' CH. MUHAMMAD IBRAHIM ZIA, J. --- The above-titled appeals have been addressed against the consolidated judgment of the Shariat Court dated 30.08.2014 whereby while partly accepting the revision petition No. 171/2014 filed by the accused Tanveer Hussain Shah, he has been released on bail, whereas the revision petition No. 172/2014 filed by the complainant has been dismissed.
2. The brief facts forming the background of these appeals as narrated are that: Jahangir Khan, complainant, lodged an F.I.R. against Tanveer Hussain Shah, Saffia, Sajida (daughters) and Irshad Begum w/o Tanveer Hussain Shah, at Police Station Sehnsa on 05.05.2014 alleging therein that on 05.05.2014 at about 9:00 a.m. his real brother, Zia-ul-Haq, was going towards Sehrmandi to bring some electric goods. When he reached near to Kota-more, some unknown persons opened fire at him. He got severely injured and later on succumbed to the injuries on the way to hospital. It was further alleged by the complainant that his brother has been murdered by the aforesaid accused- persons. The motive behind the occurrence is stated to be the litigation between the parties.
3. On the aforesaid report, a case for commission of the offences under Sections 302, 109 & 34, A.P.C., was registered at Police Station Sehnsa on 05.05.2014. During investigation the accused- persons disclosed the names of some other accused-persons. The police arrested the accused Mst. Safia Tanveer, Tanveer Hussain Shah and Daood Khan. After being arrested, they moved applications for grant of bail before the Additional District Court of Criminal Jurisdiction Sehsna on 26.06.2014 which were partly accepted. The concession of bail was declined to the extent of Tanveer Hussain Shah, Mst. Safia Tanveer and Daood Khan, accused whereas the other accused- persons, i.e., Sajida Begum, Irshad Begum and Abdul Ghaffar were extended concession of bail vide consolidated order dated 17.07.2014.
4. Against the said order of the Additional District Criminal Court, the accused, Tanveer Hussain Shah, Mst. Safia Tanveer and Daoocl Khan, filed revision petition No. 171/2014 in the Shariat Court.
The complainant partly also filed revision petition No. 172/2014 against the said order of the Additional District Criminal Court, whereby rest of the accused were allowed to be released on bail.
The learned Shariat Court, after necessary proceedings consolidated both the revision petitions and while partly accepting the same allowed the bail to Tanveer Hussain Shah, accused whereas the revision petition filed by the complainants has been dismissed. Both the parties have now approached this Court through separate appeals. The complainant has called in question the bail granting order, whereas, the accused-appellants prayed for release on bail while challenging the legality of the said order of the Shariat Court.
5. M/s. Raja Khalid Mehmood and Muhammad Zubair Raja, Advocates, the learned counsel for the complainant-appellant argued the case at some length. Their main focus in the arguments was that a heinous and brutal offence of murder with pre-planning and conspiracy has been committed by the accused-respondents. During the investigation the commission of offence and its pre-planning and conspiracy has been fully established by bringing on record the legal evidence. They especially referred to the copies of some pre-incident applications submitted by the complainant party to substantiate the background of the whole conspiracy cooked by the accused party. It is further argued that the principal accused, Mst. Safia Tanveer, has got recorded her confessional statement before the Sub-Divisional Magistrate. Another very strong piece of evidence is recovery of the leaf of cheque from Daood Khan, accused, at the time of his arrest and during his body search which fully connected the accused with the commission of alleged offences. It is also forcefully argued that co-accused with the connivance of the accused- respondents has absconded. They are fugitive from law and the accused-respondents have abetted and facilitated them in absconsion. For the arrest of the absconded accused, the recalling of bail concession extended to respondents No. 1 to 4 in criminal appeal No. 49/2014 is necessary.
While meeting the grounds of other appeal No. 54/2014 filed by under-arrest accused. They submitted that there is strong legal evidence against both of them which fully established their involvement in the commission of offence, thus, they do not deserve for concession of bail. Hence, the Courts below have rightly declined to exercise their discretionary powers and rightly rejected the bail applications of these accused. It is further contended that the release of accused on bail will also adversely affect the prosecution of the case. Thus, while accepting appeal filed by the complainant party the concession of bail extended to accused-respondents No. 1 to 4 in appeal No. 49/2012 is required to be recalled whereas the appeal filed by Mst. Safia Tanveer and Daood Khan, accused, having no substance, be dismissed.
6. Chaudhary Muhammad Ashraf Ayaz, the learned Additional Advocate-General, while agreeing with the arguments advanced by the counsel for the complainant party, submitted that the prosecution has collected sufficient evidence during the investigation to establish the commission of alleged offences by the accused-respondents. The conspiracy and pre-planning in the commission of offence is fully established through legal evidence and even the conduct of the accused-respondents is also a speaking proof of the fact that they were involved in the commission of alleged offences.
7. Mr. Mehboob Elahi Chaudhary, Advocate, the learned counsel for the accused-respondents submitted that all the arguments advanced on behalf of the prosecution are misconceived, against the facts and the record. The prosecution story on the face of it is based upon presumptions and inferences without any legal evidence. He submitted that, admittedly, there is no direct evidence of the commission of alleged offences by the accused-respondents. The so-called recovery of leaf of the cheque on the face of it is doubtful and a tactic of police to implicate the accused with the commission of alleged offences as the police has failed to trace out the real culprits. The prosecution itself has came forward with the story according to which they have serious enmity against the accused party, thus, the implication of the accused is the result of the said enmity whereas, in fact the real story is still shrouded in mystery and there is no legal evidence to connect the accused with the commission of alleged offences. So far as the statement of Mst.
Safia Tanveer, accused, recorded under Section 164, Cr.P.C. is concerned, the same on the face of it speaks that it has been recorded totally in disregard with the mandatory statutory provisions and it is fabricated which is prepared by the Police and attributed to the accused lady under the unprecedented coercion. Even otherwise, the story stated in the so-called confessional statement appears to be totally unbelievable, concocted and manufactured one. According to the celebrated principle of law such statements have no legal value and can neither be made ground nor have been treated by the Courts of law to satisfy their minds for drawing the conclusion regarding the commission of offence by the accused. He also argued that even according to prosecution's own story there is no direct evidence connecting the accused with the alleged offences, thus, without any legal proof satisfactorily establishing the commission of offence by the accused, the accused cannot be kept behind bars for an indefinite period. He also submitted that mere allegation of a brutal or heinous offence, is no ground to refuse the concession of bail to the accused. He also argued that so far as the argument of the complainant party regarding the alleged absconder, accused is concerned, the argument on the face of it is another factor which makes the prosecution story doubtful. Neither the real culprits to whom the commission of offences is attributed, have been apprehended nor any weapon of offence has been recovered. Thus, there is no direct ocular evidence and in the given circumstances and other-pieces of circumstantial evidence which may possibly connect the accused with the commission of alleged offence, are also not available on the record. The prosecution has miserably failed to justify its concocted story.
He also argued that it is also on the record that the complainant party has implicated, Raja Muhammad Arif, who was posted as Sub-Divisional Magistrate Sehnsa, in the murder of deceased, Zia-ul-Haq. Thus, according to complainant's own version the matter from this angle is also one of further inquiry. According to celebrated principle of law when there is no evidence satisfactorily connecting the accused with the commission of the alleged offence, or the matter is one of further inquiry, the concession of bail is always extended to the accused. Thus, the Courts below have rightly enlarged some of the accused on bail whereas, they fell in error of law while declining the concession of bail to the accused-appellants, Mst. Safia Tanveer and Daood Khan. Therefore, the impugned judgments to the extent of refusal of bail are not maintainable. The appeal of the complainant-appellants merits dismissal whereas while accepting the appeal filed by the accused they may be enlarged on bail. He referred Muhammad Shafat & another v. The State [2002 SCR 450], Mst. Raheema v. The State [2003 YLR 1930] and Rafique & another v. The State [2010 P.Cr.LJ. 567] in support of his arguments.
8. Written arguments on behalf of complainant, Muhammad Jehangir have been filed on 30th October, 2014, alongwith the copy of the judgment of this Court passed in the appeal titled Bilal All v. Raja Mehfooz Khan & others, the copies of the application submitted by both the parties, the copy of F.I.R. No 84/2013 registered on the report of Mst. Safia Tanveer and F.I.R. No. 80/2012 registered against the deceased, Zia-ul-Haq on the report of SHO Police Station Sehnsa for commission of offences under Sections 3/4, EHA. It is alleged in the written arguments that F.I.R. under Section 3/4, EHA was got registered by the accused Mst. Safia Tanveer. In the written arguments, the complainant repeated the same story which has already been narrated by his counsel. He has also implicated the local administration in the commission of the alleged offences.
In the written arguments, he has once again expressed and shown enmity between the parties and other grounds already advanced by the counsel in their arguments.
9. The learned counsel for the accused has not pressed the miscellaneous application filed for grant interim bail which otherwise has become infructuous as we are going to dispose of the appeals on merits. Thus, the miscellaneous application for grant of interim bail requires no further proceedings which is consigned to record.
10.We have considered the arguments advanced at bar on behalf of the parties and carefully examined the record made available. According to the admitted fact there is no ocular evidence regarding the commission of alleged offences. The prosecution during the investigation has attempted to collect some circumstantial evidence to establish the commission of alleged offences by the accused party. The prosecution story is mainly based upon the statement of accused, Mst. Safia Tanveer, recorded under Section 164, Cr.P.C. Keeping in view the celebrated principle of administration of criminal justice, at this stage deep appreciation or discussion of prosecution's evidence is avoided so that the case of either party should not be adversely affected on merits before the Trial Court.
11. According to the prosecution's version, the deceased, Zia-ul-Haq, has been murdered by some unknown persons. The accused persons, namely, Tanveer Hussain Shah, Safia Bibi, Sajida Bibi, Irshad Begum who are members of one family, have been implicated that they got him murdered with preplanning due to enmity. The investigating agency has brought on record some pieces of evidence to establish the commission of offence with the connivance and planning of the accused.
But against none of them, any act of direct firing or causing injury resulting into death of the deceased is attributed. The attribution against them is conspiracy and planning for hiring the absconded accused for the commission of the alleged offences.
12.From the tentative assessm ent of the material collected during the investigation, it appears that so far no direct evidence of conspiracy or planning for hiring the absconded accused for murder of the deceased is available on record. The prosecution story mainly revolves around the statement of accused, Mst. Safia Tanveer, allegedly recorded under Section 164, Cr.P.C.
13.The accused party has raised serious objection regarding the statement recorded under Section 164, Cr.P.C., including violation of statutory mandatory requirements being fabricated and prepared by the Police under illegal coercive torture, thus, it has no value. Be that as it may, however, regarding all these objections we would not like to make any clear observation as all these matters have to be established or determined during the trial of the case by the Trial Court.
The final report under Section 173, Cr.P.C. has been submitted before the Court of competent jurisdiction. A perusal of report u/s. 173, Cr.P.C. reveals that in it almost the story narrated in the alleged statement of Mst. Safia Tanveer recorded under Section 164, Cr P.C., has been repeated.
The accused, Mst. Safia Tanveer was arrested by the Police on 6th May, 2014. The alleged statement under Section 164, Cr.P.C. has been recorded on 20.05.2014 after a period of two weeks' time.
Without any deeper appreciation, ordinarily, the statement recorded after such a considerable delay coupled with the defence version of being result of torture, are also at bail stage considered to be the factors bringing the case within the ambit of further inquiry. Our this view finds support from the cases reported as Muhammad Ali & another v. The State [NLR 1981 Criminal 152] and Samiuddin Rehmani v. The State [1993 P.Cr.LJ. 1668].
14.Another important aspect of the matter is that in the final report under Section 173, Cr.P.C., regarding Raja Muhammad Arif, Sub-Divisional Magistrate Sehnsa, nothing has been brought on record, whereas, the complainant party is seriously insisting upon his involvement in the commission of the offence of murder. The prosecution has itself submitted the legal opinion alongwith the report of Investigating Officer before the Trial Court in which it has been referred that the complainant in his supplementary statement recorded under Section 161, Cr.P.C. has clearly implicated Raja Muhammad Arif, Assistant Commissioner Sehnsa of the time, in the commission of the alleged offences and he has shown dissatisfaction regarding investigation and inquiry. It further speaks that the complainant has requested for judicial inquiry against Raja Muhammad Arif, Assistant Commissioner of the time and the judicial inquiry is under process. Thus, prima facie, according to the prosecution's own version the complainant is not satisfied with the investigation and still according to his version the matter is one of further inquiry.
15.Without diving deep into the facts and merits or expressing our opinion regarding the final effect of this factual proposition, according to celebrated principle of law, such material proposition even at the bail stage cannot be over-sighted. When the complainant himself wants further inquiry of the case, then how the accused cannot plead the plea of further inquiry.
16.According to statutory provisions and principle of administration of criminal justice, especially, the factors to be considered for grant of bail, the question of further inquiry is always given due importance and if it appears from the tentative assessment of the material of the case that the matter requires further inquiry regarding establishment of the commission of offence against the accused, the concession of bail can be extended to the accused. On this subject there is chain of authorities including one reported as Ghulam Abbasi alias Hussain & another v. The State and others, [2013 P.Cr.LJ 66] wherein the scope of further inquiry has been discussed.
17.According to the prosecution's own story, the relations of the parties are very inimical. The prosecution has brought on record the sensitive facts touching the family honour, self-respect for establishing enmity between the parties. The enmity is a double-edged factor. It can be treated a reason for commission of offence but at the same time when the incident is unseen the possibility of the false implication of a person on the basis of enmity, cannot be ruled out. However, it is a mere logical presumptive observation irrespective of the facts of this case.
18.According to the celebrated principle of administration of criminal justice, if any slightest doubt regarding involvement of the accused in the commission of alleged offence arises, the benefit of such doubt even at bail stage can be extended to the accused. Our this view finds support from the case reported as Azmatullah v. The State through Advocate-General Muzaffarabad, Azad Kashmir [2013 P.Cr.LJ 66]. In another case reported as Muhammad Younas aid another v. Malik Muhammad Nawaz & others [1997 SCR 125], the same principle has been enunciated.
19.The counsel for the accused has raised serious objections regarding the recovery of alleged leaf of cheque from the accused, Daood Khan, with reference of the contents of two recovery memos., one for so-called leaf of cheque and the second for other articles at the time of body search of the accused, Dawood Khan prepared at one and same time. Same like, the report of the Bank officer on the request of Investigating Officer regarding the alleged recovered leaf of cheque is also objected to. But we would not like to make any express observation relating to these aspects for the reason that it may adversely affect the prosecution case and amount to deep appreciation of the evidence which is not permissible at the bail stage. However, keeping in view the overall stated factors especially the circumstances of this case, the obvious conclusion is that there is no ocular evidence on the record regarding the incident of murder. The question of admissibility of the alleged circumstantial evidence collected during investigation also is yet to be decided by the Trial Court on the touchstone of the legal precedents. Same like, the question of admissibility of the statement of Mst. Safia Tanveer recorded under Section 164, Cr.P.C. also has to be determined by the Trial Court. However, keeping in view over all facts and circumstances of this case and the detailed reasons mentioned hereinabove, according to our considered view, the case of accused falls within the ambit of further inquiry.
21.Yet there is another aspect of the matter. The legislature has made substantial amendments in the provisions of Section 497, Cr.P.C., firstly, through Ordinance, No. XXIV of 2011 followed by the subsequent Ordinance and finally emerging into Act No. XVI of 2014. According to this substantial amendment, the matter of grant of bail to a woman under first proviso to S. 497 has been brought at par with the persons under the age of 16 years or sick or infirm regarding whom there appears a reasonable ground for believing that he/she has been guilty of the offence punishable with the death sentence or the sentence of life imprisonment which may extend to more than 10 years.
Thus, even on this ground, the concession of bail can be extended in favour of Mst. Safia Tanveer, accused. Even prior to such amendment, the Courts were also in favour of extending the concession of bail to the female accused. Our this view finds support from the case reported as Mst. Afsar Bibi v. The State [2005 P.Cr.LJ. 164] in which it was held that the case of a woman is covered under the first proviso to Section 497, Cr.P.C., entitling her to be released on bail. The same view has been expressed in the cases reported as Mst. Sadiqa Shaheen v. The State and others [1997 M LD 993] and Mst. Raheema v. The State [2003 YLR 193].
' Thus, for the above-stated reasons the appeal filed by the complainant having no substance is hereby dismissed. While accepting the appeal filed by Mst. Safia Tanveer and Daood Khan, they are enlarged on bail in the alleged offences under Sections 202, 109, 302, 34, A.P.C. in F.I.R. No. 52/2014 subject to the condition that if each of them furnishes bail bond in the sum of Rs.
50,00,000/- (five million) and the surety bonds in the like amount consisting of two sureties residents of the State of Azad Jammu & Kashmir as well as the personal bond in the amount to the satisfaction of any Judicial Magistrate First Class Sehnsa. They shall be released from the custody forthwith if not required in any other case or offence.