Raja Saeed Akram Khan, J- Both; the captioned appeal as well as the revision petition are outcome of the same occurrence/FIR. The appeal has been filed against the judgment of the Shariat Court dated 12.08.2015, through which the revision petition filed by the accused- appellant, Muhammad Farooq, for grant of bail has been dismissed, whereas, the revision petition has been filed against the judgment/order or the Shariat Court dated 09.03.2016, whereby the revision petition filed by the accused-respondent, Muhammad Mustafa, has been accepted and he was released on bail. Being outcome of the same occurrence, the appeal as well as revision petition are disposed of through this single judgment.
2. In revision petition No.6 of 2016, titled Ehsan Ullah and another v. Muhammad Mustafa and another, the following short order was passed on 21.10.2016 "For the reasons to be recorded later on, while accepting the titled revision petition the impugned order of the Shariat Court dated 09.03.2016 is set aside and the bail granted to the accused respondent stands recalled. The accused shall be taken into custody and sent to jail."
The reasons are being advanced along with connected case hereinafter.
3. The facts in brief are that on the complaint of Zeeshan Ehsan (deceased), a case for commission of offences under sections 324,337 and 34, APC, was registered under FIR No.53/13, at Police Station Thothal. It is alleged in the FIR that the complainant, Zeeshan Ehsan was a student of 3rd year, on the fateful day, he along with Umar and Naib was coming from Islamgarh to Mirpur while boarding a Bus No. AJK-6738. It is further alleged that Mustafa alias Rasib, was cleaner of the Bus which was driven by Muhammad Farooq. Due to dispute on fare harsh words were exchanged between the students and the cleaner of the Bus. Consequently, at about 11:30, a.m., when the Bus reached near to new toll Post, the cleaner took out the screwdriver from the tool box and hit the same on the head of the complainant who got grievously injured. The complainant further averred that the accused, Muhammad Farooq, in the meantime with the intention to cause grievous hurt stopped the Bus and started beating him with fists and kicks. The accused persons threw the complainant out of the Bus which caused him severe injuries. The occurrence stated to be witnessed by the companions of the complainant and other passengers of the Bus. Later on, the complainant succumbed to the injuries. The police added Section 302 APC. After completion of the investigation, the challan was presented in the District Court of Criminal Jurisdiction, Mirpur. In the early round the accused-appellant, Muhammad Farooq, moved application for grant of bail which was dismissed by the trial Court. On revision petition the learned Shariat Court while accepting the revision released him on bail vide order dated 29.08.2013. The father of the deceased filed appeal before this Court which was accepted vide judgment dated 27.01.2015, and the accused-appellant was sent behind bars. Thereafter, both the accused persons moved separate bail applications before the trial Court. The trial Court dismissed both the applications. The accused filed revision petitions against the orders of the trial Court. The learned Shariat Court vide judgment dated 12.08.2015, dismissed the revision petition filed by the accused-Muhammad Farooq and vide judgment dated 09.03.2016 while accepting the revision petition filed by the accused, Muhammad Mustafa released him on bail. Now, the parents of the deceased filed revision petition for cancellation of bail granted to the accused Muhammad Mustafa, by the Shariat Court and the accused, Muhammad Farooq through appeal applied for bail while challenging the judgment of the Shariat Court dated 12.08.2015.
4. Mr. Muhammad Zubair Raja Advocate, the learned counsel for the accused Muhammad Farooq, argued that the judgment of the Shariat Court dated 12.08.2015, whereby the bail application filed by the accused, Muhammad Farooq was dismissed is based on non-appreciation of the law on the subject. He submitted that although in the early round, the bail of the accused was recalled by this Court, however, thereafter, the case of the accused was ripe to get the bail on statutory ground as the period of two years has been elapsed and the trial of the case has not been concluded as yet. He added that bail under the third proviso to section 497 (1), Cr P.C. is a statutory right which cannot be denied, but the learned Shariat Court failed to appreciate the law on the subject in its true perspective.
5. Raja Inamullah, Advocate the learned counsel for the accused respondent, Muhammad Mustafa, argued that it is settled principle of law that once bail has been granted by the Court of competent jurisdiction the same cannot be cancelled except the extraordinary circumstances so warrant. In the instant case no such extraordinary circumstances are available therefore, the revision petition filed by the complainant party for cancellation of bail is liable to be dismissed. He submitted that the judgment of the Shariat Court dated 09.03.2016, through which the accused, Muhammad Mustafa, was released on bail is perfect and legal which has been passed after due application of judicial mind. He submitted that no deeper appreciation has been made by the Shariat Court while ease the accused Muhammad Mustafa, on bail.
6. On the other hand, Mr. Khalid Rashid Chaudhary, Advocate, the learned counsel for the complainant strongly opposed the arguments advanced by the learned counsel for the accused.
He argued that the learned Shariat Court has not exercised its discretion in a judicious manner while granting the concession of bail to the accused, Muhammad Mustafa. He contended that the accused, Muhammad Mustafa, is duly nominated in the FIR with specific role. The learned Shariat Court failed to adhere to the fact that both the accused persons played an active role in the occurrence, in the result of which an innocent person was murdered. He argued that the case of the accused falls under the prohibitory clause of section 497, Cr. P.C., in which the refusal of bail is rule and grant of bail is an exception. The learned Shariat Court has not rightly appreciated the material available on record as the tentative assessment of the same does not warrant to release the accused, Muhammad Mustafa, on bail. In this way, the grave injustice has been done to the complainant party. He added that the learned Shariat Court has also not taken into consideration that the bail cannot be granted on statutory ground to the persons who acted in a desperate manner, He added that the learned Shariat Court has also not considered the observations made by this Court in the judgment dated 27.01.2015 while recalling the bail granted to one of the accused, Muhammad Farooq. This Court categorically observed in the said judgment that the accused for a petty amount of fare deprived a young person of his life and the act of the accused created panic, fear and insecurity in the general public. He fully supported the order of the Shariat Court dated 12.08.2015, through which the bail application of the accused, Muhammad Farooq was refused.
7. Mr. Akhlaq Hussain Kiani the learned Addl. Advocate-Genera also adopted the arguments advanced by the learned counsel for the complainant. While making addition he submitted that bail granting order of the Shariat Court is against the dictum laid down by this Court which is not sustainable in the eye of law. He contended that the case of the accused is fully covered under the definition of hardened, desperate and dangerous criminal, therefore, they are not entitled to get the bail on the statutory ground.
8. We have heard the arguments of the learned counsel for the parties at some length and perused the record made available. According to the prosecution story, the accused, Muhammad Farooq, the driver of the Bus and the accused, Muhammad Mustafa, the cleaner of the Bus, only on a dispute of fare, critically injured, Zeeshan Ehsan, who was student of 3rd year and later on he, succumbed to the injuries. The record reveals that in the earlier round the bail granted to the accused, Muhammad Farooq, by the Shariat Court was recalled by this Court vide judgment dated 27.01.2015. In the said judgment, this Court after discussing the facts of the case has observed as under:- "The story of the instant case is very sorrowful. A young person, the student of graduation in his full bloom of youth has not only been deprived of his right of life for a pity amount of fare but such act of accused has created panic, fear and insecurity to the general public especially to the young students who travel by public service vehicles
9. The family of the victim for a very negligible monitory benefit has been thrown into endless dark valley of grief and agony due to burial of a young member in his full bloom of youth. In every society, right of life is most prime fundamental right. All the institutions and systems are set-up only for the purpose of securing this very basic fundamental right of life. Irrespective of the fact whether the injury attributed to the accused resulted into death or not, in view of the peculiar facts of this case, the conduct of the accused-respondent is of much consideration. The most important aspect of the matter is that if the accused would have any sense of humanity, he should have rushed for facilitating the injured young person to provide him medical aid to save his life, but regrettably, according to the prosecution story, he played a brutal role, join the hands with the other co-accused by causing fists and kicks blows to the critically injured person. His brutality not ends here rather the critically injured young student was thrown out from the vehicle by the accused-respondent. Keeping in view the whole scenario and circumstances of the case, the conduct of the accused respondent is very much unbecoming and inhuman, depriving him of any concession."
After going through the above reproduced paragraph, prima facie this Court has observed that the persons who involved in the matter in hand are acted in a desperate manner which creates panic, fear and insecurity in the general public. It may be observed here that although under the statutory provisions, a person can be released on bail if the trial has not concluded even after lapse of 2 years in a murder case, however, there is also exception in this regard that the concession is not available to the accused, who is a hardened desperate and dangerous criminal. It may also be observed here that the manner of commission of offence is very much necessary to be considered while declaring an accused as hardened, desperate and dangerous criminal. the case in hand, prima facie the manner of commission of offence was very unbecoming and inhuman which created panic, fear and insecurity to the general public as has been held by this Court in the previous judgment. The accused, Muhammad Mustafa is the main accused, who initially inflicted a blow by a screwdriver on the head of the deceased. Thereafter, he constantly beaten the deceased along with co-accused, Muhammad Farooq and when the deceased was seriously injured they thrown him from the vehicle. The role attributed to the accused Muhammad Mustafa is very much vital and his case cannot be distinguished from the case of co-accused, Muhammad Farooq.
Prima facie both the accused acted in a brutal manner and their case is fully covered under the 4th proviso to sub-section 1 of section 497, Cr.P.C. Thus, the accused are not entitled to get the bail on the statutory ground. Reliance may be placed on a case reported as Shaukat Aziz and another v. Ansar. Ali and another [2014 SCR 934, wherein this Court has held that: "10. While dealing with the bail matters, the Courts are supposed to make a tentative assessment of evidence and the other material brought on the record. The Courts are not supposed to go into the deeper appreciation of evidence and the other record made available. The Courts have to confine themselves within the parameters determined by law. While dealing with the bail matters the Court have only to look into the material brought on the record in the form of FIR, the statements recorded under section 161, Cr. P.C., and of course the defense version if any. The word shall used in the proviso to sub-section 1 of section 497 Cr. P.C. reproduced in the preceding para of the judgment makes it obligatory for the Courts to grant the bail to an accused where the trial is not concluded in the specified period and the accused is not responsible for such delay. However, an embargo has been placed that the accused previously convicted for an offence of death or imprisonment for life, hardened, desperate and dangerous criminal shall not be released despite the fact that the trial is not concluded within the statutory period."
(underlining is ours)
As we have reached the conclusion that the accused are not entitled to get the bail on statutory grounds, therefore, while accepting the revision petition, the order of the Shariat Court dated 09.03.2016, is set aside and the bail granted to the accused, Muhammad Mustafa is hereby recalled. The judgment of the Shariat Court dated 12.08.2015 through which the bail was refused to the accused, Muhammad Farooq stands upheld.