MOHAMMAD AZAM KHAN, C.J.---A case in the offences under sections 302, 34, 147, 148, 149, A.P.C. read with section 13 of the Arms Act, 1965 was registered at Police Station Afzalpur on a report made by the complainant/appellant, Akbar Ali. He reported that, he is resident of Bahrwal, Tehsil Kharian, District Gujrat. His brother-in-law Ghulam Subhani, is resident of Samahni, District Bhimber.
He had relations with Mst. Shamaila Ghazanfar daughter of Ghazanfar Ali, resident of village Turnaal. On 2nd October, 2012, he along with his friends, Muhammad Tahir and Muhammad Asghar came to the Shrine at Kharhi Sharif, wherefrom he was called for on telephone and invited at home by said Shamaila Ghazanfar. He went to her house where he was murdered by her with the pre- planning and connivance of 4/5 other persons. During the course of investigation, the accused- respondents were found guilty for the offence of murder and arrested by the Police. All the accused-respondents applied for release on bail before the Additional District Criminal Court, Mirpur. The Additional District Criminal Court, Mirpur through order dated 31st December, 2012 released the accused-respondents, Shamaila Ghazanfar and Nasir Idrees on bail while the bail application of the accused, Muneer Ahmed was dismissed. The application for grant of bail to Tabassum Younis was also dismissed on 25th April, 2013 by the Additional District Criminal Court.
The Shariat Court granted the bail to accused, Muneer Ahmed and Tabassum Younis on 20th February, 2013 and 10th July, 2013, respectively. The Additional District Criminal Court, Mirpur refused to grant the bail to Mubeen Liaquat on 15th April, 2013. A learned single Judge in the Shariat Court through judgment dated 11th May, 2013 released the accused, Mubeen Liaquat on bail, while the revision petition filed by the complainant/appellant, Akbar Ali for cancellation of bail granted to Nasir Idrees and Shamaila Ghazanfar was dismissed. The complainant/appellant has filed all the three appeals from the judgments of the Shariat Court for cancellation of bail granted to the accused-respondents. Since all the appeals arise out of the same occurrence, therefore, these are proposed to be decided through a common judgment.
2. Raja Khalid Mehmood Khan, Advocate counsel for the appellant argued that the judgments of the Shariat Court in all the cases are against law and the record. The deceased had acquaintance with Shamaila Ghazanfar. The deceased came to the Shrine at Kharhi Sharif along with his friends, Muhammad Tahir and Muhammad Asghar, wherefrom he was called for and invited by Shamaila Ghazanfar at her house on telephone with pre-planning. On reaching her house, he was murdered by Shamaila Ghazanfar with the connivance of other accused persons. The learned counsel submitted that although there is no direct evidence available but from the disclosure made by the accused-respondents before the police during the investigation, it appears that the whole incident occurred in the night time. The deceased was forcibly abducted from the house of Shamaila Ghazanfar. The learned counsel submitted that the licensed gun of the father of Shamaila Ghazanfar was borrowed by the deceased. It was in the house of deceased and later on it was produced by the complainant before the investigating officer. The license of the gun was produced by the father of Shamaila Ghazanfar. This is a strong link for establishing the fact that Shamaila Ghazanfar had connection with the deceased. The learned counsel argued that during the investigation cellular phone of Shamaila Ghazanfar was recovered, the record of which reveals that Shamaila Ghazanfar used to talk, frequently, with the deceased on telephone and from the call record of the cellular phone of the deceased it is also proved that at the relevant time of murder, she called for the deceased at her home. This is a strong proof against accused, Shamaila Ghazanfar. The learned counsel submitted that the prosecution has collected sufficient material against the accused-respondents. The cellular phone was recovered from accused, Ishtiaq Hussain. From the call data of said cellular phone it is proved that he was called for at the relevant time by the other accused persons. He reached at the place of occurrence on the motorcycle of Nasir Idrees which was also recovered on his pointation. The learned Counsel argued that cell phone was recovered from accused, Muneer Hussain. Accused, Muneer Hussain and Ishtiaq Hussain hatched the whole conspiracy with accused, Shamaila Ghazanfar and in the result she called for the deceased at home. Muneer Hussain accused kept watching the situation for whole time. He demanded from the accused Rs.1,00,000/- and 222 bore-gun. The call record of all the accused corroborates the version that at night time they remained in connection with each other.
The learned counsel argued that a chain was recovered at the instance of accused, Mobeen Liaquat. According to the prosecution version, the deceased was got tied with the said chain, therefore, the said accused is connected with the offence. The learned counsel submitted that the accused, Tabassum Younas is fully connected with the crime. A 30 bore crime empty has been recovered from the place of occurrence on his pointation wherein the accused, Afzaal fired upon the deceased. The learned counsel argued that a vault belonging to deceased, his cell phone and a copy of passport was recovered from the accused, Tabassum Younas on the basis of which, he is fully connected with the crime. The learned counsel submitted that on the basis of the above referred evidence all the accused are fully connected with the crime. No case of further inquiry is made out. The trial Court as well as the Shariat Court incorrectly delivered the judgments, released and maintained the bail orders of the accused respondents. He requested for cancellation of the bail granted to the accused-respondents.
3. While controverting the arguments, Mr. Khalid Rasheed Chaudhaiy, Advocate, counsel for Mobeen Liaquat, argued that it is an unseen occurrence. There is even not an iota of evidence against the accused respondent. The act of firing is attributed to Afzaal, accused who is an absconder. The learned counsel submitted that the trial Court while refusing the grant of bail at one hand has observed that the witnesses have stated nothing against the accused, Mobeen Laiquat but on the other hand, refused to grant the bail. The Shariat Court correctly granted the bail to the accused-respondent. No ground for cancellation of bail is available. The learned counsel relied upon the cases reported as Muhammad Asghar v. Arshad Anwar and another [2010 SCR 491], Waqar Aslam v. Zargham Haider Shah and another 2012 YLR 1880 and Nazir Ahmed and 3 others v. Ghulam Hussain and another [2014 SCR 409].
In the case reported as Muhammad Asghar v. Arshad Anwar and another [2010 SCR 491], it was observed that this Court in a number of cases has held that the grounds for cancellation of bail are quite different as compared to grant of bail. Once the bail is granted by a Court of competent jurisdiction, it can only be recalled by this Court if it appears to be perverse, arbitrary and without any reason or in violation of law.
In the case reported as Waqar Aslam v. Zargham Haider Shah and another 2012 YLR 1880 it was observed that once an accused person is granted bail by a Court of competent jurisdiction, it requires a very strong evidence connecting the accused with the commission of alleged non- bailable offence for cancelling his bail.
In the case reported as Nazir Ahmed and 3 others v. Ghulam Hussain and another [2014 SCR 409], this Court observed that 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.
4.Mr. Abdul Hameed Khan, Advocate, while arguing on behalf of accused-respondents, Shamaila Ghazanfar and Nasir Idrees, submitted that no case is made out against the accused- respondents. There is even not an iota of evidence for connecting the accused respondents with the alleged offence. The learned counsel submitted that the trial Court granted bail to the accused-respondents. The revision petition filed for cancellation of bail granted to them by the trial Court was dismissed by the Shariat Court. The Courts below have exercised its discretion in a judicious manner. This Court seldom interfere with the discretion exercised by the Courts below. He requested for dismissal of the appeal.
5.Mr. Bostan Chaudhary, Advocate, while arguing on behalf of accused, Muneer Hussain, submitted that there is no evidence against the accused respondent. He was rightly released by the Shariat Court on bail. Only evidence against the accused, Muneer Hussain, is that a cellular phone has been recovered from him but how he is connected with the offence by the recovery of cell phone, is not shown. His case falls in the ambit of further inquiry.
6.Raja Inamullah, Advocate counsel for the accused-respondents, Mohsin Yaseen, Ishtiaq Hussain and Tabassum Younis, argued that the judgment of the Shariat Court is perfectly legal. The persecution failed to collect the evidence against the accused-respondents. The learned counsel referred to FIR and the note put by the SHO and submitted that the deceased was found in an injured condition in the early hours of the day near a petrol pump. The police was informed. The injured was brought to District Headquarter Hospital, Mirpur by the police. In the-way he succumbed to the injuries. The police has not stated that he made any statement before the police. A false case has been registered by the complainant against the accused-respondents.
The Shariat Court has exercised its discretion in a judicious manner. He requested for dismissal of appeal.
7.Mr. Mehmood Hussain Chaudhary, Additional Advocate-General, argued that the judgments of the Shariat Court in all the three appeals are not maintainable. The accused are fully connected with the crime. During the course of investigation, it has been found that all the accused actively participated in the murder of the deceased. The offence has been committed in a brutal manner. A specific role has been attributed to every accused, thus they are fully connected with the commission of offence.
8.We have heard the learned counsel for the parties and perused the record. Akbar Ali son of Muhammad Sharif resident of Baharwal, Tehsil Kharian presented a written application to the SHO, Police Station, Afzalpur at District Headquarter Hospital, Mirpur wherein, he has stated the facts as referred to in the opening, paragraph of the judgment. The SHO, after receiving the application sent the same to the Police Station Afzalpur for registration of the case. A note by the SHO, appended with the FIR is very much important which is reproduced as under:-- {{URDU TEXT}} It appears from the note appended by the Police with the FIR that the deceased was found in an injured condition in a Patrol Pump at Chabrian Gujran at 4:00 a.m. The police was informed, whereupon the police reached there. The police proceeded to shift the injured to hospital but he succumbed to the injuries before reaching the hospital. The deceased, except his name and address, told nothing else to the police. The complainant, Ali Akber presented the application to the SHO in the hospital wherein he alleged that the deceased was called for by Mst. Shamaila Ghazanfar on telephone where he was murdered by 4/5 persons. The complainant has not disclosed the source that how he acquired the knowledge that the deceased had gone to the house of Mst. Shamaila Ghazanfar and he was murdered by her with the connivance of 4/5 other persons. Even, in his statement recorded under section 161, Cr.P.C., he has not disclosed the source.
He has only stated that the deceased had gone to Shrine at Kharhi Sharif along with his friends, Muhammad Tahir and Muhammad Asghar. Nothing is on the record that Muhammad Tahir and Muhammad Asghar have uttered even a single word that they have disclosed to the complainant that the deceased was called by Mst. Shamaila Ghazanfar and he was murdered by her with the connivance of 4/5 other persons. Although, they have got recorded lengthy statements but it is clear that they have not told to the complainant about the incident.
9. It is admitted that the case is of circumstantial evidence and no direct evidence in the case is available. The case is mainly based upon the disclosure made by the accused-respondents before the police. From the evidence collected by the prosecution, it appears that the deceased, two prosecution witnesses, Muhammad Tahir and Muhammad Asghar and some of the accused were mutual friends. They assembled at the Shrine of Kharhi Sharif. The deceased went, alone to the house of Mst. Shamaila Ghazanfar and according to the statement of Muhammad Tahir, the deceased made a call on telephone that some people have cordoned off the house of Shamaila Ghazanfar, he is unable to escape and requested them to rescue him. The prosecution alleged that he was forcibly abducted from the house of Mst. Shamaila Ghazanfar. No evidence to this effect has been collected by the prosecution. There is no sufficient material to connect the accused- respondents with the alleged offence. At bail stage only a bird eye view of evidence has to be made and deeper appreciation is not permissible. The accused, Shamaila Ghazanfar, Nasir Idrees were released on bail by the trial Court whereas, the accused, Muneer Ahmed, Mohsin Yasin, Ishtiaq, Tabassum Younis and Mobeen Liaquat were released on bail by the Shariat Court.
10. This Court in a number of cases has observed that when the bail is granted to an accused by the Court of competent jurisdiction, very strong reasons are required to cancel the same. The grounds for grant of bail are altogether different as C compared to cancellation of bail. The discretionary powers exercised for grant of bail by the trial Court and the Shariat Court are normally not interfered with by this Court. In the case reported as Zaffar Mehmood v. Muzaffar and another 2014 PCr.LJ 1512, it was observed as under:- "It may be stated that at the bail stage only the tentative assessment of the record i.e. FIR, statements of the witnesses recorded under section 161, Cr.P.C., the medico legal report and of course defence plea, if any, raised by the accused have to be considered. Deeper appreciation of evidence is not permissible at the stage of bail. This Court normally does not interfere with the discretion exercised by the Shariat Court unless the discretion is found capricious, against the settled norms governing the bail matter and against the record. The question of cncellation of bail does not stand on the same pedestal as the rules governing the grant of bail are different than the one applicable for cancellation of bail. Once the bail is granted by a Court of competent jurisdiction very strong reasons are required for its cancellation...."
Again in the case reported as WAPDA and another v. Shahid Mehmood and 2 others [2014 SCR 579].
It was observed as under:-- "... The matter of cancellation of bail has to be considered by the Courts altogether from a different angle as compared to that of grant of bail. The rules governing the grant of bail stand at a different footing as compared to cancellation of bail. Normally this Court refrains from cancelling the bail where the trial Court and the High Court has exercised discretion in a judicious manner. Of course, this Court has jurisdiction to cancel the bail if it is found that the order passed by the Courts below is capricious, against the record or against, the settled rules governing the bail matters."
11. From the perusal of whole record, we are of the view that the discretion exercised by the trial Court and the Shariat Court for release of accused on bail is perfectly legal and in accordance with law and rules governing the bail matters, thus no interference is warranted by this Court.
12.The result of the above discussion is that finding no force in these appeals, these are hereby dismissed.
Before parting with, we may observe that the observations made by this Court are tentative in nature and shall not affect the case of either party.