' KHAWAJA MUHAMMAD SAEED, C.J.---Supra titled appeals have been filed against the same judgment of the Shariat Court dated 25-11-2005, therefore, these shall be disposed of through this consolidated order.
2. Criminal Appeal No,4 of 2006, filed by Muhammad Ilyas against Muhammad Razzaq and others, seeks cancellation of bail allowed to the accused-respondents on the ground that on 19-11-2004 accused-respondents who were 12 in number while proceeding to Kotli and passing nearby the house of the complainant attacked on complainant Muhammad Ilyas, Muhammad Habib and Muhammad Nasim and beat them with sticks and stones resultantly all the three received various injuries. The matter was reported to the police by the complainant on the same day at 5:00 p.m, and a case under section 337-F (V), 337-A (1) and 337-A (3) was registered against accused persons at Police Station Kotli vide FIR No,482/2004.
3. The accused-respondents in Criminal Appeal No,4 of the 2006 moved an application for interim bail before the District Court of criminal jurisdiction, Kotli which was initially granted on 6-1-2005 and subsequently was confirmed on 16-2-2005. The appellant filed a revision petition before the Shariat Court on various grounds but the same was dismissed vide judgment under challenge dated 25-11-2005'.
4. In second Criminal Appeal No,5 of 2006 filed by Muhammad Ilyas against Mazhar Hussain and another, the accusation against respondents is the same. These accused-respondents moved an application for bail after arrest before the Tehsil Court of criminal jurisdiction, Kotli. The trial Court allowed them concession of bail in the same case. The appellant moved an application before the District Court of criminal jurisdiction, Kotli seeking cancellation of bail of accused-respondents but the said Court refused to interfere in the bail order passed in their favour by the trial Court. A revision petition was filed before the Shariat Court which was also dismissed. Hence, this appeal.
5. Muhammad Razzaq is complainant in the cross-cases. He has different versions about the incident which took place on 19-11-2005. He moved a written complaint against Muhammad Ilyas and others alleging therein that the accused persons on 19-1-2005 at 9-30 a.m. Armed with fire- arms entered into his house with a set plan and attacked the inmates. Resultantly the inmates of the complainant party received injuries. The matter was reported on the same date at 10:30 a.m. To the police and a case under sections 324, 452, 147,148, 149 and 337 APC was registered against the accused-respondents at Police Station Kotli vide F.I.R.No,456/2004. In the case which was registered on the complaint of Muhammad Ilyas, one of the accused persons. Ibrar Hussain, has been denied the concession of bail, therefore, he has also filed Criminal Appeal No,57 of 2005 seeking his release on bail by setting aside the ordes of the Courts below.
6. Muhammad Razzaq has filed Criminal Appeal No,62 of 2005 for the cancellation of bail granted by the Courts below and maintained by the Shariat Court to Haider Zaman and Habib, accused- respondents.
7. It is pertinent to mention here that the orders whereby initially bail way refused to accused persons by the trial Court in cross-cases were not challenged by them before the next higher forum. After sometime, accused persons of both cases again approached the trial Court and second time they were granted bail. Both the complainants in their appeals have alleged that after refusing bail the Tehsil Court of Criminal Jurisdiction, Kotli was not competent to allow bail to the accused persons as now new grounds had become available to them but this question has not been properly considered by the Courts below.
8. Both the complainants have alleged that the accused mentioned by them in the F.I.Rs, had attempted to kill them, therefore, their case falls within the prohibitory clause of section 497, Cr.P.C.
As such the bail order passed in their favour is against law. The point raised in the appeals were pressed by them during the course of arguments.
9. The case of Ibrar Hussain who has been refused bail in this role is identical with that of other accused persons. According to him it is alleged that the inflicted injuries on the leg of the complainant and due to that injury his leg was broken. This role was not attributed to him in the F.I.R. Which was filed with police on 20-12-2004 at 5-00 p.m. In the presence of cross-case. The same was recorded in police diary after a period of one month in which this attribution has been made to trim on the statements of some prosecution witnesses who were inimical to him, therefore, on the basis of principle of consistency as in his case accusation was at par with the other accused persons who were granted bail he should also have been released on bail. The learned counsel for the complainant seeking cancellation of bail granted to accused-respondents in cross-cases has raised same grounds which were incorporated in the memorandum of appeal.
10. The Court while considering the bail matter has tentatively look into the facts and circumstances of the case and once it comes to the conclusion that no reasonable grounds exist for believing that the accused persons have committed a non-bailable offence it has got ample powers to release such accused persons on bail. For its satisfaction the Court has to look into the allegations made in the F.I.R., statements recorded by the police under section 161, Cr.P.C. And other incriminating material against the accused persons along with the plea of the accused persons.
No doubt the nature of the gravity of the charge and a degree of punishment which might follow in the circumstances of the case are to be taken into consideration. In these cross-cases all the Courts below, after taking into consideration the record of the case, have rightly allowed bail to the accused-respondents whose bail orders have been challenged in this Court through appeals.
11. The considerations for cancellation of bail are different from the considerations for grant of bail.
In our view the learned Shariat Court has rightly maintained the bail granted to the accused- respondents. This Court does not disturb the tentative view of the Courts below in bail matters, if the same is justified in the light of the record of the case. In exceptional cases where the jurisdiction is not properly exercised keeping in view the principles of bail, only then this Court would interfere.
In both the cases, as said earlier, bail was rightly allowed by the Courts below to the accused persons, therefore, there is no justification for the interference of this Court. Criminal Appeal No,4 of 2006 filed by Muhammad Ilyas against Muhammad Razzaq and others and Criminal Appeal No,63 of 2005 filed by Muhammad Razzaq against State and others are therefore, hereby dismissed.
12. Now, there remains Criminal Appeal No,57 of 2005 filed by Ibrar Hussain. His case is that about the same incident the parties have different versions and two cross-cases on the report of the complainants Muhammad Ilyas and Muhammad Razzaq have been registered under various provisions of the penal laws and all the accused persons in both the cases have been sent to face trial before the Tehsil Court of Criminal Jurisdiction, Kotli. No specific role was attributed to him in the F.I.R. However, subsequently a specific role was attributed to him. Both the parties have received injuries and, as stated earlier, cross-cases have been registered against both of them. In these circumstances it is yet to be determined which party was actually at fault. There is every likelihood that in fact between the parties a free fight took place. In these circumstances, in our view, as the same role was given to Ibrar Hussain in F.I.R. Which was given to other accused persons, therefore, he should also have been allowed bail by following the principle of consistency.
To the extent of this appeal, in our view, the principle governing bail matters was not properly considered by the Courts below including the Shariat Court while passing the order under challenge dated 25-11-2005.
13. On account of these reasons, the order of Shariat Court dated 25-11-2006 to the extent of accused Ibara Hussain is set aside. Ibrar Hussain appellant is allowed bail subject to furnishing of one surety in the sum of rupees one lac with a personal bond in the like amount to the satisfaction of any Magistrate 1st Class Mirpur/Kotli. If the needful is done, he shall be released forthwith otherwise shall remain in the judicial lock-up.