' KHAWAJA SHAHAD AHMAD, J.--- The instant appeal has been filed against the judgment of the Shariat Court of Azad Jammu and Kashmir recorded on 25-5-2006 and announced on 29-5-2006.
It has been prayed by the appellants that as the judgments recorded by the Courts below are bad in law and subject to reversal, the appellants be enlarged on bail on the grounds enumerated in the memorandum of appeal.
2. The case of the appellants is that on the statement of complainant Muhammad Arshad, respondent No,2, on 27-1-2001 a case was registered at Police Station Kotli under sections 302, 324, 337-A, 458, 34, Azad Penal Code. After completion of investigation the appellants with three others through Challan No,51 were sent to stand trial in the District Criminal Court Kotli. When they applied for their release on bail and while the bail matter was pending before the Court. Police filed a Challan about the same occurrence against one Muhammad Arshad son of Ali Dad and two others. The appellants moved a transfer application before the Shariat Court as their bail application was not decided. A learned Judge of the Shariat Court while hearing the transfer application under section 561, Cr.P.C. Discharged all the accused persons including the appellants on 30-7-2002 on the ground that a new Challan of the occurrence has been presented in the trial Court. The complainant respondent No,2 assailed the order of the Shariat Court, dated 30-7-2002 through an appeal before the Supreme Court which was accepted on 2-7-2003 and the appellants were arrested. According to the case of the appellants, the concerned agency again entered into investigation of the case and under the supervision of S.S.P. a team was constituted which also came to the conclusion that Muhammad Akbar, deceased, was murdered by Muhammad Arshad son of Ali Dad and others and the present appellants and others were innocent. The prosecution presented a subsequent Challan on 4-4-2005 in the trial Court. When this new Challan was submitted in the Court on 4-4-2005, the appellants filed a fresh bail application on 19-8-2005 before the District Criminal Court Kotli which was rejected by the said Court on 7-9-2005. The 'appellants filed a revision petition against the judgment dated 7-9-2005 before the Shariat Court on 28-9-2005 which was also rejected through an order recorded on 25-5-2006 and announced on 29-5-2006. The appellants through their counsel disputed the order recorded by the lower Courts and prayed for release on bail on manifold grounds to be attended to hereinafter in this judgment.
3. As against it, the case of the complainant which has been narrated in the First Information Report is that on 26-1-2001 at about 2-30 late in the night he along with his wife was sleeping in a room when somebody knocked at their door but he did not open it and after some time the door of another room, where his father was sleeping, was knocked by someone on which his father, deceased Muhammad Akbar, opened the door of his room. As soon as the door was opened firing started with the result that the shots hit his father in the chest. When the complainant opened the door there were three armed persons who ran away and the complainant tried to catch hold of them on which one of the accused fired at him with a .30 bore pistol, which hit him in the left hand and. Left thigh; resultantly, he fell down. The occurrence was witnessed by his wife, mother, brothers and sisters. The accused persons by scaling on the roof of the house ran away. They left behind two Chaadars. When the complainant and his father were being shifted to the hospital, his father succumbed to injuries. He, in his First Information Report, categorically named one Muhammad Fazil son of Badar Din and Mushtaq son of Muhammad Fazil. He alleged that he and his family have enmity with these persons. He suspects that the murder was committed by these persons on account of enmity with the complainant and his family. The report was lodged at 3-45 a.m. On 26- 1-2001 and ultimately the accused including present appellants were sent to stand trial for murder of Muhammad Akbar, father of the complainant.
4. The present appellants moved an application for release on bail but the same was dismissed.
On 19-8-2005 the appellants filed another application for grant of bail which was dismissed on 7- 9-2005 and a revision petition against it was also disallowed by the learned Judge of the Shariat Court vide his order, dated 29-5-2006.
5. The learned counsel for the complainant while praying for dismissal of the instant appeal mainly relied upon the finding recorded by this Court in the earlier round of litigation in this case and also prayed for rejection of bail on the ground that as no fresh material has been brought on record they are not entitled to be released on bail.
6. The case in hand is one which has consumed more than 7 years and unfortunately could not finally be decided by the trial Court till now and the parties are litigating on points of bail 'etc. Only.
The case is under-trial in the trial Court. Before discussing the merits of the case on the points of bail it appears proper to summarize the facts of the case. A thorough study of the application and decisions made in respect of bail reveals that respondent No,2, who is complainant of the case of murder of his father, filed an F.I.R. At about 2-30 a.m. On 26-1-2001 at Police Station Kotli wherein he named both the appellants herein and three others for the alleged commission of offence under sections 302, 324, 337-A and 458/34, A.P.C. After completion of the investigation, Challan No,51 was submitted in the District Court of Criminal Jurisdiction, Kotli on 10-3-2001. The prosecution among others named Muhammad Arshad, Mst. Mehfooz Jan, Mst. Farzana, Muhammad Anwar and Mst.
Saima, all members of the family as witnesses. The trial Court after recording statements under section 242, Cr.P.C. And after denial of allegations by the accused persons proceeded with the trial of the case. It appears from record that after some time Muhammad Arshad son of Ali Dad was apprehended by the police in connection with some other case with connivance of the accused and local S.H.O. Police Station, Kotli, who after applying severe torture and coercion succeeded in getting statement from him that he committed the murder of Muhammad Akbar and injured the complainant. His confessional statement was recorded by a local Magistrate on 23-4-2001 and on the basis of this confessional statement a subsequent Challan was filed in the District Court of Criminal Jurisdiction Kotli on 17-4-2001. The present appellants and others, who were in custody, moved another application for bail on the strength of subsequent challan but before the trial Court could pass any order on the application for release on bail a transfer application was moved before the Shariat Court on the ground that the learned Qazi refused to hear the bail matter on the ground that the other member of the Court was not present on 27-8-2001 when the bail matter was to be taken up. The transfer application was moved before the Shariat Court on 1-8-2001 on the ground that the learned District Qazi was not dealing with the case fairly and impartially, therefore, their case may be transferred to some other Court of competent jurisdiction. The learned Judge in the Shariat Court while treating the transfer application as an application under section 561-A read with sections 497 and 498, Cr.P.C. Ordered the release of accused person including the appellants, herein, on 8-8-2001 mainly on the ground that the subsequent Challan has been filed against some other persons, therefore, the first set of accused persons were liable to be set at liberty. It may be mentioned here that this judgment of the Shariat Court was not at all legal as far as the provisions governing the grant of bail or cancellation of Challan provided by the Criminal Procedure Code are concerned. Respondent No,2 filed an appeal against the order of the Shariat Court dated 8-8-2001 in the Supreme Court through Appeal No,19 of 2001. After detailed survey of facts and law a Division Bench of this Court consisting of two former Chief Justices namely Mr. Justice Sardar Said Muhammad Khan and late Mr. Justice Muhammad Younas Surakhvi, who was a Judge at the relevant time but on the retirement of Mr. Justice Sardar Said Muhammad Khan was elevated to the top judicial office of the Chief Justice, while accepting 'he appeal against the order of the Shariat Court dated 8-8-2001, proceeded to issue non-bailable warrants for taking the present appellants others in custody and sent to the judicial lock-up. The Supreme Court remanded the case to the District Court of Criminal Jurisdiction Kotli with a direction that it shall decide in the first instance the question whether to proceed against the accused respondents on the basis of first Challan or the supplementary Challan or both of them simultaneously. In respect of the bail matter it was directed that the same shall be decided by the trial Court keeping in view the material of relevant challan placed on record in accordance with the settled principles relating to the bail matters. This finding of the Supreme Court dated 8-11-2001 is reported as Muhammad Arshad and another v. Muhammad Mushtaq 5 others 2001 YLR 3178.
7. On the basis of above-referred facts dealing with the filing of subsequent Challan, when the matter was placed before the trial Court it rejected the subsequent challan and decided to proceed against the present appellants and others with the result that the appellants and others filed a revision petition before the Shariat Court on 1-4-2002 which was decided by the Shariat Court on 24-6-2002 with the direction that the trial Court shall take cognizance of the supplementary report and record statements of the accused respondents Nos.3 to 6, (accused nominated in the subsequent Challan) under section 242, Cr.P.C. Muhammad Arshad and others, complainant party, filed appeals titled Muhammad Arshad v. Muhammad Mushtaq and others (Criminal Appeal No,10 of 2002) and Kamran Aziz and 2 others v. Muhammad Mushtaq and 7 others (Criminal Appeal No,4 of 2002). This Court through a detailed judgment governing the filing of subsequent Challan and onward proceedings while setting aside the order recorded by the Shariat Court, wherein it was held that proceedings shall continue in both the sets of accused persons, directed that Challan filed against the present appellants shall be taken up as had been decided by the trial Court in its order, dated 31-1-2002. This judgment of the Supreme Court is reported as Muhammad Arshad v. Muhammad Mushtaq and 5 others 2004 MLD 1797. It also reveals from the record that after the arrest of Muhammad Arshad and some other persons in another case the consistent stand of the prosecution has been that Muhammad Akbar, deceased, was not murdered by Muhammad Arshad and others, accused in the subsequent Challan. When this new Challan was still pending in the trial Court, the appellants, herein, moved a new bail application on 19-8-2005 before the District Criminal Court, Kotli, which was rejected by that Court on 7-9-2005 and a revision petition filed by the present appellants before the Shariat Court was also disallowed vide its order, dated 25-4-2006, which judgment has been assailed through the instant appeal, mainly on the ground that the Courts below have rejected the prayer for release on bail on the grounds recorded by this Court on 2-7-2003. In addition it has been contended that the statements of the complainant and other nominated witnesses sufficiently justify that the case before this Court is one of grant of bail to the appellants. In para. 11 sub-para. (iii) of the appeal it has been submitted that the statement of the complainant was recorded by the investigating agency under section 161, Cr.P.C. Twice on 26-1-2001 and 27-1-2001 only after one day. The statement of so-called eye-witnesses Muhammad Anwar son and Mst. Saima, daughter of the deceased, were firstly recorded on 26-1-2001 and for the second time on 27-1-2001. A comparative study of the statements of the complainant and eye-witnesses under section 161,. Cr.P.C. Reveals that they have not seen the occurrence and have tried to improve their previous statement which brings one to the conclusion that the said statements are inconsistent with each other. Another ground taken in the appeal before us and contended at Bar as well, is that the defence has taken a specific plea of alibi from the very beginning and submitted before the investigating agency as well as the Court that on the fateful day the accused were staying at Albadar Hotel in Rawalpindi.
The appellants attached certain vouchers and copy of the entries in the Register of the Hotel. In this respect they also relied upon an affidavit filed in the Court on 9-4-2001 wherein one Abdul Khaliq, Supervisor of the said Hotel admitted the version. The said Supervisor also denied the correctness of his statement recorded by the first investigating agency under section 161, Cr.P.C. He, however, admitted his statement under section 161, Cr.P.C. Recorded by the second investigating agency on 8-7-2001. The appellants also contended in their appeal and through their Advocate that recovery of pistols from the appellants has been changed by the prosecution and some other pistols were sent to the Ballistic Expert, Lahore for examination which creates doubt and is a mala fide action by the prosecuting agency. While relying on the report of the third investigating agency under the supervision of Superintendent of Police, who had declared the appellants as innocent, they attempted to strengthen their case for release on bail. In the estimation of the appellants and their counsel, as the case is one of dark-midnight; the investigating agency being dissatisfied, requested the Incharge of Army Dogs Centre in Rawalpindi to provide trained dogs to trace the real culprits. They also denied enmity with the complainant party and disputed the confiscation of two Chaadars belonging to the appellants from the place of occurrence. While repeating the arguments submitted before the Courts below, the appellants also alleged that the complainant, who alleges him as the eye-witness, has not nominated the appellants as accused in his first statement under section 161, Cr.P.C. Which was recorded on 26-1-2001.
8. During the course of arguments Mirza Muhammad Nisar, the learned counsel for the appellants, while referring to the statement of Muhammad Arshad son of Muhammad Akbar, under section 161, Cr.P.C.- and others including Mst. Saima, daughter of the deceased, bills of Albadar Hotel, affidavit of the Hotel Supervisor and statements of some prosecution witnesses under section 161, Cr.P.C.
And other documents, forcefully contended that the statements of the eye-witnesses are not only contradictory to each other but against the facts alleged by a witness in his first statement before the investigating agency. While referring to the statement of Mehfooz Jan, widow of Muhammad Akbar, recorded by the trial Court on 28-11-2005 and the statement of Muhammad Arshad, complainant, recorded on 10-12-2005 he attempted to substantiate the grounds of bail while disputing the correctness of the prosecution version and prayed for acceptance of appeal and release of the appellants on bail.
9. While controverting the arguments of the learned counsel for the appellants, 'Malik Muhammad Zaraat Khan, the learned counsel for the complainant and the Additional Advocate-General defended the findings of the Courts below mainly on the ground that the points raised in the instant appeal have been taken in the previous round of litigation and adjudicated upon by this Court. In the estimation of the learned counsel the Courts below have not committed any illegality to rely on the findings recorded by the apex Court. In support of their contention they relied on some of the judgments of the superior Courts, particularly the judgments recorded by this Court in this case in, the previous round of litigation.
10. After going through the record of the case and comparative reading of the prosecution witnesses and other facts of the file, we propose to record the finding in respect of arguments advanced by Malik Muhammad Zaraat, the learned counsel for the respondents and the Additional Advocate-General in the first place. Our own study reveals that no bar can be created for an accused to file repeated applications for release on bail, nor can an embargo be placed on the powers of the Court to consider the application for bail at any time till the case remains before the trial Court. It is settled by now that as soon as a fresh material is brought on the record of the Court, the accused can file fresh application. Irrespective of the fact that the bail has been declined by the trial Court or any Appellate Court in the first round of litigation in respect of subject of controversy, therefore, the argument on behalf of the complainant is found devoid of any force and without statutory backing.
11. Now coming to the case of the appellants, Mirza Muhammad Nisar, the learned counsel, by chronological arrangement and placement of facts has attempted to make us believe that the case in hand suffers from material contradictions and different versions of the prosecution story.
This is correct that some of the prosecution witnesses whose'. Statements have been recorded twice or thrice, prima facie, appear to be different from each other and giving impression of improvements. Similarly the complainant and the eye-witnesses are related to the deceased and there is some record relating to stay of the accused party in a hotel on the fateful day but all these grounds cannot be considered at bail stage without probing deep into the prosecution and defence version, which is not allowed at bail stage. Mirza Muhammad Nisar, the learned counsel, knows it well that at bail stage only a tentative assessment of the prosecution story or bird eye view is allowed and that the contents of the F.I.R. Statements of the eye-witnesses under section 161, Cr.P.C. And the defence version have to be considered in proceedings while disposing of the bail applications. On the basis of the arguments of the learned counsel we have to look into the merits of the case and dive deep to determine the effect of the, alleged contradiction in the statements of the important prosecution witnesses which function is still to be performed by the trial Court. This is correct that the impression of improvement in the statements of the eye-witnesses is palpable but at the same time it is correct that right from the beginning the complainant and the eye- witnesses remained consistent on one point that it is the appellants and others who murdered Muhammad Akbar. Our observation about the either side version leaves less for the trial Court to be considered, without being influenced, at the stage of conclusion of trial. We feel convinced to deviate from the practice introduced in some of the judgments that the observations made by an Appellate Court while dealing with the bail matters will not influence the trial Court while recording the judgment in a murder case, particularly when the Appellate Court has categorically held that its findings shall not influence the trial Court. This, in our view, is not only against the settled practice of the superior Courts but definitely is against the human nature. While determining the evidential value of the statements of some of the eyewitnesses recorded by the police twice or more, the probability remains there that the statement of such witness is considered as incorrect, which facts would amount to adjudicate about the validity or truthfulness of the witnesses. Viewed from another angle deep appreciation of evidence at bail stage can possibly amount to finding by this Court which even without recording reasons cannot be contemplated.
12. The argument advanced by the learned counsel for the appellants that oral evidence consists of witnesses who are related with the complainant party cannot be considered at this stage as keeping in view the time and place of occurrence their presence cannot be brushed aside at least at the bail stage.
13. The learned counsel has pleaded the plea of alibi by placing some documents on record prepared by the Supervisor of Albadar Hotel who has still to stand in the witness-box and his evidence has to be considered at the conclusion of trial and during final arguments. At this stage we cannot consider this evidence without determining the correctness or otherwise of it. The same, in our considered view, can affect prosecution or defence version. Same is our view in respect of other documents placed on record and arguments and exemptions taken by the learned counsel for the appellants.
14. The learned counsel for the appellants in the grounds of appeal in para.11 sub-para (x) has vehemently argued that the occurrence being of a dark midnight and there being no eye- witnesses of it, the prosecution requested the incharge of the Dog Centre, Rawalpindi to provide trained dogs to trace the real culprits, which in fact attempted to make us belief that the prosecution story is false and it is a case of unseen occurrence. We cannot agree with the learned counsel simply on the ground that the proposed finding can only be recorded after holding that the eye-witnesses of the case are untrustworthy and the case is one of unseen occurrence, which findings we cannot and will not record in deciding a bail matter. This is correct that in some of the developed countries, particularly the United states of America, there is a Canine Unit of New York Police established for tracing the culprits and even contraband substances but we cannot subscribe to the argument of the learned counsel that the occurrence is not supported by some of the eyewitnesses.
15. We have noted it with concern that the murder case for which the appellants have been arrested could not be concluded by the trial Court after the lapse of a period of over 7 years. So much time cannot be allowed to consume in deciding a murder case. As far the procedure of the trial of murder cases is concerned, it is regulated by Chapter XX of the Criminal Procedure Code as provided by section 28 of the Islamic Penal Laws (Enforcement) Act, 1974. Section 173 of the Criminal Procedure. Code after insertion of subsection (5) provides that the investigating agency while filing a case in the Court has to produce.The proposed witnesses in the Court and the Court is bound to fix specific dates for recording of their statements, so that the trial can be concluded within a reasonable time. It appears from the record that although the parties are themselves involved in delaying the conclusion of trial the same cannot be taken as a ground to be justified by the trial Court. In the interest of justice, therefore, the trial Court is directed to complete and conclude the trial of the murder case within reasonable time and without further delay.
16. The learned counsel for the complainant while arguing placed much reliance on the findings of this Court recorded in this case in early round which, as has earlier been held, cannot bar filing fresh or repeated applications for grant of bail but at the same time while going through these judgments we find that main arguments pressed into service before us have directly or indirectly been dealt with by this Court while recording its finding in early round of proceedings which findings we cannot recall or reconsider.
The upshot of the above discussion is that finding no force in this appeal it is hereby dismissed and the prayer for grant of bail is rejected.