MOHAMMAD AZAM KHAN, C.J.--- The captioned appeal, by leave of the Court, arises out of the judgment of Azad Jammu and Kashmir Shariat Court dated 20th July, 2011 and 5th August, 2011, whereby respondent No,1 was released on bail.
2. The precise facts for disposal of the instant appeal are that on a report made by the appellant, a case under Sections 324. 337. 34, APC was registered at police station Dudyal on 18th July. 2008. The appellant, in his written report, alleged that two unknown persons. who looked like Paihans by appearance, fired upon his father, which hit at his abdomen. He was injured and sent to the hospital. The occurrence is witnessed by a number of people. On 29's July, 2008, the statement of Fazal Elahi, injured, was recorded, who alleged that there was a dispute of land between his brother and nephews. His brother and nephew, Ashfaque Hussian, had threatened him to kill. Later on, Fazal Ellahi, succumbed to the injuries and sections 302, 109, 120 A.P.C. and section 13 of the Arms Act was added. The accused applied for pre-arrest bail before the Additional District Criminal Court Dudyal.
The Court refused to grant the same. After being arrested. he filed an application for bail after arrest. The trial Court granted the bail on 31st March. 2009. The complainant challenged the order of the Additional District Criminal Court Dudyal before the Shariat Court by way of revision petition, which was accepted and concession of hail was recalled. The appeal tiled by the accused- respondent before this Court also failed.
3. After recording of most of the evidence, the accused-respondent, herein, moved a fresh application for grant of bail in the trial Court. The trial Court dismissed the application. Dissatisfied from the order passed by the Additional District Criminal Court Dudyal, the accused-respondent filed revision petition No,184 of 2011 in the Shariat Court. The Shariat Court vide short order dated 20th July. 2011 accepted the revision petition and released the accused-respondent on bail.
Detailed order was recorded on 5th August, 2008.
4. Ch. Muhammad Reaz Alam, counsel for the appellant, argued that the judgment of the Shariat Court is not maintainable. All the points, which were considered at the time of the decision of first bail application were again considered by the Shariat Court and bail has been granted to the accused-respondent on the same point. therefore, the judgment is not maintainable. The learned counsel argued that there appears a strong prima facie case against the accused-respondent.
The prosecution has collected sufficient material against the accused-respondent. The learned counsel referred to the dying declaration of deceased, Fazal Ellahi. which was recorded at Shifa International Hospital Islamabad, in presence of the witnesses. Both the witnesses of dying declaration, Ashraf and Hafeez were wonover by the accused and during recording the Court statement they were declared hostile and public prosecutor and the counsel for the complainant cross-examined the witnesses and in cross-examination they admitted the signatures on the dying declaration as correct Therefore, the dying declaration is proved beyond doubt and in the light of dying declaration: the accused-respondent is fully connected with the offence He referred to a case titled Slate vs. Muhammad Saeed Khan & another [PLD 1979 AJ&K 28] and a case tit led Muhammad Shafique vs. The State [PLD 1977 SC (AJ&K)
5. While controverting the arguments, Ch. Muhammad Taj counsel for the accused-respondent, argued that the judgment of the Shariat 'Court is perfectly legal and in accordance with rules governing the hail matters The learned counsel argued that after the decision of first bail application, the evidence of important witnesses, who were relevant for deciding the bail application of the accused-respondent has been recorded and from the evidence. the accused- respondent is not prima facie connected with the crime, therefore. the Shariat Court was justified in releasing the accused on bail. The learned counsel vehemently argued that allegation against the accused-respondent is of conspiracy/abetment. The conspiracy or abetment is not proved from the record. The only evidence against the accused-respondent is stated to be the dying declaration of the deceased. Fazal Ellahi. The dying declaration is not proved to be recorded in the manner as alleged by the prosecution. Ashraf and Hafeez are stated to be the witnesses 01 dying declaration. Their statements have been recorded in the Court and they refused the fact that the dying declaration was .recorded in their presence. If the evidence in shape of dying declaration is excluded, there remains no case against the accused-respondent. The learned counsel. further argued that even in the dying declaration, the deceased admitted that there was a dispute of property between them. which was settled. When the dispute was settled then there remain no motive on the basis of which the accused-respondent could act against the deceased. The learned counsel lastly argued that it is the case of no evidence against the accused-respondent.
He requested for dismissal of the appeal. He referred to a case titled Fazal-e-Rabi vs. State & another [2008 SCR 495].
6. The first question which needs resolution is. whether after dismissal of first bail application, the fresh bail application was competent or not? The record reveals that the accused moved an application for bail. which was granted on 31st March, 2009. The Shariat Court accepted the revision petition against this order and cancelled the bail on 29th. June, 2009. The matter came for consideration Mote this Court in an appeal filed by the accused-respondent. This Court dismissed the appeal on 2151 June, 2010. After dismissal of appeal form this Court, the statement of complainant, Zahoor Ellahi, was recorded on 20th December, 2010. The statement of Ashraf Hussain son of Pinoo Khan, was recorded on 21st December, 2010 and Muhammad Hafeez on 20th December, 2010. Both these are the witnesses of dying declaration. The statements of a number of other witnesses have also been recorded. The case against the accused-respondent mainly revolves around dying declaration. The dying declaration is shown to have been recorded in the presence of Muhammad Hafeez and Muhammad Ashraf, witnesses. These were the relevant witnesses for decision of fresh bail application. Even otherwise, the statement of other witnesses have also been recorded and formal witnesses. like investigating .officer has to be recorded yet.
After recording of statement of witnesses of dying declaration, a fresh ground is available to the accused for tiling tie fresh hail application. It may be observed that the decision of first bail application do not constitute resjudicata and fresh hail application can competently he filed when a new ground is available to the accused. In criminal cases when the statements of relevant witnesses are recorded and from the said statements: if a case of further inquiry appeal s, the accused can competently file the fresh bail application on fresh ground. This Court while resolving the similar proposition in case titled Fazal-e-Rabi v. State & another 12008 SCR 495] observed as under:-- "...............As regard the arguments of the learned Advocate-General and the counsel for, the complainant that the judgment dated 31.10.2006 has attained finality and new application is not competent has no force. In criminal matters the accused is at liberty to move an application for grant of bail whenever a fresh ground is available to him. In our considered opinion the filing of complete challan is a fresh ground which is available to the accused-petitioner and he is entitled for moving a fresh bail application."
7. The case against the accused-respondent is mainly rested upon dying declaration. The question for resolution is that whether in this case the Shariat Court was justified in releasing the accused on bail; while anal) sing the retracted confessional statement of the accused-respondent and recording the observation by the Court on (lying declaration whether it is proved or riot was justified or it has exceeded the jurisdiction. Before proceedings further, we may observe that ordinarily, while deciding a bail application the Court shall refrain from analysing the evidence and deeper appreciation is not permissible but at the same time the Court cannot decide the bail application in vacuum. The Court-has to look into available record, F.I.R., statement of witnesses recorded under section 161, Cr.P.C., the medical evidence and other material, the version of the accused putforth, if any. and if the statement of witnesses have been recorded in the Court, the Court can competently made tentative assessments of those statements of the witnesses.
This Court in a case titled Nasir Mehmood vs. The State. & another [2011 SCR 166], has observed as under:- " it may be observed that while deciding a bail matter, the Court has to make a tentative assessm ent of the F.I.R., statements of prosecution witnesses recorded under section 161: Cr.P.C., recovery evidence, the defence plea, if any. and circumstances and facts of the case on the basis of which the conclusion can be drawn whether the accused is entitled for the concession of bail or not."
In the case titled Jahanzeb & 4 others vs. The State & 3 others 12011 SCR 180], it has been observed by this Court as under:-- "11. We may observe that at the bail stage deeper appreciation of evidence is not permissible but the Court cannot decide a bail application in vacuum. The record made available, i,e., the F.I.R.. the statements of witnesses recorded under sect ion 161. Cr.P.C. any other material including the recovery evidence. medico legal report and of course, defence plea, if any, and other circumstances have to be looked into. The Court should not enter into the deeper appreciation of evidence and restrict itself to the tentative assessment of material available on the record against the accused that if the record remains unrebutted the same shall lead to the inference of the guilt of accused or not."
In another case titled Faiz Muhammad Khan vs. Ashraf Khan & others [1995 SCR 240], it has been observed as under:-- ' .............At the stage of bail matter it was the obligation of the trial Court and the Shariat Court to look into the First Information Report, the statements recorded under section 161 Cr.P.C'., the medico- legal report, the evidence recorded by the trial Court and the defence plea if any. We are not ignorant of the fact that at the stage of bail the close scrutiny and deep appreciation of evidence is not permissible, however, its tentative assessment not prohibited. After all, the Courts are not supposed to pass an Order on bail application in the air but on the basis of some material and data available."
This Court in another case titled Abdul Khaliq vs. State & another [2010 SCR 402], observed as under: ''......At the bail stage a bird eye-view of the evident e has to be taken. Deeper appreciation of evidence is not permissible at bail stage, however, bail order cannot be passed in vacuum.
Whatever material is available on record, the Court has to scrutinize the same and from tentative opinion on its basis."
In another case tit led State vs. Ghulam Rasool [2003 SCR 256] it has been observed by this Court as under:-- "6. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. We agree with the learned counsel for the accused-respondent that at bail stage it is obligatory for the Court seized with the bail matter to look into the FIR., the statements of the prosecution witnesses, the medical evidence, recoveries and other material supporting the prosecution version, along with defence plea, if any, and then decide the question of bail one way or the other. However, the appellate Courts while deciding the bail matter should not enter into the deep appreciation of evidence rather should restrict themselves to the tentative assessm ent of the material available on the record against the accused-respondent and satisfy themselves that if such material remains un-rebutted the same shall lead to the inference of the guilt of the accused or not. However. it must be remembered that appreciation of evidence and drawing a conclusion there from is within the exclusive domain of the trial Court, the appellate Courts should not anticipate certain results from such material while dealing with ancillary matters like bail. However, if during tentative assessment of evidence if any doubt is available the same must necessarily be solved in favour of the accused-respondent.
8. Without diving deep into the whole evidence, it is observed that the case against the accused- respondent is mainly based upon dying declaration of deceased. Fazal Ellahi, who stated in his dying declaration that there was a dispute of property between him and his brother & nephews. A `Panchayet' was convened and in the 'Panchayet ' the dispute was settled and his brother made a gift of two and half marla of land to him, while accepting the decision of Panchayee. His brother and nephews threatened him that they will not let him alive to enter in the house constructed on the said land. They became inimical towards him. His brother. Karm Ellahi and his son, Ashiq Hussain and Ashfaque Hussain arranged an attack upon him by the hired assassins. This dying declaration is stated to. be recorded in the presence of Ashraf Hussain and Muhammad Hafeez, witnesses, who appeared as v, witnesses in the Court and stated that dying declaration was not recorded in their presence. Although both the witness, s were declared hostile and cross-examined at length but the witnesses firmly stuck to their initial statement that dying declaration was not recorded in their presence. They were friends of the complainant, who obtained their signatures on a blank paper. From the perusal of the statement of the witnesses of dying declaration prima facie the case to the extent of accused-respondent falls within the ambit of further inquiry.
9. We have also gone through the authorities referred to by the counsel for the appellant the case titled Muhammad Shafique vs. The Stove [PLD 1977 SC (AJ&K) 1] was an appeal of the accused against conviction. The Court observed that acceptance of any portion of testimony of hostile witness though not safe yet discarding such witness's statement simply on the ground of being. declared hostile by prosecution is quite wrong. The evidence of hostile witness to be judged on its own merits and carries some value whether called by prosecution or by defence In case titled State v. Muhammad Saeed Khan & another [PLD 1979 AJ&K 28], the accused were acquitted of the charge by the Magistrate; while deciding appeal the High Court observed that the evidence of a hostile witness could not be rejected merely on the ground of being hostile The evidence of hostile witness supporting other evidence could be considered as corroborative evidence. The law settled in both the referred cases is correct. We are not going to made a deeper appreciation of statement of hostile witnesses. From the tentative assessment of the statement of both the witnesses. we reached to the conclusion that the Shariat Court was justified, while drawing the conclusion that the case against the accused respondent is one of further inquiry.
10.We have also observed another factor that the dying declaration is shown to have been recorded in Shifa International Hospital Islamabad in the presence of Doctor. The Doctor is not shown as witness in the calendar of witnesses nor the dying declaration is attested by the said Doctor in whose presence the same was recorded. Both the witnesses have not admitted that the dying declaration was recorded in their presence. Prima facie no evidence of dying declaration appears against the accused-respondent.
11.We have also considered the statements of accused persons. Zia-ul-Rehman and Ashraf Hussain, recorded under section 164. Cr.P.C Without commenting upon the legal position whether the confessional statement of an accused person is admissible in evidence against the accused or not, from the statements of the aforesaid accused persons it appears that both the accused have not connected the accused respondent with the crime.
No evidence with regard to conspiracy is brought on record connecting the accused-respondent with the crime. The matter appears to be one of further inquiry. The appeal having no force, it is hereby dismissed.