' Raja Saeed Akram Khan, J.--This appeal has been directed against the order of the Shariat Court of the Azad Jammu & Kashmir dated 20.6.2012, whereby revision petition against the order of the District Criminal Court, Bhimber dated 26.4.2012 has been dismissed.
2. The relevant facts arising out of this appeal are that a case under Sections 302, 324, 337-A, 337-F, 109 and 34, APC, was registered at Police Station Bhimber under F.I.R. No, 194 on the complaint of Nazir Ahmed son of Mian Khan. The allegations levelled in the FIR were that on the report of the Committee comprising of the villagers Barsali that Ghulam Hussain, Muhammad Ashraf and Asjad have illegally occupied the pasture i.e. The common property of the village, the police reached at the place of occurrence at 12:00 a.m. On 11th December, 2012. The police bound Ghulam Hussain and others to come at Police Station at 3:00 p.m., so that the dispute may be resolved. The police returned to the Police Station and the villagers started to go back to their homes except complainant, Fazal Hussain, Muhammad Hussain, Muhammad. Shaft, Muhammad Bilal, Muhammad Ilyas, Ashraf and some others. At 1:00 p.m. Accused, Muhammad Ashraf, Asjad, Waqar and Adnan Bashir armed with deadly weapons, who were hiding themselves near the place of occurrence, suddenly appeared and raised Lalkara that no one shall go alive. They started firing.
Muhammad Ashraf, accused fired shots with Kalashnikov, which hit Fazal Hussain and Bilal. Waqar Bashir and Asjad, accused fired upon Muhammad Shaft, whereas Adnan Bashir fired at Muhammad Hussain. All the injured person fell down. The complainant, Nazir Ahmed and others ran away from the place of occurrence and raised hue and cry, upon which some other people from the locality reached there. The accused also ran away from the place of occurrence while firing. The injured were being taken to the hospital where on the way Fazal Hussain succumbed to the injuries. The motive behind the occurrence is stated to be the dispute over the pasture illegally occupied by the accused. The occurrence is stated to be witnessed by Haji Bahadar Ali, Ashraf Mahmood and Muhammad Ilyas besides the complainant, Nazir Ahmed. After being arrested, the accused-respondent along with another accused applied for grant of bail before the District Court of criminal jurisdiction, Bhimber. The trial Court vide order dated 26.4,2012 granted the bail to the accused. The order of the trial Court was challenged before the Shariat Court through a revision petition. The learned Shariat Court vide impugned order dated 20.6.2012 dismissed the revision petition, which is the subject matter of this appeal.
3. Raja Mazhar Iqbal, Advocate, the learned counsel for the appellants has argued that this is a case of direct evidence. There was tangible evidence against accused-respondent, who is the master mind of the whole occurrence as a result of which three innocent persons have lost their lives but the trial Court without looking into the record made available, arbitrarily granted the bail to the accused. He added that the accused-respondent is previously convicted person and there is strong apprehension that he would repeat the act and such like criminal was not entitled to be released on bail. He further argued that the prosecution has collected sufficient material to connect the accused in the case, but both the Courts below have failed to take into consideration the same. He further added that a Kalashnikov was recovered from the accused-respondent whereupon a separate FIR under Section 13 of the Arms Act, 1965 was registered against him. He next added that the accused-respondent was lodged in the Jail in another criminal case but he ran away from the District Jail, Mirpur and in this regard a case was registered against him but both the Courts below have fell in. Error while not taking into consideration the previous conduct of the accused-respondent, which disentitled him to any sort of discretionary relief. He further maintained that the principal accused, who is real brother of the accused-respondent still absconded and accused respondent is facilitating him from being not arrested. He added that the Courts below have also not examined the record that accused-respondent is the owner of the land, which is adjacent to the meadow i.e. a common property of the village and he tried to occupy the same illegally. When the village community protested against the illegal act of the accused- respondent, he along with other co-accused managed and planned in the consequence of which three innocent persons have been murdered. He further submitted that it is a broad day light occurrence and the FIR was promptly lodged, therefore, there is no question of false implication. All the prosecution witnesses are natural witness, who have fully implicated the accused-respondent along with other co-accused while recording statements under Section 161, Cr.P.C, but both the Courts below have failed to examine the record in its true perspective while granting the bail to the accused-respondent.
4. On the other hand, Syed Faizan Haider, Advocate, the learned counsel for accused-respondent, while controverting the arguments of the learned counsel for the appellants, argued that the judgments of both the Courts below are perfect and legal, The trial Court has rightly exercised the discretion in favour of the accused-respondent while granting the bail and the same has rightly been upheld by the Shariat Court. He added that while dealing with the bail matter, Courts are supposed to make a tentative assessment and not supposed to go into the deeper appreciation of evidence. He further added that no overt act has been attributed to the accused-respondent during the occurrence and the only allegation levelled against him is that on his instigation the whole occurrence took place. He further added that the trial is already in progress and the statements of two prosecution witnesses have been recorded. In such like situation, the Courts are always reluctant to interfere with the discretion exercised by the trial Court when the accused is no more required by the police for investigation. He further argued that nothing has been brought on the record with reference to misuse of concession of bail, which is one of the ground for cancellation of bail. He next added that the respondent remained in Jail for a period of more than four months. No incriminating material was recovered during the investigation. Moreover, it is yet to be determined as to who was aggressor.
5. Raja Ghazanfar Ali Khan, Advocate-General, also adopted the arguments of the learned counsel for the complainant appellants.
6. We have heard the learned counsel for the parties and also gone through the impugned order along with the record made available. The allegation levelled against the accused-respondent is that he was one of the main actors, who played the role in the occurrence and on his instigation the whole occurrence has taken place. Nothing has been brought on record that he has made any over act during the occurrence. The challan has already been submitted in the Court of competent jurisdiction and the trial is in progress. In such situation when trial is already commenced, the superior Courts are always slow to interfere with unless some patent illegality comes on record. It is also matter of record that the statements of two witnesses have already been recorded. There is no allegation against the accused-respondent that he has misused the concession of bail.
7. It is settled principle of law that once bail has been granted by a Court of competent jurisdiction, there must be overwhelming circumstances to cancel the same. This Court has to see whether the discretion conferred upon the trial Court has been exercised judiciously by considering the relevant facts and if the Court while granting the bail has not violated the principles laid down for grant of bail, its cancellation is not proper as held in a case reported as Suba Khan us. Muhammad Akmal and 2 others 2006 SCM R 66). For convenience, the relevant paragraph of the referred judgment is reproduced as under: "This is settled rule that if the Court while granting bail has not violated the principles laid down for grant of bail, the cancellation is not proper. The mere fact that there could be another opinion of the matter to that of the opinion formed by the Court on the basis of tentative assessment of the evidence, would not be sufficient ground to cancel the bail if in the light of the facts of the case, it cannot be found to have qualified the test of calling further inquiry into the guilt or innocence of an accused in terms of sub section (2) of section 497, Cr.P.C."
8. It is evident from the record that the trial of the case is in progress, however, the same has not been concluded as yet. In such like situation, this Court is always reluctant to interfere with the orders relating to bail matters particularly in a case when the trial was going on, so as to avoid the discussion and remarks on the merits of the case. In this regard reliance can be placed on a case reported as Mian Dad u. 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 suppqrt 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."
' Similarly in a case titled Zia-ul-Hassan Shah & another v. The State (1996 SCR 238], it has been observed by this Court as under: It may be pointed out here that in bail matters, this Court does not ordinarily interfere with the discretion exercised by the Courts below. If an order pertaining to bail matter does not suffer from any legal defect which patently shakes the prosecution story, this Court is always slow to interfere in the discretion exercised by the Court below."
9. The principle laid down by the superior Courts regarding the grant of bail and cancellation of the same are quite different. As we I have observed in the preceding Para that once bail has been granted, same cannot be cancelled unless it is found that the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice. In this regard reliance can be placed on a case reported as Muhammad Akram us. Zahid Iqbal and others (2008 SCR 1715).
10. As it is alleged that a number of persons participated the occurrence, therefore, the liability is yet to be determined as to who was aggressor in the case, which can only be done after recording the evidence, which is the job of the trial Court. Even otherwise, the bail is not acquittal; it is only a change of custody. It is a celebrated principle of law that considerations for cancellation of bail are quite different and once bail has been granted by a Court of competent jurisdiction, there must be overwhelming circumstances to cancel the same. Our this view finds support from a case reported as Ghulam Rasool us. Khadim Hussain and 5 others (2004 SCR 209), wherein while resolving the same point it has been held as under: "At this stage we cannot substitute our own' view as the Shariat Court and both the Courts below have exercised their discretion in allowing the bail to the accused respondents. It is totally different to cancel a 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 apprehensive and cruel, but at this stage we refrain to substitute our view into that of the Courts below."
' In the last paragraph of the referred judgment, it has been further held that: "Unless some plausible explanation is furnished in the statement of complainant, the bail already granted to him cannot be cancelled in vacuum. So far the rest of the accused are concerned, their bail has rightly been granted by the Courts below as well as by the Shariat Court."
11. While attending the argument of the learned counsel for the appellants that the accused- respondent is previously convicted and he was also involved in the guilt of Jail breaking but when the learned counsel was confronted to refer to any material in support of his argument, he failed and submitted that the accused-respondent was later on acquitted of the charge. As the accused-respondent has not been convicted by any Court of law, therefore, mere registration of number of cases against the person does not disentitle him for concession of bail if otherwise he is entitled. Therefore, this argument has no force, the same is hereby repelled.
12. So far the argument of the learned counsel for the appellants that the principal accused, who is the real brother of the accused-respondent, is still at large and the accused-respondent is facilitating him to avoid the arrest by the police is concerned, a query is made to the learned Advocate-General that what measures have been adopted by the law enforcing agencies for the arrest of the accused, he stated that the police is making hectic efforts to arrest the accused, but we have failed to find out any such efforts from the record. Therefore, the prosecution cannot be absolved of its duty to get the accused arrested or if the accused has absconded, to proceed against him under law.
13. What has been discussed above, we are of the view that after making tentative assessment of the material, the discretion exercised by both the Courts below in favour of the accused- respondent is not fanciful or arbitrary rather the same is in consonance with the law laid down by the superior Courts governing the bail matters. Therefore, the judgments of both the Courts below are just and proper, which do not call for any interference by this Court.
' The nutshell of the above discussion is that finding no force in this appeal, the same is hereby dismissed. It may be observed here that the observations made by this Court are tentative in nature and the trial Court shall not be influenced by it and shall decide the case on its merit.