MOHAMMAD AZAM KHAN, CJ. --- The titled appeal arises out of the judgment of the Shariat Court 15th February, 2013, whereby criminal appeal No. 2 of 2013, against the order of Additional District Criminal Court, Dudyal, dated 24th December, 2012 has been dismissed.
2. On the statement of respondent No. 2, on 21st September, 2012 the Police Station Dadyal registered a case under sections 324, 337, 147, 148 and 149, APC against the appellants. He stated that after digging the earth in his room, he dumped the clay in the street. At about 4:30 p.m. Haq Nawaz and Muhammad Nawaz, sons of Muhammad Nawaz, Asjad Mahmood s/o Haq Nawaz and Tazarab s/o Muhammad Younus, Gul Nawaz, Sarfraz sons of Muhammad Nawaz, while hurling abuses attacked upon him. Asjad Mahmood had a 12-bore gun, who fired four shots upon his father Ali Shan. The pallets of fire hit right eye, forehead, on right side of lip, on the right side of temporal and one pallet hit chest. Due to injuries, his father fell on the spot. Tazarab, who had a spear in his hand, injured his wife, Mst. Robina Kosar while hitting on her forehead above the right eye as well as above the left eye. The other accused had battens in Their hands. The accused committed the crime with pre-planning with intention to kill. The motive behind the occurrence is dispute in respect of land and previous litigation. The occurrence is witnessed, apart from injured witnesses, by the complainant and brother Shakil.
3. On the above report a case under sections 324, 337, 147, 148 and 149, APC was registered against the accused-appellants. After being a - ;ted, the appellants moved a bail application in Tehsil Court, Dudyal, on 10th December, 2012. The application was dismissed on 15th December, 2012.
Thereafter the accused-appellants filed a bail application in Additional District Criminal Court Dudyal. The same was dismissed on 24th December, 2012. Dissatisfied from the said judgment, the appellants filed an appeal in the Shariat Court. A learned single Judge in the Shariat Court treated the appeal as a revision petition and vide impugned judgment dated 15th February, 2013 dismissed the same.
4. Ch. Masood Khalid, the learned counsel for the appellants, argued that the judgment of the Shariat Court is against law and the record. Only related and interested witnesses have been cited.
No independent witness of the occurrence has been cited. The learned counsel submitted that the allegation against Tazarab is that he injured Mst. Robina with spear. No spear was recovered from him. Furthermore the medico-legal report is not supportive to the case of prosecution because the doctor on query has opined that such-like injuries which are on the person of Mst. Robina, injured, can be caused by a blade or these can be self-inflicted, therefore, he is entitled for concession of bail. The learned counsel submitted that the accused appellants are behind the bars for the last about nine months. The case against the accused-appellants is one of further inquiry. Bail cannot be withheld as a punishment. The learned counsel further argued that there is previous litigation between the parties. Previously complainant party attacked upon the accused respondents. A case was registered against them which is still under trial. The present case has been registered as a counter blast so that the appellants be pressurized to compromise the previous case. It is a case of further inquiry. He requested for grant of bail. He referred to a case reported as Sardar Muhammad Ashraf Khan and 3 others v. Sarkat [PLD 1978 AJK 8].
5. The above-referred case, PLD 1978 AJK 8, relates to detention of political workers arrested under sections 12 and 13 of the Emergency Powers Act, 1958. The detention was challenged and bail application was filed under Section 491, Cr.P.C. Alongwith Sections 497, 498, 561-A, Cr.P.C. The High Court observed that although under Section 16-A of Emergency Powers Act, 1958, the powers of Court have been taken away but the High Court is empowered to grant bail under Section 561-A, Cr.P.C. The case is not relevant for the purpose of deciding a bail application under Sections 324, 337, 334, APC etc.
6. While controverting the arguments Raja Inaamullah, the learned counsel for the complainant argued that the three Courts below have refused to grant bail. The discretion by the Courts below has been exercised in a judicious manner. This Court normally does not interfere with the discretion exercised by the Courts below. He submitted that the accused are nominated in the F.I.R., which was promptly lodged. It is a broad day light occurrence. Parties are known to each other, therefore, there is no dispute of identity. The accused respondents have committed the offence in a preplanned manner. The appellant, Asjad Mahmood, fired four shots upon Ali Shan with 12-bore gun. Four crime empties have been recovered from the place of occurrence. The learned counsel vehemently argued that any contradiction between medico-legal report and oral evidence cannot be considered at the stage of bail in presence of direct evidence, but for the sake of arguments if it is considered, the medico-legal report is supportive to the case of prosecution. He submitted that there are for eyewitnesses of the occurrence; two of whom are injured. Place of occurrence is the house of complainant and the eyewitnesses are inmates of house. When an occurrence takes place in a house, the best witnesses in the case can be the inmates of the house. He further submitted that the gun has been recovered from Asjad Mahmood, while Tazarab gave spear blows from sharp edge side to Mst. Robina, injured, on vital parts of her body. His repeated blows are a proof that his intention was to kill the lady, but she luckily survived. The prosecution has collected sufficient evidence against the accused-appellants. The case falls within the prohibitory clause of section 497, Cr.P.C. There is no merit in the appeal hence it merits dismissal. He referred to the cases reported as Muhammad Bashir v. The State [1992 SCR 33], Baggo v. The State and others [1993 SCR 65] and Muhammad Arif y. The State [1997 SCR 223].
In the case titled Muhammad Bashir v. The State [1992 SCR 33], it has been observed that the Shariat Court has power to hear a revision petition in bail matters.
In the case reported as. Baggo v. The State and others [1993 SCR 365], it was observed that at bail stage onry a bird eye-view of the prosecution evidence is to be taken. Deep evaluation of evidence is always avoided at bail stage.
In Muhammad Arif v. The State [1997 SCR 223], this Court observed that although the case against the accused-appellant does not fall in prohibitory clause but keeping in view the circumstances of the case including the gravity of allegation against the accused, this Court refused to interfere with the orders passed by the lower Court and the Shariat Court, whereby bail was refused to the accused-appellant.
7. Mr. Muzaffar Ali Zafar, the learned Additional Advocate-General, while adopting the arguments advanced by the counsel for the complainant, argued that the accused are nominated in the promptly lodged F.I.R. Overt-act is attributed towards both the accused. There are four eyewitnesses of the occurrence, out of whom two are injured. The accused gave blows on vital parts of bodies of victim. The learned Additional Advocate-General further argued that the appellant, Tazarab, remained fugitive from law for a period of two months and nine days.
Unexplained noticeable delay disentitles an accused from the concession of bail.
8. We have heard the learned counsel for the parties and perused the record.
9. The occurrence is stated tb have taken place at 4:30 p.m. In village Dheri Qasim Kathai in the jurisdiction of police station Dudyal on 24th September, 2012. The case has been registered at 5:45 p.m., on the statement of complainant Ghulam which was recorded in. Tehsil Headquarter Hospital Dudyal. According to complainant 'after digging earth in his newly constructed room; he threw out the clay and' dumped it in the street when six accused attacked upon the comptainant party while hurling abuses. The appellant Asjad Mahmood, had a 12-bore gun in his hand; Who fired four shots upon his father, Ali Shah. The pallets of one fire hit right, eye, right forehead, right*, near the right temporal and one pallet hit on the chest. The appellant, Tazarab, who had a spear in his hand inflicted; spear blows on the right side of forehead above the right eye and on forehead above the left eye of the injured, Mst. Robina. The other accused persons had battens in their hands. Both the appellants have been attributed specific role that Asjad Mahmood fired four shots with 12 bore gun upon Ali Shan. One fire hit on different parts of face and head of injured All Shan, while Tazarab is alleged to have given spear blows on the forehead of Mst. Robina. There are four eye-witnesses of the occurrence; two of them Ali Shan and Robina are injured witnesses. The occurrence is stated to have taken place in the house of complainant party. The injured witnesses and other inmates of the house are natural witnesses of occurrence.
10. Section 497, Cr.P.C. Postulates that when any person, accused of non-bailable offence, is arrested or detained without warrants, the Court may release him on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life or ten years. Under sub-section (2) of Section 497, Cr.P.C. If it appears to presiding officer of the Court at any stage of the inquiry or trial that although the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, then the accused shall be released on bail pending such inquiry. At the stage of bail deeper appreciation of evidence is not permissible but the bail applications cannot be decided in vacuum. At the time of deciding bail application, it is obligatory for the Courts to consider F.I.R., statements of witnesses recorded under Section 161, Cr.P.C. And the other material collected by the prosecution and also the version of accused, if any. In a case reported as Jahanzeb and 4 others v. The State and 3 others [2011 SCR 180] it was observed 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 Section 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."
11. The learned counsel for the appellants strenuously argued that on query by police, the doctor has opined that the injuries on the forehead of Mst. Robina can be inflicted by a blade or may be self-inflicted, therefore, the case against Tazarab is one of further inquiry. We respectfully disagree with the aforesaid contention on the ground that in presence of four eye-witnesses, two of whom are injured, medico-legal report carries less value. Furthermore the doctor has not opined that the injuries have not been caused by sharp edge weapon. The doctor has to appear in the Court as a witness and he will explain whether the injuries examined by him were caused by the spear or not, therefore, the above argument has no force.
12. The accused-appellants are nominated in the F.I.R., which was promptly lodged. There are four eyewitnesses of the occurrence. Two of them are injured witnesses. Specific role of firing and giving spear blows on vital parts of bodies of victims is attributed to the appellants. Place of occurrence is the house of complainant party. Gun has been recovered from the appellant, Asjad Mahmood.
Three Courts have observed that there is sufficient evidence from which the accused are connected with the crime. The Trial Court and the District Criminal Court have dismissed the application for grant of bail and the Shariat Court has also concurred with the opinion of Courts below, while dismissing the revision petition. This Court normally does not interfere with the discretion exercised by the Courts below in bail matters unless the same is arbitrary, capricious, against the record and patently illegal. The discretion appears to have been exercised by the lower Courts in a judicious manner, which does not require interference by this Court. In a case reported as Masood Ahmed v. The State and another [2007 SCR 131] it was observed as under:--- ".... 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."
In another case titled Ameer Qabal v. The State and another [Criminal Appeal No. 23 of 2012, decided on 28.11.2012] it was observed by this Court as under:- ...................................... Both the lower Courts have drawn correct conclusions from the tentative assessm ent of evidence. Concurrent findings recorded by two Courts normally are immune from interference by this Court. This Court normally does not interfere in the discretion exercised by the Courts in bail matters unless the same is capricious and against the settled rules governing the bail matters."
13. We have also considered the argument of the learned Additional Advocate-General that the accused Tazarab remained fugitive from law for two months and nine days. Accused failed to furnish any explanation regarding his absence. Unexplained noticeable delay disentitles an accused for concession of bail. By conduct he is not entitled for concession of bail. In a case titled Arif Majeed and another v. State and another [PLJ 1986 SC (AJK) 117] it was , observed as under:--- ......................................... The effect of abscondence of the petitioners-accused after the cancellation of bail is that they have become fugitive from law and Court. This very conduct of the petitioners disentitles them to some of the normal rights including that of right of by the procedural and substantive law. This abscondence is unexplained. Such an unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case."
In another case titled Mst. Nasreen Akhtar and 5 others v. Raja Muhammad Asghar [PLD 1993 SC
(AJK) 1] it was observed as under:--- ".. .... We have already observed that respondent Muhammad Asghar was duly named in the F.I.R.
But he did not Court arrest. Then .He applied for bail before arrest on 4th of October, 1990 but when his pre-arrest bail was not confirmed he did not surrender himself to the police. There might have been some explanation about the period prior to the making of application at Bhimber but there can be no doubt that after the rejection of his bail from the Court at Bhimber the respondent knew that he was wanted by the police but still he did not Court his arrest and thus became a fugitive from law. In this view of the matter when he again appeared in a Court of law his prayer for bail should have been straightaway declined on the ground that he was a fugitive from law. May be that when the respondent moved his pre-arrest bail on 9th of June, 1991 the Shariat Court did not come to know that his previous application for bail had been rejected but this fact was duly argued before the Zilaee Adalat and subsequently before the Shariat Court but this aspect of the matter was brushed aside for insubstantial reasons. The afore-mentioned Courts should have followed the rule that concession of bail cannot be extended to an absconder."
Similarly in the case titled Javed Alam v. The State and another [2002 SCR 284] it was observed as under:--- ".... Apart from the other grounds, mentioned above, the accused-appellant is also not entitled for his release on bail for the reason that he has absconded for a pretty long time. An offender who after committing the offence remains absconded is normally deprived of all the legal facilities including his release on bail. Our aforesaid view is supported by unreported cases of this Court titled Alam Zaib v. Haji Muhammad Ramzan and another [Criminal Appeal No. 28 of 1999, decided on 29.5.2000] and Nasrullah Khan v. Khawar Ashraf and others [Criminal, Appeal No. 19 of 1995 decided on 26.6.1995].
14. The result of above discussion is that there is no illegality in the orders passed by the Courts below. The appeal has no merit. It is hereby dismissed. The appellants are at liberty to file fresh bail application after recording some evidence on new grounds.
Bail after arrest refused.