Raja Saeed Akram Khan, J.--Through this criminal appeal the validity of the order passed by the Shariat Court of Azad Jammu and Kashmir on 26.7.2008 has been challenged through which the Shariat Court has granted bail to Accused-Respondent No, 1.
2. The brief facts necessary for the disposal of this criminal appeal are that a case under Sections 302, 324, 337, 147, 148, 149, A.P.C., and Section 13 of Arms Act was registered against the accused- respondent including some others at Police Station, city Kotli on the complaint of Muhammad Anees. It was reported that on 22.8.2007 at about 6.00, p.m. after closing the shop. Dawood Ahmed was going back to home. Muhammad Idress, Tahir Saleem and the complainant, were also accompanying him. When they reached at Sarsawa Chowk Muhammad Razzak, Muhammad Rashid, Muhammad Siddique, Hamid, Sohail, Shafique, Khaliq alias Qari and Abdul Qayyum armed with Kalashnikovs came there. They raised lalkara and opened indiscriminate firing. Muhammad Razzaq fired at Dawood Ahmed and caused injuries at his forehead while Muhammad Rashid accused fired from the right side of the victim which hit him at different parts of his body. He fell down and died on the spot. Muhammad Idress tried to catch hold his uncle, Dawood Ahmed, upon which Sohail Ahmed fired and caused injuries at his back resulting into his death. Meanwhile, Hamid, accused, fired and caused injuries at the right thigh and back of the body of Tahir Saleem.
The complainant tried to stop the accused persons upon which Muhammad Shafique and Abdul Khaliq accused fired and caused injuries at his left leg and he also fell down. Hue and cry and reports of the fires attracted Hafiz Mehboob, Awais Ahmed. Muhammad Jahangir, Muhammad Ashfaq. Shoukat and others, the residents of locality towards the spot and they witnessed the occurrence, The motive alleged was a dispute over a piece of land. The accused, Abdul Khaliq, Muhammad Shafique and Abdul Qayyum moved an application for grant of bail in the District Court of Criminal jurisdiction Sehnsa, camp Kotli. The trial Court dismissed the bail application of the accused. A revision petition was filed by the accused before the Shariat Court. The Shariat Court accepted the bail petition to the extent of Abdul Qayyum, accused-respondent and refused the same to the extent of other accused vide judgment dated 26.7.2008 which is the subject matter of the instant appeal.
3. Malik Muhammad Zarait, the learned counsel for the appellants, has argued that the Courts below have not rightly exercised the discretion while enlarging the accused-respondent on bail.
The accused-respondent was duly nominated in the F.I.R. with a specific role. He argued that the accused-respondent actively participated in the occurrence in the result of which three innocent persons were murdered and the appellant, who is also the complainant of the case, was seriously injured. He, argued that the Courts below failed to take into consideration while granting the bail to the accused-respondent that he was involved in a heinous offence and on his instigation the whole occurrence took place. During the course of investigation, the weapon of offence, i,e,, Kalashnikov was recovered from him and the Court also erred in law while observing that the same was not sent to the Forensic Science Laboratory which amounts to appreciation of the evidence in depth which is not warranted under the, law. He further argued that the Court -below also failed to take into consideration the fact that the accused-respondent remained absconded for more than 6 months which itself was sufficient ground to turn down the bail application. He further argued that the proceedings under Section 87 and 88, Cr.P.C. were initiated against the accused- respondent. He submitted that the conduct of the accused-respondent is also apparent from the record of the trial Court that in spite of lapse of considerable period, the trial has not been concluded as yet due to the delay caused by the accused party. He argued that the Investigating Officer came to the conclusion that the presence of the accused-respondent is admitted at the time of occurrence which was preplanned. Although, the accused-respondent did not inflict any injury to the deceased persons, however, being a member of an unlawful assembly, Section 149, A.P.C., is fully attracted and he is also liable to be punished on the line of the principal accused. He argued that there is a direct evidence against the accused-respondent, therefore, the report of Forensic Science Laboratory being corroborative in nature is immaterial. Even otherwise, this point cannot be taken into consideration while dealing with a bail matter which is only the prerogative of the trial Court. He relied upon the cases titled Iftikhar Hussain vs. The State & another [2004 SCR 308], Abbas & 3 others vs. The State [1993 PCr.L.J. 2410] and Muhammad Asghar vs. The State [2006 SCM R 967]. He prayed for the acceptance of the appeal while cancelling the concession of bail extended to the accused-respondent.
4. Raja Ghazanfar Ali, Advocate-General, for the State, while supporting the arguments advanced by the learned counsel for the appellants, has submitted that the accused-respondent was directly nominated in the F.I.R. with a specific role and no justification has been assigned by the Shariat Court while recording the impugned judgment. He argued that all P.Ws. have fully supported the prosecution version while appearing before the Court. He argued that there is no denial regarding the presence of the accused-respondent at the place of occurrence. A considerable period has elapsed and the trial could not be concluded due to delay caused by the accused party which itself supports the case of the prosecution. He further argued that the Shariat Court failed to exercise its discretion in a judicious manner and the observations made amount to appraisal of the evidence in detail.
5.On the other hand, Ch. Muhammad Ilyas, Advocate, the learned counsel for the accused- respondent, has supported the judgment of the Shariat Court while arguing that it is a well reasoned judgment and has been recorded while assigning cogent reasons. He argued that the F.I.R. was registered after due deliberation and the accused-respondent was got involved in the case due to the relationship with the accused party. He argued that the challan has already been submitted in the Court of competent jurisdiction and the trial is also in sight. The statements of a number of the witnesses have been recorded. At this stage sending the accused-respondent behind the bars would not be justified. In this regard, he relied upon a case titled Muhammad Riaz vs. Muhammad Sabir & 12 others [2011 SCR 126].
6. We have heard the arguments of the learned counsel for the parties at some length and also perused the record and the precedents referred to by both the learned counsel for the parties along with the impugned judgment. The role attributed to the accused-respondent at the time of occurrence is that he was armed with Kalashnikov who made aerial firing while instigating the other co-accused. However, it is not denied by the complainant party that no injury was inflicted to the deceased persons by the accused-respondent. At this stage when the trial is in progress and the statements of a number of witnesses have been recorded, we are not inclined to make any comments on the merits of the case which may prejudice the case of the either party. The effect of the absconsion of the accused-respondent has to be determined by the trial Court at final disposal of the case on the basis of appreciation of evidence.
7. It is settled principle of law that considerations for the cancellation of bail are quite different.
Once a bail has been granted by the Court of competent jurisdiction while exercising its discretion in a judicious manner, there must be strong and exceptional reasons for its cancellation. The bail can only be cancelled if bail granting order appears to be perverse and a gross illegality has been done. In this regard, reliance can be placed on a case reported as Ghulam Rasool vs. Khadim Hussain and 5 others [2004 SCR 209], wherein it has been observed as under: "It is totally different to cancel a bail allowed to an accused person by a Court of competent jurisdiction than to allow bail to an accused itself. The principles governing the cancellation of bail are totally different than the principles relating to grant of bail. The attitude of one of the accused, namely, Waqar Ahmed, alias Munna, prima facie appears to be reprehensive and cruel, but at this stage we refrain to substitute our view into that of the Courts below.'
Reliance can also be placed on a case reported as Muhammad Abid us. The State [2012 SCM R 1691], wherein it has been held as under:-- "8. The learned High Court of Sindh after examining the material has granted the bail in its discretion and the case of the petitioner does not attracts the provisions of Section 497(5) Cr.P.C. for cancellation of bail. If an order of the nature is passed in exercise of discretion, this Court will not intervene unless it is shown that gross injustice has been done. We, after examining the material, a e of the view that in both the matters, a case of further inquiry was made out and the learned High Court was competent to grant bail."
This Court in a latest judgment titled Muhammad Asghar Khan vs. Irfan Sharif & others (Criminal Revision Petition No, 2 of 2008 decided on 17.2.2012) in which while relying upon the cases titled Ehsan Akbar vs. The State & 2 others [2007 SCM R 482], Mian Dad vs. The State & another [1992 SCM R 1418] and Zia-ul-Hassan Shah & another vs. The State [1996 SCR 238] it has been held as under:- " Even otherwise the considerations in grant of bail and cancellation of bail are different. The provisions of sub-section (5) of Section 497, Cr.P.C, are not punitive in nature and there is no compulsion for the cancelling bail unless the order of bail is patently illegal, erroneous and factually incorrect and has resulted in miscarriage of justice or where the accused-respondents were found to be malting efforts to misuse concession of bail by extending threats or tampering with prosecution case. We failed to find any such element from the impugned order/record."
In another case titled Haji Mian Abdul Rafique vs. Riaz-ud-Din and another [2008 SCM R 1206], the Supreme Court of Pakistan has observed as under:-- "4. In order to maintain the order of the High Court, the only ground in this case that about all witnesses have been examined except one or two would be sufficient, as at this stage the interference in the order of the High Court is not required and more so when the cancellation of bail has been sought on merits of the case and there is no allegation that accused has misused concession of bail granted to him.
5. Keeping in view the above circumstances, leave to appeal is refused and the petition is dismissed In another case titled Muhammad Riaz vs. Muhammad Sabir & 12 others [2011 SCR 126], it has been observed as under:-- "All the injuries attributed to the accused persons are simple in nature and offences are bailable.
The challan of the case was filed in the trial Court on 6th October, 2008.
The accused are no more required by the Police for investigation. If the bail is cancelled and the accused respondents are sent behind the bars and ultimately they are acquitted, there will be no price for the agony they will suffer. The bail cannot be cancelled as a punishment."
7-A. It may be observed here that in a case where the trial is in progress, this Court is always very slow in interfering with the impugned judgment. If in a case the trial is in progress and a number of prosecution witnesses have been examined and only a few are left to be examined, it would not be appropriate to send the accused behind the bars as it would not serve any useful purpose especially so when there is no allegation of misuse of concession of bail granted to the accused. In this regard reliance can be placed on a case reported as Mian Dad vs. The State and another [1992 SCM R 1418] wherein it has been observed as under: "During the hearing of the case it transpired that the challan having been submitted in Court the trial is going to commence. The learned Advocate-General has relied on Akmal Masih and others v.
Salamal Masih and 4 others 1988 SCM R 918 in support of the contention that this Court ordinarily does not consider it appropriate at the stage as in present case to interfere with the orders of the High Court relating to bail -- particularly in cases of murder. So far as it goes the contention raised by the learned Advocate-General has the support of the judgment cited by him."
8. So far as the case law relied upon by the learned counsel for the appellants is concerned, the same is not relevant to the facts of the present case. In criminal matters, particularly in bail matters, the authority in one case is hardly helpful in another case as each case has its own peculiar facts and circumstances.
9. Resultantly, this criminal appeal is dismissed.
Before parting with the case, we may observe that it is a painful situation that in this case, which pertains to the murder of three persons, after the lapse of more than four years, the trial could not be concluded. Therefore, we direct the trial Court to conclude the trial within a period of 4 months from the date of communication of order of this Court and compliance report shall be submitted to this Court through its Additional Registrar, Branch Registry, Mirpur.