1. MOHAMMAD AZAM KHAN, C.J.---After being arrested in a case under sections 302, 324/34, 337, 147, 148 and 149, the petitioners filed an application for grant of bail in the District Criminal Court, Muzaffarabad. The District Criminal Court, Muzaffarabad, through judgment dated 25th June, 2014 dismissed the application. The petitioners filed a revision petition in the Azad Jammu and Kashmir Shariat Court under section 25 of IPL. The same was dismissed through the impugned judgment on 24th September, 2014, hence, this revision petition under section 25 of IPL, 1974.
2. Kh. Muhammad Nasim, Advocate, the counsel for the petitioners, submitted that the judgment of the High Court is against law and the record. There is no case against the petitioners. According to the prosecution story, the prosecution party was going to attend a meeting (12) on the invitation of the accused-petitioners, Khalid Mehmood when the occurrence took place. The allegation against the accused, Khalid Mehmood, is that he raised lalkara that no one will be spared alive and caught hold of the father of the complainant. Tahir Rasheed, accused, inflicted a dagger blow on the left thigh of the deceased, who died due to the said injury. The witnesses are close relatives except two.
2. The statements of two independent witnesses, Unees son of Hafeez and Naveed son of Gul Zaman, were recorded by the Police, who stated that Khalid Mehmood was not present at the time of the occurrence. He reached on the place of the occurrence, when it had already taken place. He referred to the report under section 173, Cr.P.C. filed by the - Police. The supplementary challan was filed without fresh investigation. This creates doubt in the prosecution story and the case falls in further inquiry. The learned counsel submitted that the Shariat Court has refused to grant bail on the ground that the accused Khalid Mehmood facilitated the murder of the deceased. The two independent witnesses, Unees and Naveed, in their statements denied the presence of Khalid Mehmood at the place of occurrence, how he could facilitate the murder when he was not present at the place of occurrence. In this situation, the case against Tahir Rasheed also becomes doubtful.
3. The learned counsel relied upon cases reported as The State v. Matloob Hussain Shah (1983 PCr.LJ 745), Muhammad Ameen and another v. Muhammad Yaseen and another (2004 SCR 369) and State through Advocate-General, Circuit Mirpur, AJ&K v. Muhammad Younas and 3 others (2013 SCR 92).
4. The case titled The State v. Matloob Hussain Shah (1983 PCr'.LJ 745), came before this Court in the circumstances that the bail was granted to the accused Matloob Hussain by the High Court on the ground of old age and allegation of facilitation of murder. The appeal for cancellation of bail was moved in this Court. This Court refused to cancel the bail on the ground that the accused is an old man of 63 years and only charge against him is that he facilitated the principal accused. It was observed by the Court that it is not the principle of universal application that in all the cases where the accused has caught hold a person such person shall necessarily be released on bail.
5. In the case titled Muhammad Ameen and another v. Muhammad Yaseen and another (2004 SCR 369), the accused Muhammad Yaseen was released on bail by the District Criminal Court under section 302/34, P.P.C. A revision petition for cancellation of the bail was filed in the Shariat Court.
6. The Shariat Court dismissed the revision petition. An appeal was filed in this Court. This Court dismissed the appeal while declaring that the allegation against the accused-respondent is only of raising lalkara. He was empty handed and true import of lalkara shall be ascertained after recording the evidence of the prosecution. The case falls in further inquiry. The Supreme Court declined to cancel the bail.
7. In the case titled State through Advocate-General, Circuit Mirpur, AJ&K v. Muhammad Younas and 3 others (2013 SCR 92), the accused was released on the bail in case under section 302/34, P.P.C., on the ground of advanced age. The allegation against the accused was only of raising lalkara. The appeal for cancellation of bail was filed in this Court. This Court declined to cancel the bail on the ground that the accused is of advanced age and mere proverbial lalkara is attributed to the accused respondent. No other overt act is attributed to him, as such the case, apart from advanced age, also falls in further inquiry.
3. While controverting the arguments of the learned counsel for petitioners, Ch. Shoukat Aziz, Additional Advocate-General, submitted that the accused was nominated in the FIR, which was promptly lodged. He caught hold of the deceased and Tahir Rasheed inflicted dagger injury.
8. Medico-legal report is supportive of the prosecution story. There are three eye-witnesses of the occurrence, who fully support the prosecution version in their statements under section 161, Cr.P.C.
9. The two witnesses Unees and Naveed were not nominated in the FIR. The D.S.P., Incharge of the investigation was near relative of the accused, who planted the said witnesses. This fact came in the knowledge of the complainant party when the challan was filed in the Court, thereafter, they filed an application for re-investigation. In reinvestigation both the witnesses, Unees and Naveed filed affidavits before the Investigating Officer that they have not recorded any statement. Their statements are fabricated. On the basis of the said investigation, supplementary challan was filed.
10. All the accused are fully connected with the crime. The accused committed the crime in a pre- planed manner. They are not entitled for concession of bail. He requested for dismissal of revision petition. The learned counsel relied upon the judgment of this Court titled Muhammad Younis v.
11. Zameer (Cr!. Appeal No, 5/2004, decided on 12th December, 2014).
12. 4.Raja Manzoor Khan, Advocate, the counsel for the complainant, argued that the judgment of the Shariat Court is perfectly legal. The accused have been nominated in the FIR, which was promptly lodged. There are five eye-witnesses of the occurrence. All of whom are injured. Their injuries are proved from medico legal report and the injured witnesses fully corroborated the prosecution version. The learned counsel argued that there was previous enmity between the accused Khalid Mehmood and the deceased. Khalid Mehmood sent a message to the deceased for convening a meeting for resolving the dispute of land and when the deceased along with his companions were going to attend the meeting, all the accused were waiting for the complainant party in armed position. As soon as they reached on the place of occurrence, Khalid Mehmood, accused, raised lalkara that no one shall be spared alive and caught hold of the deceased. The accused, Tahir Rasheed, inflicted dagger injury on the left thigh of the deceased, due to which he died within a short span of time. The learned counsel submitted that D.S.P., investigating the matter was a near relative of the accused party, who after a period of four months, recorded the statements of two witnesses, Unees and Naveed, under section 161, Cr.P.C. The statements recorded after such a long time, cannot be considered. In reinvestigation these two witnesses filed affidavits before the Investigation Agency that they have not recorded any statement before the Police Officer. The prosecution has collected sufficient evidence against the accused-petitioners, from which the accused are fully connected with the crime and their case does not fall in the ambit of further inquiry. He requested for dismissal of the appeal.
13. 5.We have heard the learned counsel for the parties and also perused the record. Respondent No,2 Adil Hussain, on 31st January, 2014 filed a written report against the petitioners and others alleging, therein that Khalid son of Noor Asghar Khan, sent a message to the deceased, the father of the complainant on 31st January, 2014 to comeon the road to resolve the dispute regarding the land.
14. His father, Matloob Hussain along with the applicant, Raja Masood son of Raja Akhtar, Afzaal, Banaras and Dilbar sons of Raja Shoukat Khan, Raja Ajab, Raja Akhtar son of Raja Mehboob were going to attend the meeting (4) at 7 p.m., when they reached near the shop of Raja Safeer Khan all the accused armed with the knives, the daggers and the Dandas were standing on the way. Khalid son of Noor Asghar raised lalkara that kill all of them and caught hold of his father while Tahir Rasheed, accused, hit on the back side of the left thigh with the dagger, he was seriously injured and died on the spot. He gave details of the facts that what role was played by each of the accused. On hue and cry, Raja Hafeez son of Ali Ummar Khan, Raja Khalid Ahmed, son of Muhammad Hussain, Raja Shoukat son of Raja Mehboob Khan residents of Botha reached on the spot and witnessed the occurrence and also rescued them from the accused persons. On this report, a case under sections 302, 324, 337, 147, 148 and 149 was registered at the Police Station, Muzaffarabad. The accused-petitioner, herein, were arrested along with the others. After being arrested, they filed a bail application in the District Criminal Court, Muzaffarabad, which was dismissed. Dissatisfied, they filed revision petition in the Shariat Court. The Shariat Court declined the bail to the petitioners.
15. 6.It may be stated that at the bail stage only a cursory view of the evidence has to be taken.
16. Deeper appreciation of evidence is not permissible, but a bail application cannot be decided in vacuum. The record made available i,e, the FIR, the statements of the prosecution witnesses recorded under section 161, Cr.P.C., medico legal report and of course the version of the accused, if any, has to be considered for the purpose.
17. 7.The allegation against the accused-petitioners, Khalid Mehmood, is that there was a dispute of the land between the accused and the father of the complainant, Adil Hussain. Khalid Hussian invited the deceased for settling the dispute of the land. When they were going to attend the meeting (12), the accused were waiting for them in a pre-planned manner. Khalid Hussain, raised lalkara for doing away all the persons along with the deceased and caught hold of the deceased.
18. Tahir Rasheed inflicted a dagger blow at the left thigh of the deceased. Due to the said injury, the deceased died after some time. The other accused also injured the witnesses. Five eye-witnesses, Raja Hafeez Khan son of Raja Ali Imran, Raja Khalid son of Muhammad Hussain and Raja Shoukat son of Raja Mehboob Khan, are nominated in the FIR. Their statements under section 161, Cr.P.C. were recorded. They fully implicated the accused-petitioners with the offence. Raja Shoukat son of Raja Mehboob, Raja Dilbar son of Raja Shoukat, Raja Banaras sons of Raja Shoukat, Raja Afzaal son of Raja Shoukat and Raja Ajab son of Raja Matloob Hussain, witnesses were injured in the occurrence. The statements of injured witnesses cannot be brushed aside ordinarily.
8. Khalid Mehmood sent a message to the deceased to come on the road for settling the dispute in respect of the land. When the complainant party reached there, he raised lalkara for doing away the lives of the complainant party and also caught hold of the deceased and facilitated the accused Tahir Rasheed to do away the deceased. The true import of lalkara has to be judged after recording the evidence but at bail stage, lalkara has to be looked in the light of total circumstances of the case. Whether mere lalkara is sufficient for refusing the bail to a person involved in the case under section 302, Cr.P.C. or it has to be looked that apart from lalkara the accused has done something more in furtherance of lalkara. If the accused is attributed mere lalkara then too, it has to be looked upon that what is the effect of mere lalkara. If a person who is attributed mere lalkara has an influence upon the other co-accused, who being under his influence are bound to accept this, then mere lalkara is sufficient for refusal of bail, but where there is no such situation, an accused who is attributed lalkara has no influence over the other co-accused, he cannot be refused bail on the basis of mere lalkara. Where an accused person apart from raising lalkara is attributed some other overt act, then such person is not entitled for concession of bail. It was observed in para 6 of the case reported as State through Advocate General, Circuit Mirpur, AJ&K v.
19. Muhammad Younas and 3 others (2013 SCR 92) as under:- "6. Lalkara assumes importance in a criminal case, moreso at bail stage if the Court is of the opinion that in the given circumstances, unless such lalkara was raised, the: rest of accused couldn't have fired. It would be an active role if the two sides having confronted each other and one of the participants asks his co-participants to resort to violence i.e use of weapons. Without lalkara occurrence couldn't have been resulted in such an end. Such type of lalkara can be termed as command and not merely proverbial lalkara. No hard and fast rule regarding the effect of lalkara for the purpose of bail can be determined and the significance, importance and implication of lalkara is to be laid down with reference to the context in which the same is uttered. The chain of facts and circumstances has to be viewed and analyzed. We may observe here that in the FIR the only allegation of lalkara to do away with the other companions of the deceased has been levelled against the accused-respondent and no other active role has been attributed to him, therefore, the allegation of lalkara for the purpose of bail would fall within the scope of proverbial lalkara and would make a case of further probe...."
20. Khalid Mehmood, accused-petitioner had a dispute of land with the deceased and he sent a message to him to come and settle the dispute. According to the eye-witneses, the accused party with per-planning was standing on the road and attacked upon the complainant party when Khalid, accused raised lalkara. It was not mere proverbial lalkara. He caught hold of the deceased and facilitated Tahir Rasheed to stab the deceased, who died due to this injury. From the record the accused, Khalid is not entitled for concession of bail. There is no illegality in the judgment passed by the trial Court as well as the Shariat Court. Tahir Rasheed is attributed fatal dagger blow to the deceased due to which he died.
21. The eye-witnesses, who were injured, have stated in their statements recorded under section 161, Cr.P.C. that Tahir Rasheed inflicted dagger blow to the deceased on the back side of his left thigh due to which he died. His case doesn't fall in the ambit of further inquiry. Prima facie he is connected with the crime.
9. We have also considered the argument of the counsel for the appellants that in the first challan the investigating Agency observed that two witnesses, Naveed and Unees have stated that Khalid, accused, was not present at the time of occurrence. He reached at the place of occurrence after the occurrence had already been taken place. These are independent witnesses. We have carefully gone through the whole record. Unees and Naveed were not nominated as witness in the FIR. Their statement, under section 161, Cr.P.C. was recorded after a period of four months and according to the prosecution when the fact came in the knowledge of the complainant party they filed application for reinvestigation and in the second investigation, these two witnesses filed the affidavits before the Investigating Officer that they have not got recorded any statement before the Investigating Officer. Five witnesses, who are injured eye-witnesses, stated in their statements that Khalid, accused raised lalkara and also caught hold of the deceased. The statements of five witnesses, who are injured witnesses, cannot be brushed aside. This cannot be a ground for grant of bail. This Court in a recent judgment titled Muhammad Younus v. Zameer Hussain and others (Criminal Appeal No, 5 of 2014, decided on 12th December, 2014) cancelled the bail granted to the accused respondent, who facilitated the murder by catching hold of the deceased. It was observed in para 7 of the referred judgment as under:- "7. After taking into account the material available on record there is no second thought that the accused--respondents actively participated in the occurrence in furtherance of their common intention. We are conscious that principle for grant of bail and cancellation of bail are quite different and for cancellation of bail there must be some overwhelming and extraordinary circumstances, but in the case in hand, the circumstances as floated on the surface of the record, lead us to believe that the accused-respondents are the persons who facilitated the main accused in the commission of the offence of murder. As by catching hold of the deceased, the accused- respondents deprived him of his right of defence and if they did not facilitate the main accused, there was possibility that the deceased may save himself..."
22. It is settled law that this Court ordinarily doesn't intervene in the discretion exercised by the trial Court and the Shariat Court unless it is found capricious, arbitrary and against the principles governing the bail matters. There is no illegality in the judgment passed by the Shariat Court. The revision petition is dismissed.