances appellants are entitled to be released on bail. It is the basic principle of law that the bail is not to be refused as a punishment merely on the allegations that a person has committed an offence punishable with death or transportation of life unless reasonable grounds appears to exist to disclose their complicity. The wisdom behind it is that if an accused in view of the circumstances of a given case is finally acquitted how can he be compensated for his detention, in the judicial lock up during the trial.
Therefore, the law allowed concession of bail to such a person of course pending further enquiry into this guilt."
16. In view of the above, both the appeals are found to have no substance in them as such are dismissed.