' MUHAMMAD REAZ AKHTAR CHAUDHRY, CJ.---These appeals have arisen out of the judgment of Shariat Court dated 22-6-2006. As both pertain to one and same case therefore these shall be disposed of through this single judgment.
2. The precise facts giving rise to the instant appeals are that a case under sections 324, 448, 147, 148, 149, 337-A (1,2) and 337-F(i), A.P.C. Was sub judice against Masood Ahmed, Asghar, Sajid and Majid and in the District Criminal Court Kotli. The accused moved an application for their bail before the District Criminal Court. The said Court declined to allow concession of bail to them. They filed an appeal before the Shariat Court of Azad Jammu and Kashmir. The said Court vide judgment dated 22-6-2006 declined to allow the concession of bail to Masood Ahmed, while allowed bail to Asghar, Sajid and Majid. Feeling aggrieved from the said order an appeal was filed by Muhammad Riasat for cancellation of their bail, while the other appeal has been filed by Masood Ahmed for obtaining the concession of bail.
3. The case of the prosecution, as unfolded in the F.I.R., is that there was a dispute between the complainant and Masood Ahmed regarding some piece of land. Therefore, Masood Ahmed, Asghar, Shan Muhammad, Majid and Sajid, had enmity with the complainant. On 4-12-2005 the accused, Masood Ahmed, removed stones from near the house of complainant On the next day at 7 a.m. The accused Masood Ahmed came near the house of complainant. The complainant inquired from him, why the removed stones, upon which the accused infuriated and opened attack on him. The accused was armed with a hatchet. He inflicted an injury on the head of complainant, who fell down. After hearing the noise, his brother Rasheed, wife of brother namely Nazir Begum, daughter-in-law. Shamim Akhter, his son Shaukat and one Kramatullah son of Jhaloo, came to rescue him. The accused Masood Ahmed, Majid, Sajid, Asghar and Shan Muhammad were armed with sticks. They trespassed into the compound of house of complainant. The accused Asghar inflicted injury with some sharp-edge weapon on the head of Rasheed. Sajid inflicted injury with brick on the head of Shamim Akhter and also inflicted injuries with a stick on the hands and other parts of body of Nazir Begum. The accused Masood inflicted injuries on both hands of Rasheed. The accused Asghar gave beating with fists and kicks to complainant. The accused Sajid and Majid inflicted injuries with sticks on the heads and other parts of bodies of Karamat Hussain son of Jhaloo and Shaukat s/o Karamatullah. The injured persons were sent to D.H.Q. Hospital Kotli, from where Karamatullah was referred to Pakistan Institute of Medical Sciences Islamabad on the same day. The complainant, Karamatullah, succumbed to the injuries on 7-12-2005 in the hospital.
Therefore, an offence under section 302, A.P.C. Was also added.
4. After completion of investigation, challan was submitted before the trial Court on 1-2-2006. An application for bail was moved by the accused persons. The learned District Criminal Court Kotli vide order dated 20-4-2006 dismissed the application. Feeling aggrieved from the said order, the accused persons filed a revision petition before the Shariat Court of Azad Jammu and Kashmir. The learned Shariat Court vide order dated 22-6-2006 declined the concession of bail to Masood Ahmed, accused, while allowed concession of bail to Asghar, Masjid and Sajid feeling aggrieved from the said order of Shariat Court an appeal was filed by Masood Ahmed for obtaining concession of bail, while the other appeal has been filed by the complainant party for cancellation of bail allowed to the aforesaid accused persons.
5. Mr. Muhammad Azam Khan, the learned counsel for the accused , Masood Ahmed, argued that the learned Shariat Court has wrongly disallowed the concession of bail to Masood Ahmed. The learned Shariat Court has failed to consider that prima facie the facts of the case do not reveal that Masood Ahmed inflicted injury with the intention to commit the murder. He submitted that it yet inquiry whether the appellant was having intention to commit murder. He further submitted that the complainant party was aggressor and the learned Shariat Court has failed to consider this important aspect of the case. Therefore it wrongly declined the concession of bail to Masood Ahmed.
6. While controverting the arguments of the learned counsel for Masood Ahmed, it was argued by Mr. Abdul Majeed Mallick, the learned counsel for the complainant party, that a specific injury was attributed to Masood Ahmed. He inflicted injury with the hatchet on the head of complainant, who died due to this injury. There is sufficient tangible evidence to connect the accused with the offence. No question of further inquiry was involved in the instant case. It was next contended by the learned counsel that even the concession of bail was wrongly been allowed to Asghar, Sajid and Majid. The learned counsel submitted that as far as the case of Asghar is concerned, he inflicted injury with a sharp edged weapon on the head of Rasheed. This version of the prosecution finds corroboration from the medical report. Therefore the Shariat Court has wrongly allowed concession of bail to Asghar. The learned counsel further submitted that the accused Sajid and Majid also facilitated Masood Ahmed for the commission of offence. They inflicted injury to Mst.
Shamim Akhter and Nazir Begum. Therefore they were also not entitled to concession of bail. It was next submitted by the learned counsel that in the instant case the entire evidence has been recorded. Mostly the evidence was recorded when the bail application was disposed of by the lower Court but the learned Shariat Court has not taken into consideration the evidence on the file and has decided the case without considering the evidence recorded by the trial Court. It was next submitted by the learned counsel that it has rightly been held by the District Criminal Court that in this case the trial is being conducted on the basis of day-to-day trial and the trial was almost complete. In such like situation there was no need to dispose of the bail application. The learned Shariat Court has wrongly allowed concession of bail when the trial was complete.
7. While replying the aforesaid arguments, Mr. Muhammad Azam Khan, the learned counsel for the accused party, contended that the injury inflicted on the head of Rasheed is attributed to Asghar but the same was simple. As far the injuries attributed to Majid and Sajid are concerned, those were also simple and on the non-vital part of body of Nazir Begum. Therefore the learned Shariat Court has rightly allowed concession of bail to them.
8. We have heard the learned counsel for the parties, perused the record and have given our most muse to the respective arguments advanced by the learned counsel for the parties. It is well- settled principle of law that this Court while considering the bail application will not embark upon the meticulous appreciation of evidence but just tentative assessment of evidence will be made. If from the tentative assessm ent of evidence an inference can be drawn that the accused has committed an offence punishable with the sentence of death or transportation for life, then of course the concession of bail shall not be extended to him and if the Court reaches to the conclusion that prima facie the offence is not established and it yet requires further inquiry then the concession of bail shall be allowed to him. It is also pertinent to note that this Court Shall not interfere With The discretion exercised by the lower Court unless and until the same has been exercised arbitrarily or capriciously.
9. It flabbergasts us that the learned Judge of the Shariat Court disposed of the bail application on 22-6-2006 when the statements of all the witnesses of prosecution had been recorded. The perusal of interlocutory orders of trial Court shows that on 27-4-2006 the evidence of all the prosecution witnesses had been recorded and the case was fixed for statement of accused under section 342, Cr.P.C. For 28-4-2006. After two months, on 22-6-2006 the learned Judge of Shariat Court disposed of the bail application while it was not proper for him to dispose of the same when the entire evidence had been recorded. He should not have recorded any finding at this stage of the case. It also could not be ignored that the order of learned Judge of Shariat Court shows that he had not considered the evidence recorded by the trail Court and disposed of the bail application simply on the basis of F.I.R. And statement recorded by the police under section 161, Cr.P.C. It wonder-struck us that in Para 8 of the judgment of the Shariat Court, the learned Judge has held as under:- ' "It may be mentioned here that irrespective of the fact that the case was proceeding on day to day basis or otherwise the bail application moved under section 497, Cr.P.C. Had to be decided on merits. The observation made by the trial Court thus runs counter to law and there was no justification to hold the application premature. It appears that the District Court of Criminal Jurisdiction failed to appreciate the law in its true perspective."
10. The aforesaid finding of the learned Judge shows that he was of the view that when once the bail application is moved, it has to be disposed of despite the fact that the trial is concluded or completed. It is obligatory for the Court to decide the bail application first. He has reproduced section 497, Cr.P.C. But it nowhere contains that the accused should be released on bail, rather it contains the words "he may be released on bail". It is entirely the discretion of the Court to allow the bail or not. It is not mandatory for the Court to dispose of the bail application in first at any cost. The law does not convey that where the bail application is moved then it must be disposed of despite the fact that the trial has been concluded. It is to be noted that where the trial is concluded the Courts usually decline to consider the bail application and always prefer that the case should be decided finally so that the lower Courts should not gather any impression from the findings recorded during the disposal of bail application. It is pertinent to note that in the instant case the day on which the concession of bail was allowed by the learned Judge of the Shariat Court on that very day the trial was complete and the statements of prosecution witnesses had been recorded.
The statements of accused under section 342, Cr.P.C. Were to be recorded-. The bail application was moved before the Shariat Court on 22-4-2006 and it was disposed of on 22-6-2006 while the lower Court has concluded trial within the period of 60 days. On the other hand an application for bail also took two months for its disposal in the Shariat Court which is most unfortunate.
11. It is also pertinent to note that in the instant case the concession of bail was declined to Masood Ahmed. As fatal injury E to deceased was attributed to him, therefore, the lower Court has rightly declined concession of bail to him. As far Sajid and Majid are concerned, no fatal injury on the vital part of body was attributed to them, therefore, the concession of bail was rightly allowed to them.
As far the accused Asghar is concerned, an injury with sharp edged weapon on the head of Rasheed was attributed to him which clearly shows that he was having intention to commit murder. Therefore he was not entitled to concession of bail at this stage. The learned Judge in the Shariat Court has wrongly allowed concession of bail to him. Although the entire evidence has been recorded by the trial Court but we would not like to embark upon it so that the lower Court should not be prejudiced. As the trial is complete, therefore, the lower Court is directed to dispose of the case within the period of one month from receipt of this judgment under intimation to Assistant Registrar of this Court at Mirpur. The lower Court shall not gather any impression from the findings recorded by this Court or the Shariat Court.
' The epitome of the above discussion is that the appeal filed by Masood Ahmed is hereby dismissed. The appeal filed by Muhammad Riasat is accepted to the extent of Asghar but the same is dismissed to the extent of other accused persons. Asghar shall be taken into custody forthwith.