' RAJA SAEED AKRAM KHAN, J.---This appeal has been directed against the order dated 31.01.2014, passed by the learned Shariat Court, whereby the revision petition filed by the accused- respondents has been accepted and they have been released on bail.
2. The facts in brief are that an FIR under sections 302, 147, 149, A.P.C., was registered against the accused-respondents and others on the complaint of the complainant, Muhammad Younas, on 01.07.2012. The story as emerged from the FIR is that on 01.07.2012 at 7:00 a.m., the complainant went to the house of his uncle, Ahmed Ali for constructing a wall. He was taking tea when Muhammad Zameer Hussain Shah son of Shabir Hussain Shah came there and asked his uncle Ahmed Ali that his father is calling him up. On this, his uncle left for along with Zameer Hussain Shah. When they reached near to stream, the other accused who were standing there while way laying attacked his uncle with the intention to kill him. On hearing the hue and cry, the complainant reached on the spot and saw the accused, Shabir Hussain Shah and Zameer Hussain Shah while catching hold to his uncle. The accused Abid Hussain Shah inflicted stone blow on the head of the uncle due to which he fell down. Thereafter, accused, Zameer Hussain Shah started inflicting stone blows on the belly of his uncle. The other accused, Mst. Nahida and Mst. Kalsoom were also pelting stones continuously. The injured Ahmed Ali succumbed to the injury in the way to hospital. After registration of the case, the accused-respondents were arrested by the police. The accused- respondents after being arrested moved an application for grant of bail in the District Court of Criminal Jurisdiction, Muzaffarabad which was dismissed vide order dated 05.09.2013. A revision petition was filed by them before the learned Shariat Court. The learned Shariat Court vide impugned order dated 31.01.2014, accepted the revision petition and released the accused- respondents on bail. Hence, this appeal.
3. Mr. Tahir Aziz Khan, Advocate, the learned counsel for the appellant argued that the learned Shariat Court has not exercised its discretion in a judicial manner while granting the concession of bail to the accused-respondents. He contended that the accused-respondents were duly nominated in the FIR which was promptly lodged. He added that the role of the accused- respondents is that they caught hold the deceased at the time of occurrence and the remaining accused inflicted the stone blow on his head which resulted into his death. He submitted that the learned Shariat Court failed to adhere to the fact that both the accused-respondents played an active role in the occurrence, in the result of which an innocent person was murdered. He added that the allegation levelled against the accused-respondent, Zameer Hussain Shah is that after receiving the head injury when the deceased fell down; he inflicted the stone blow at his belly. He strongly argued that while dealing with the bail matters the deeper appreciation of the evidence cannot be made. The trial is already in progress and the statements of a number of witnesses have been recorded and during trial the Superior Courts always declined to release the accused on bail but this principle has been violated by the learned Shariat Court while passing the impugned order.
He contended that the version of the prosecution is fully corroborated by the statements recorded under section 161, Cr.P.C., coupled with the medical evidence. He submitted that the accused- respondents acted in furtherance of their common intention; therefore, they are also vicariously liable and can be punished for the same offence to which the main accused is charged with. He added that the learned Shariat Court also failed to take into account that from the evidence available on record, it can safely be believed that the accused-respondents are involved in the offence punishable with death or imprisonment for life or imprisonment for more than 10 years and in such like cases the bail cannot be granted. He argued that the case of the accused-respondents 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. He strongly argued that the learned Shariat Court has wrongly applied the rule of consistency while releasing the accused-respondents on bail as their case stands on quite different footings as compared to the accused who were granted the bail as the accused- respondents have fully facilitated the main accused in the commission of offence. He added that according to the medical report the cause of death of the deceased is stated to be the head injury.
The learned Shariat Court has not rightly appreciated the material available on record as the tentative assessm ent of material does not warrant to release the accused-respondents on bail. In this way the grave injustice has been done to the complainant party. He further added that another ground on the basis of which the bail has been granted by the Shariat Court is of further inquiry, whereas, the fact of further inquiry can only be attracted if the Court comes to the definite conclusion that there is no ground to believe that the accused-respondents have committed a non-bailable offence. In this way, the findings recorded by the learned Shariat Court are arbitrary and fanciful and the same are not sustainable in the eye of law. He has relied upon the cases reported as Shoukat v. The State [2010 MLD 1137], Hakim Ali v. The State [1991 SCMR 412], Nazir Shehzad and another v. The State [2009 SCMR 1440], Muhammad Ashiq v. State 1998 PCr.LJ 996, Hussain Ahmed v. The State [2004 PCr.LJ 669], Soofan alias Tahir v. The State [2009 PCr.LJ 540], Muhammad Naeem v. The State [2005 YLR 3182], Irfan Khan v. The State [2009 MLD 120], Abdul Naeem v. The State [2005 MLD 428] and Abdul Hameed v. The State [PLD 1997 Lahore 164].
4. On the other hand, Raja Muhammad Atif Khan, Advocate, the learned counsel for the accused- respondent strongly opposed the arguments advanced by the learned counsel for the appellant while submitting that once bail has been granted by the Court of competent jurisdiction the same cannot be cancelled except the extra-ordinary circumstances are available. He submitted that the impugned judgment 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 exercising its discretion to release the accused-respondents on bail. He further submitted that no injury at the body of the deceased has been attributed to the accused-respondents. The only allegation levelled against them is that they caught hold the deceased at the time of occurrence.
He stated that on one hand the prosecution alleged that both the accused-respondents caught hold the deceased at the time of occurrence but at the same time it is also alleged that one of the accused-respondent, has inflicted the stone blow at the belly of the deceased, which does not appeal to a prudent mind. In this way, the learned Shariat Court has rightly held that this is a case of further inquiry. In continuation of his arguments, he submitted that the principle of consistency has rightly been applied by the Shariat Court as the role of the accused-respondents is at par with the other accused who have already been released on bail. He submitted that the challan of the case has already been presented in the Court and before grant of bail, the accused-respondents remained behind the bars for more than 1 year, 8 months. He added that almost the statements of eye-witness have been recorded and at this stage this Court is always reluctant to cancel the bail as no overwhelming circumstance are available for interference in the discretion exercised by the Court of competent jurisdiction. Moreover, the deeper appreciation of the evidence cannot be made at this stage which may prejudice the case of either party. He added that the question of vicarious liability can only be determined after recording the evidence at the time of conclusion of the trial which stage has not come as yet, therefore, the argument of the learned counsel for the appellant in this regarded is ill-founded. He lastly submitted that this was not a premeditated occurrence as the same occurred in a spur of moment. He has relied upon the cases reported as Ishtiaq v. The. State and another [2011 SCR 78], Inayat Khan v. Zahid and 2 others [2011 YLR 761], Muzzamil Hussain v. Allah Nawaz and another [2011 PCr.LJ 1352], Muhammad Bashir v. The State and 6 others [2011 PCr.LJ 1510] and Director FBR, Intelligence and Investigation Directorate, Lahore v.
Akhtar Zaman Khan and others [2011 SCMR 1951].
5. Mr. M. R. Khan the learned Additional Advocate-General also adopted the arguments advanced by the learned counsel for the complainant-appellant.
6. We have heard the arguments of the learned counsel for the parties at some length and perused the record made available and the case law referred to by both the learned counsel. The case of the prosecution is that on the fateful day, at the time of occurrence the accused- respondents caught hold of the deceased and one Abid Hussain Shah inflicted the stone blow at the head of the deceased. After receiving the injury, the deceased fell on the ground in a serious condition and at that time one of the accused-respondent, Zameer Hussain Shah also inflicted the stone blow at his belly. The accused-respondents moved application seeking the bail which was refused by the trial Court. The order of the trial Court was assailed before the Shariat Court by way of revision petition which was accepted by the Shariat Court and the accused were released on bail. It is settled principle of law that while dealing with the bail matters, the Court has to confine itself to examine the material, i,e,, the statements A recorded under section 161, Cr.P.C., allegation levelled in the FIR and the medical evidence. The deeper appreciation of the evidence is not warranted under law. We have examined the statements recorded under section 161, Cr.P.C. All the prosecution witnesses (PWs) while recording their statements under section 161, Cr.P.C., remained consistent on the point that at the time of occurrence the accused-respondents caught hold the deceased. After going through the medical evidence, it reveals that the cause of death of the deceased was head injury. The trial is already in progress and during the course of trial the statements of some witnesses have also been recorded. Prima facie the perusal of the said statement shows that the PWs made the statements in line with the allegations in FIR and the statements recorded under section 161, Cr.P.C. After making tentative assessment of evidence available on record, it is unambiguous that all the PWs fully supported the version of the prosecution that at the time of occurrence the accused-respondents were catching hold the deceased and third accused namely, Abid Hussain Shah inflicted a fatal stone blow on his head which resulted into his death. From the tentative assessment, it also appears that the role attributed to the accused-respondents can be termed as an active role in the commission of murder of the deceased and it clearly amounts to facilitating the commission of the offence of murder. In this scenerio, it can safely be gathered that there are reasonable grounds for believing that the accused-respondents have been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. In such like cases the provisions of section 497(1), Cr.P.C., are attracted which imposed an embargo to release the accused on bail, therefore, the benefit of section 497 (2), Cr.P.C, cannot be given when there is no ambiguity in the role attributed to the accused. It appears that subsection (2) of section 497, Cr.P.C., is the most misinterpreted and most misapplied provision in the entire Criminal Procedure Code. It provides that, if it appears to an officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed non- bailable offence, but, there are sufficient grounds for further inquiry into his guilt, the accused, shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance, whereas, the position in the instant case is quite different and no such eventuality is available which may make the case one of further inquiry and bring the same under section 497(2), Cr.P.C. Moreover, this provision is not meant to be applied, when there are reasonable grounds for believing, that, an accused person has committed a non-bailable offence. The way in which subsection (2) of section 497, Cr.P.C., is being applied, it makes the provisions contained in subsection (1) of section 497, Cr.P.C., redundant, nugatory and inoperative. It is specifically provided in subsection (1) of section 497, Cr.P.C., that when any person accused of any non-bailable offence, is arrested, or detained without warrant by an Officer Incharge of police station or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. It may be observed here that no Court is empowered to release an accused on bail on the ground of further inquiry without first coming to the conclusion that there are, no reasonable grounds for believing that the accused has not committed non-bailable offence. Reliance can be placed on a case reported as Asjad Mahmood and another v. The State and another [2014 SCR 173], wherein this Court observed as under:--
10. Section 497, Cr.P.C. Postulates that when any person, accused of non-bailable offence, is arrested or detained without warrants, the Court may release him on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life or ten years."
' In another case reported as Wazir v. Ghulam Mustafa and 2 others [2003 YLR 1884], it has been observed that:- "For the forgoing reasons it is held that the learned Sessions Judge, Sukkur mis-directed in granting bail to the respondents 1 and 2 by ignoring the principle of vicarious liability enshrined in P.P.C: and by unnecessarily extending the concession of further inquiry to the respondents Nos.1 and 2 without adhering to the condition precedent of holding that there are no reasonable grounds for believing that the respondents Nos.1 and 2 have committed a non-bailable offence. A plain reading of subsection (2) of section 497, Cr.P.C. Shows that no Court is empowered to release an accused on bail on the ground of further inquiry without first coming to the conclusion that there are no reasonable grounds for believing that the accused has not committed non-bailable offence."
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 circumstance, but in the case in hand, the circumstance 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. These are the extraordinary circumstances which have been overlooked by the learned Shariat Court while exercising its discretion. Mere possibility of further inquiry which always exists almost in every criminal case, cannot be made a ground for treating the matter as one falling under section 497(2), Cr.P.C.
Reliance can be placed on a case reported as Ameer Qabal v. The State and another 2014 YLR 1771 wherein this Court observed as under:-- "It is now well-settled law that at the bail stage only a bird eye-view of evidence is taken into consideration. Deeper appreciation of evidence is not permissible. Of course if it appears to the Court at any stage of trial that there are no reasonable grounds for believing that the accused had committed a non-bailable offence and there are sufficient grounds for further inquiry into his guilt, the accused may be released on bail. In every criminal case some scope for further inquiry into the guilt of accused exists, but on that consideration alone it cannot be claimed by the accused a matter of right that he is entitled to bail. For bringing the case in the ambit of further inquiry, there must be some evidence which on the tentative assessment, may create doubt with respect to involvement of accused in the crime. What is important is that the Court while granting bails has to satisfy itself whether reasonable grounds exist or not against the accused for believing that he is connected with the offence alleged against him. Each case has its own foundation of facts, therefore, it is not possible to put each and every case in the cradle of further inquiry to provide, relief to accused by releasing on bail."
' Similarly, in another case reported as Mst. Parveen Akhtar v. The State and others [2002 SCMR 1886], it has been observed that..
"....It may be noted that as per the statement of P.W-Amir who received injuries during the incident, it was Shehzad who had fired upon Asghar Hayat Constable. Besides, in the FIR, Shehzad was named as an accused and responsible for commission of the offence. Undoubtedly, in such like cases, it is said that accused has made out a case of further inquiry. In view of the law laid down by this Court in the case of Asmatullah Khan v. Bazi Khan and another (PLD 1988 SC 621) merely for such reason accused would not be entitled for grant of bail because mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one under section 497(2), Cr.P.C. After having gone through the statement of P.WE. Amir and taking into consideration the material on record, we are of the opinion that respondent No,2 was not entitled for grant of bail on the ground of further inquiry because there is overwhelming evidence against him to prima facie connect him with the commission of crime. Therefore, learned High Court while granting bail to respondent No,2 had not exercised its jurisdiction properly keeping in view the principle laid down by this Court in the case of Asmatullah Khan (ibid)."
8. While adverting to the argument of the learned counsel for the accused-respondents that trial is already in progress and statements of a number of witnesses have been recorded, therefore, at this stage this Court is always reluctant to intervene the discretion exercised by the Courts below.
We are afraid that no such embargo can be imposed to cancel the bail, if the Court comes to the conclusion that the Courts below have exercised the discretion in an arbitrary manner and in derogation of the norms of justice, then the commencement of trial cannot be allowed to be a hurdle in cancellation of bail. We are fully convinced that the case of accused-respondents does not come within the purview of subsection (2) of section 497, Cr.P.C., as there are reasonable grounds to believe that the accused-respondents have committed a non-bailable offence punishable with death or imprisonment for life or imprisonment for 10 years. In such like cases the rule is refusal and not grants of bail, however, it varies case to case as each criminal case has its own peculiar circumstances.
9. The case law referred to and relied upon by the learned counsel for the accused-respondents having no relevance, distinguishable facts and merits, therefore, need not be discussed.
' In view of above discussion, the by the learned Shariat Court to the accused-respondents is hereby recalled. The accused-respondents are directed to be taken into custody and remanded to Jail for facing trial. .