' MUHAMMAD REAZ AKHTAR CHAUDHRY, CJ.---Both the above captioned appeals pertain to the one and the same case, therefore, these shall be disposed of through this single judgment.
2. Briefly stated the prosecution case as unfolded in the F.I.R. Is that on 18-1-2002 at 2-45 p.m. The complainant Ishtiaque Asghar son of Muhammad. Asghar, Mehmood son of Muhammad Ayub and Ghalib Shah, were present on the shop of Sajid son of Wali Dad. Meanwhile, Zia Akbar, Imtiaz Akbar, Akbar, Saeed Akbar Sarfraz Akbar son of Muhammad Akbar caste Minhas, residents of Housing Scheme Kotli, Nadeem son of Muhammad Rashid, Waseem son of Muhammad Zaman Butt, Irfan alias Billa, Shehzad alias Shada son of Muhammad Sharif caste Gujjar, Asif alias Poola son of Muhammad Ayub, Farrukh alias Farri son of Raja Abdul Hamid, Javed son of Zafar Iqbal, Abood son of Muhammad Din and Nayab son of Sain Akhtar armed with fire-arm weapons, sticks and dagger came on the shop. Out of the accused, Said Akbar and Sarfraz Akbar started firing with fire-arm weapons for creating harassm ent. All the accused persons opened the attack. The accused, Imtiaz Akbar inflicted injury on the head of Mehmood with a stick, who fell down. Later on he inflicted injuries on the other parts of his body. The accused Zia Akbar inflicted injury on the abdomen of Mehmood with the dagger. The accused Javed inflicted injury on the head of Sajid with the stick and also inflicted injuries on the other parts of his body. When Sajid fell down, then Waseem, Irfan alias Billa and Shehzad son of Muhammad Sharif inflicted injuries to Sajid with the dagger. Abood, Nadeem Butt and Asif inflicted injuries to the complainant with sticks. The accused Farrukh inflicted injury with a dagger on the back of the complainant Ishtiaque Asghar. The accused Nayab inflicted injury with the dagger to Mehmood and also inflicted injury to Sajid. The accused Abood also inflicted injury to Ghalib Shah. The occurrence was witnessed by Sajid son of Wali Dad, Ghalib Shah, Mushtaq Malik son of Karamat Ali and Masood on of Muhammad Ayub.
3. On this report a case under sections 302/452, 324/337, 147/148, 149/332, APC was registered against the accused persons. After the registration of the case the police arrested the appellants, herein and other accused persons. After completion of the investigation, a challan was submitted before the trial Court on 12-12-2002. The appellants moved applications for bail before the trial Court which were disallowed. Feeling aggrieved from the said order, the appellants moved an application for bail before the Shariat Court, which also met the same fate. Now the instant appeals have been filed.
4. The learned counsel for the appellant, Farrukh, Mr. Muhammad Azam argued that no injury to the deceased was attributed to the appellant. The injury to Ishtiaque, P.W., was attributed to Farrukh. It was inflicted on the back of the complainant, which is simple in nature, therefore, it yet requires further inquiry that he was having the intention to commit the murder. He further submitted that prior to this, it was not considered by the lower Court that injury inflicted to Ishtiaque was simple in nature and also not on the vital part of body. He further argued that both the Courts below wrongly declined the concession of bail to the appellant, Farrukh.
5. Mr. Abdul Majeed Malik, the learned counsel for the appellants, Muhammad Waseem, Muhammad Irfan and Shehzad, argued that no injury on the person of deceased was attributed to the appellants Muhammad Waseem, Muhammad Irfan and Shehzad. According to him, the simple injuries on the non-vital parts of the body of witnesses were attributed to the appellants. He further submitted that the statement of a witness, Ghalib Hussain, has been recorded who did not nominate the appellants in his statement. He contended that Ghalib in his statement, at page 37 clearly stated about the appellants that they were armed with sticks, while according to the complainant; they were armed with daggers, therefore, it yet requires further inquiry whether the appellants inflicted injuries with dagger to commit the murder. It was further submitted by the learned counsel that concession of bail has been allowed to the accused persons, who inflicted injuries on the head of Lhe witnesses, which was a vital part of the body, and the concession of bail was not allowed to the appellants against whom the allegation is that they inflicted injuries on the non-vital parts of the body. He submitted that the rule of consistency demands that the appellants may also be ' released on bail.
6. On the other hand, Mr. Reaz Naveed Butt, the learned Additional Advocate-General and Ch. Muhammad Taj Advocate strongly defended the judgment. Ch. Muhammad Taj, the learned counsel for the complainant, argued that all the points which have been taken up by the present appellants were raised before the Shariat Court and the District Criminal Court prior to the present round of bail application and have been resolved, therefore, now bail could not be allowed on these grounds.
7. We have heard the learned counsel for the parties, perused the record of the case and have given our earnest thought to the respective arguments advanced by the learned counsel for the parties.
8. It is well settled principle of law that this Court while considering the bail application shall not embark upon the meticulous appreciation of evidence, but just a tentative assessment of the evidence will be made. If after the tentative assessment of the evidence, it reaches on the conclusion that reasonable ground appears to have been made out against the appellants, that they have committed the offence punishable with the sentence of death of imprisonment for life, then of course the concession of bail shall not be extended to them and if no reasonable ground, appears to have been made out and further inquiry into the guilt is required then the concession of bail shall be allowed to them.
9. It is also pertinent to note that normally this Court does not interfere with the discretion exercised by the lower Court until and unless the same has been exercised arbitrarily or capriciously.
10. In the instant case Mehmood Malik died in the occurrence, while no injury on the person of the deceased was attributed to the present appellants. According to F.I.R. Injury on the back of complainant, Ishtiaque Ahmed, was attributed to Farrukh alias Farri. A perusal of the medical report shows that Ishtiaque Ahmed sustained following two injuries:-- "(1) Incised wound on the left occipital region 2 c.m. In length and 1 c.m. In depth.
(2) Incised wound on left chest back upper aspect 2 c.m. x 1 c.m."
' Both the injuries were simple in nature. The injury attributed to the appellant is on the back of the chest and was simple in nature, therefore, at this stage it could not be said that this injury was caused with the intention to commit the murder. So far as the contention of the learned counsel for the complainant is concerned that this injury was caused with the intention to commit the murder, moreover the case regarding the vicarious liability is established against the appellant has no substance at all, because only one simple injury on the non-vital part of the body is attributed to the appellant Farrukh.
11. It would also not be out of place to mention here that the occurrence took place in the year 2002.
A period of four years has elapsed and the trial could not be concluded. Only the evidence of seven B witnesses has been recorded and the evidence of 18 witnesses is yet to be recorded. It is most unfortunate on the part of the trial Court that the trial could not be concluded by the trial Court within the period of four years and the appellant is behind the bars from the last four years.
12. The allegation against Muhammad Waseem, Muhammad Irfan and Shehzad is that when Javed inflicted injury with the stick on the head of Sajid, he fell down, then Muhammad Waseem, Muhammad Irfan and Shehazad inflicted injuries with the dagger on the person of Sajid. According to the Medical Report, Sajid sustained about ten injuries. The injury on the head was attributed to Javed. The other injuries were attributed to the appellants, which are not on the vital parts of body, while the injury inflicted by Javed is on the vital part of the body. He inflicted injury on the head of Sajid. The concession of bail has been extended to him. Although the difference between the liability of Javed and the appellants is that Javed inflicted injury with the stick and appellants inflicted injuries with the daggers. It is pertinent to note, that it also could not be ignored at the same time that Javed inflicted injuries on the head which is most vital part of the body where the appellants inflicted injuries on the other parts of the body, which are not as vital as head. The concession of bail has been extended to Javed, therefore, the rule of consistency demands that the concession of bail may also be extended to the appellants. It would also be useful to mention here that on the basis of injuries attributed to the present appellants, prima facie it could not be said that they have the intention to commit the murder. If they would have any such intention, they would have inflicted injury on the head, chest or other vital parts of the body. Moreover, they did not inflict any injury which can be considered grievous or dangerous. Although the medical report contained Injury No,7 as dangerous but it was not specifically attributed to a particular accused person. It is pertinent to note that the appellants are under arrest from the last four years and the trial could not be concluded and there is no chance of completion of trial in the nearer future. It is Well settled principle of law that bail should c not be withheld merely on the basis of punishment.
13. So far as the contention of the learned counsel for the complainant is concerned that these points were raised before the District Criminal Court and the Shariat Court prior to the present round of bail application, therefore, now these points could not be agitated before the Supreme Court has no substance at all, because all these points were raised before the Shariat Court but were not raised before this Court. This Court has ample power to allow the bail on the grounds which have been raised in the previous round of litigation before the lower Court and have not been accepted by the lower Court. This Court is not bound by the findings of the lower Courts. Even if some grounds have not been properly considered by the lower Court in a previous round of litigation, even then this Court can allow the bail on those grounds.
14. The upshot of the above discussion is that both the appeals are accepted and the appellants are admitted to bail. They shall be released immediately, provided each of them furnishes the bail and the surety bond in the sum of Rs,10,00,000 to the satisfaction of any Magistrate 1st Class Kotli, if they are not required or involved IE in any other case or offence.