' This is a Revision Petition directed against the order of the learned .District Court of Criminal Jurisdiction, Kotli, dated 23-10-1984 whereby bail was refused to the petitioners Muhammad Khurshid, Muhammad lqbal, Muhammad Farooq and Amesh Gul who are involved in a murder case under section 5 of the Islamic Penal Laws Act of 1974 read with sections 302/34 of the P.C.
2. This revision petition arises out of the following facts:
(i) Zakar Hussain son of Muhammad Rafique resident of refugee Colony Fagosh, Tehsil Kotli lodged an F.I.R. In the Police Station, Kotli on 6-8-1984 at 10.30 a.m. That on 6-8-1984 at about 8.30 a.m. He saw Muhammad Farooq, Muhammad lqbal, Amesh Gul and Muhammad Khurshid of Fagosh who killed Shaukat Ali son of Muhammad Yaqoob, a Refugee, Resident of Thapla (Fagosh Colony).
Hamida Begum and -Muhammad Rafique were crying: "they are killing; they are killing". When he reached on the spot, which is a 'Katcha' road passing from survey No,2238 (according to the site plan), he saw the accused persons. He wanted to release Shaukat Ali from the clutches of the accused, when Muhammad Farooq (the main accused) stabbed Shaukat Ali from behind while the other three accused persons (petitioners before me) had caught hold of the deceased (Shaukat Ali). On receiving this fatal wound, the deceased fell down and became unconscious while the four accused persons fled away. When the informant raised an alarm some people from Fagosh Colony and Thapla Colony came on the spot. Shaukat Ali (deceased) was laid on a cot and taken to Kotli for medical treatment but he succumbed to the fatal injury near Tahli Colony. This occurrence was witnessed by the informant Zakar Hussain, Mst. Hameeda Begum, Muhammad Akram son of Muhammad Khan resident of Fagosh Colony and Muhammad Majeed son of Bagh Ali; resident of Thapla Colony with their own eyes. The motive for murder, according to the informant, was enmity due to a previous election.
3. The police started investigation after registering a case under section 5 of the Islamic Penal Laws Act read with section 302/34, P.C. The distance from Kotli Police Station to Fagosh is about 8 miles and Fagosh is situated to the south from the police station Kotli.
4. The Police, after completion of the investigation, put up a challan against Farooq son of Muhammad Akram, Muhammad lqbal son of Muhammad Yusuf, Amesh Gul (or Hamesh Gul) son of Anar Gul resident of Fagosh and Khurshid son of Habib resident of Maneel under section 5 of the Islamic Penal Laws Act read with section 302/34, P.C. On 20-9-1984. According to the list of witnesses, it appears that there are only 14 prosecution witnesses out of whom four prosecution witnesses are stated to be eye-witnesses.
5. This case is in its initial stage and has been fixed for recording the statements of the accused persons under section 242, Cr.P.C.
6. The accused persons moved an application for their bail before the learned District Court of Criminal Jurisdiction, Kotli on 15-9-1984. After hearing the arguments in the bail matter, the learned Members of the District Court of Criminal Jurisdiction, Kotli disallowed bail to the four accused persons. Thus, the trial Court has exercised its discretion in refusing bail to the accused persons and has given reasons in support of the said order.
7. Dissatisfied with the order of the learned District Court of Criminal Jurisdiction, Kotli, dated 23-10- 1984, all the four accused persons have come up in revision petition before the Shariat Court.
8. Raja Muhammad Aslam Khan, the learned counsel for the petitioners (accused persons) has not pressed for the bail of the main accused, Muhammad Farooq and he has vehemently argued to release the three accused persons Muhammad lqbal, Muhammad Khurshid and Amesh Gul on bail. He has urged the following points:-
(a) That Zakar Hussain, the informant, has lodged an F.I.R. But the version given in the F.I.R. Does not tally with his statement under section 161, Cr.P.C. For instance, in the F.I.R., there is no explanation as to how these three accused persons had caught hold of the deceased but in his statement under section 161, Cr.P.C., an explanation has been given by him. The explanation is that Muhammad Khurshid had caught hold of the deceased by neck from the front side. Muhammad lqbal had caught hold of the deceased by left arm from the left side, and Amesh Gul had caught hold of the deceased by his right arm from the right side. While these three accused persons had caught hold of the deceased, Muhammad Farooq stabbed the deceased from behind;
(b) That it is unreasonable and improbable that one man was fixed up by three accused persons and the fourth accused person stabbed him from behind;
(c) That no reasonable grounds exist in this case to connect these three accused persons with the offence of murder;
(d) That the manner and method of catching hold of the deceased by the accused persons is highly unbelievable in the light of the normal human conduct;
(e) That according to the prosecution version, Muhammad Khurshid had caught hold of the accused from his neck from the front side but there is no sign or bruise etc. On the neck of the deceased. Moreover, Muhammad Khurshid accused is a short statured man and as such hecould not catch hold of Shaukat Ali (deceased) who was a six-footer stout young man of 26 years;
(f) That naturally when there are four persons on one side and a stout young man on the other side, there should be some injuries on the persons of the accused persons but there are no such injuries on the persons of the accused which fact negatives the prosecution story;
(g) That the case of vicarious liability needs "further inquiry" and as such these three accused persons, to whom no fatal injury or even a simple injury has been attributed in the F.I.R., are entitled to bail according to law and various authorities of the Superior Courts of Pakistan and Azad Jammu and Kashmir;
(h) That the prosecution has listed four eye-witnesses in this case but none of them says whether the deceased was coming towards Kotli or going towards his home and none is able to show the exact position of the accused persons where they waylaid the deceased. If it is true that the accused persons laid an ambush for the murder of Shaukat Ali (deceased), the exact place of ambush should have been mentioned or shown in the site plan and in the statements of the prosecution witnesses recorded under section 161, Cr.P.C.; and
(i) That these three accused persons (petitioners) should be enlarged on bail on the ground that they did not inflict any fatal injury or even any simple injury to the deceased Shaukat Ali. The learned counsel for the petitioners has prayed that the tentative assessment of the evidence may be made at this stage and bail allowed to the accused persons (petitioners) because the learned District Court of Criminal Jurisdiction has failed to exercise its discretion according to the well- known principles of the law of bail.
9. Raja Muhammad Aslam Khan, the learned counsel for the petitioners (accused persons), has cited the following authorities in support of his points listed above.
' 1976 P Cr. L J 758, 1095; ' 1978 SCMR 7, 357; ' 1979 P Cr. L J 45; ' 1981 P Cr. L J 685; ' 1981 P Cr. L J 485; ' 1981 P Cr. L J 1102; ' PLD 1983 SC (AJ&K) 8; ' 1983 PCrLJ 2019; ' 1984 P Cr. L J 1647; ' 1983 P Cr. L J 1426; ' 1983 P Cr. L J 1027; ' 1983 P Cr. L J 745.
' Unreported case of Muhammad Arif v. The State AJK Shariat Court.
10. As against these points, the learned Additional Advocate-General, Mr. Muhammad Nisar Mirza, has stressed the following points:-
(a) That no detailed scrutiny of the prosecution evidence can be made at this stage and only the F .1. R . The statements under section 161, Cr.P.C., the Medical Report, the recoveries and the site plan can be gone into at this bail stage. Of course, the Court can make a tentative assessment of the evidence at this stage for the purpose of deciding the bail matter but in this case we have got a prima facie strong case against the accused persons. The prosecution has got four reliable and truthful eyewitnesses in this case of murder. Therefore, the prosecution case is, prima facie, made out against all the four accused persons;
(b) That there is no difference between the version given in the F.I.R. And the account given by the four eye-witnesses in their statement under section 161, Cr.P.C.;
(c) That although the prosecution does not need any corroborating material in the presence of reliable eye-witnesses but if some corroboration is needed at all, that is afforded by motive, the post-mortem report, recoveries, the Chemical Examiner's Report and some other material in this case;
(d) That the occurrence of murder took place in the broad daylight on 6-8-1984 at 8.30 a.m. In a Katcha road and there is no doubt about the identification of the accused persons who are known to the eye-witnesses by name and face because all of them belong to the village of Barali, Fagosh, Thapla and Maneel are the various Mohras or parts of Barali village;
(e) That the manner of catching hold of the deceased was absolutely natural and probable because the deceased Shaukat Ali was a stout young man according to the Inquest Report prepared by the police on 6-8-1984. In the Inquest Report the following words have been used:- {{URDU TEXT}} ' Moreover, Dr. Mushtaq Jaral, who conducted the post-mortem (autopsy) on the dead body of Shaukat Ali, has also mentioned that the deceased was a "young stout well-nourished man". The deceased was a six feet tall man;
(f) That one man is sufficient to kill a person with revolver or pistol or a gun or a rifle but when a well-built and stout young man of 26 years. Like Shaukat Ali (deceased) is to be killed by knife it requires four men to murder him because, as the prosecution story goes, the deceased was in fact encircled by all the four accused persons. Muhammad Khurshid caught hold of the deceased by neck while Muhammad lqbal and Gul caught hold the deceased by arms from left and right and thus, Mr. Farooq was able to stab him from behind. It is in prosecution evidence that when there was a fight during the Election held somewhere in 1983, Shaukat All deceased had snatched a revolver or a pistol from the father of Muhammad Farooq accused wanted to take a revenge of that incident;
(g) That the accused persons are Rajputs while Amesh Gul is a Pathan and all of them were smarting for vengeance. They hatched a conspiracy to kill Shaukat All deceased motivated by vendetta;
(h) That the three petitioners, whose bail is sought for, participated fully in the offence of murder of Shaukat All (deceased) and, therefore, under section 34 they shared the common intention to murder the unfortunate victim. Therefore, it is not the case of mere proverbial Lalkara or mer standing nearby the deceased. So, all the four accused persons are liable to be punished for the offence of murder;
(i) That there are reasonable grounds to believe that all the four accused persons have taken full part in the offence, and, therefore, they are not entitled to bail because the offence in which they are involved is punishable with death or Qisas or life imprisonment. The bail is refused as a general rule to such persons;
(j) That in bail matters, primarily the discretion to grant or refuse bail vests with the trial Court. In this non-bailable case, the trial Court has exercised its discretion with due care and caution considering the facts and the circumstances of this peculiar case. So, the reasonable grounds exist in this case to connect the accused persons with the offence of murder in this case. The trial Court has applied its mind properly to the facts of this case and has refused bail to the petitioners according to the well-known principles of the law of bail. Therefore, the Shariat Court cannot interfere with the discretion exercised by the trial Court, because no 'case of arbitrary or capricious exercise of discretion has been made out in this case; and
(k) That the prosecution story is natural. The informant and the four eye-witnesses have not exaggerated or misstated the facts. They could implicate even the father of the accused Farooq and make the number of the accused persons five, but being truthful, they have not implicated any innocent person.
11. The learned Additional Advocate-General has cited the following authorities before me:- '
' PLD 1967 SC 340; 1977 P Cr. L J 129; ' 1978 P Cr. L J 8; 1978 P Cr. 1 J 863; 1979 SC ' M R 65; 1981 SCMR 820; 1983 P Cr. L J 318 ; 1983 P Cr. L J 1965; 1984 P Cr. L J 781.
' Unreported case. Cr. Miscellaneous No, 219 of 1983, decided on 4-2-1984 by the A J & K Shariat Court titled 'Noor Muhammad v. The State".
12. I have duly considered the points agitated and argued at the Bar and have also carefully perused the relevant record.
13. Most of the points raised by the learned counsel for the petitioners touch the merits of the case and, therefore, I do not feel advised to say anything about the merits of the case. It is correct that the Court A can make a tentative assessment of evidence at the stage of bail but I would like to refrain from making even a tentative assessment of the evidence so that my view may not prejudice the trial Court.
14. At this stage, I can only look into the F.I.R., the statements of four eye-witnesses recorded under section 161, Cr.P.C. Medical report, certain recoveries and the judgment of the learned District Court of Criminal Jurisdiction, Kotli whereby the bail has been refused to the petitioners.
15. In this respect, I am fortified by the views of our own Supreme Court expressed in para. 6 of the case of Muhammad Bashir v. The State PLD 1983 (SC) A J K 8, which reads:- "Before dealing with the points listed above, it would be proper to state that normally the Supreme Court does not interfere with the discretion exercised by the Courts below unless the discretion is shown to be capricious or against the interest of justice or established principles of administration of criminal justice.
"It is also to be noted that in deciding bail matters ordinarily the merits of the case are not gone into as held in PLD 1961 Lah. 317 and PLD 1966 SC 340. The rule laid down seems to be quite sound that superior Courts rarely enter into the merits of the case for purposes of granting or refusing the bail, because the appreciation of the evidence is the exclusive function of the trial Court. In view of this we refrain from going into the merits of the case which are listed above".
20. In the case of Chiragh Din and others v. The State PLD 1967 SC 340, it was observed:- "The case in PLD 1966 SC 658 is not to be read as laying down that a Lalkara is never to be regarded as a sufficient overt act, if proved, to establish abetment. That question must be decided, by the trial Court on an appreciation of all the facts, including the degree of interest in the crime possessed by the person who shouted the Lalkara, and the part he played in the background of the affair..
' There are circumstances in which mere presence at the scene of the crime is a sufficient overt act to support a conviction, by the application of section 114, P.P.C. Shouting of a Lalkara may, in such circumstances, have effect as a further overt act of abetment (342) A & B.
' The same authority lays down at p. 342 C that the appreciation of evidence and drawing of conclusions therefrom is exclusively the function of the trial Court and the same cannot be anticipated by a superior Court dealing with grant of bail pending trial."
21. In the case of Nazar Muhammad v. The State PLD 1978 SC 236, it was observed:- "We may observe that every case of criminal nature proceeds on its own facts and circumstances and a rule of universal application cannot be deduced from the decision of any particular case
(237) A ' The Courts on the basis of the material placed before them, such as F.I.R. Statements recorded under section 161, Cr.P.C. Are fully justified, even at bail stage, to go into the question whether a case of constructive liability is made out. This, however, is subject to the rule of caution laid down in Manzoor v. State PLD 1972 SC 81 (238)C.
22. It was reiterated in PLD 1983 SC (A J a K) 8 in para. 6 at p. 10-A that:- "It is also to be noted that in deciding bail matters ordinarily the merits of the case are not gone into as held in PLD 1961 Lah. 713 and PLD 1966 SC 390. The rule laid down seems to be quite sound that the superior Courts rarely enter into the merits of the case for purposes of granting or refusing the bail, because the appreciation of the evidence is the exclusive function of the trial Court. In view of this we refrain from going into the merits of the case."
23. The general principles governing grant or refusal of bail in criminal matters are given in many authorities but I would like to mention only:- ' Sultan Muhammad and another v. The State 1981 P Cr. L J 685 wherein Raja Muhammad Khurshid Khan, C.J. Of our Supreme Court observed in pares. 8 to 12 (pages 688 and 689):- "(8) To appreciate the points argued it will be useful to know the principles governing grant or refusal of bail in criminal matters. Bail, in non-bailable cases, is a matter within the discretion of the Court which is to be exercised with due care and caution on the facts and circumstances of each case. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to confine people in Jail merely on the allegation that they have committed offence punishable with death or transportation unless reasonable grounds appear to exist to disclose their complicity in such offences. No doubt, in offences punishable with death or transportation for life, bail is not justified if there exist reasonable grounds for believing that the person accused has committed such an offence. The onus, however, is on prosecution to disclose those reasonable grounds and the Courts have to examine the data available in the case to find out whether such reasonable grounds exist to connect the accused persons with the crime alleged against them. To ascertain as to whether reasonable grounds exist to connect the accused with the crime charged, the report of the police, the nature and credentials of the evidence which the prosecution proposes to look in the case and all other relevant circumstances surrounding the occurrence are to be looked into. The determination of the point as to whether bail can be allowed to a person accused of an offence punishable with death or transportation for life will depend on the facts of each case. No doubt, it is not for the Courts, at the stage of bail, to evaluate the evidence in minutest details but they are required to consider as to whether; upon material on record, such grounds for belief exist or not. It is also law that in such cases if the Sessions Judge or the High Court forms an opinion that such reasonable grounds do not appear the prayer for bail may be allowed.
(9) Whether reasonable grounds exist to connect the accused with the offence charged is a question which must be judicially decided i.e, there should be tangible evidence, offered by the prosecution on which, if not rebutted, the Court may come to the conclusion that the accused is guilty. The Court must apply its mind to the facts of the case and then decide whether or not the accused should be given freedom of bail pending the decision of the case. It is to be noted that where an application for ball is made in the initial stage (as the present case in) the prosecution is expected to satisfy the Court that there is a genuine prima facie case against the accused.
(10) Considerations in granting bail, of course, in offences punishable with death or transportation for life are very much different from the considerations on which bail can be granted in other offences. In the former case it is necessary to look into the evidence to see as to whether a prima facie case exists for believing that a person is guilty of those offences. When the High Court grants or withholds bail in a case involving sentence of death or imprisonment for life, the order should give some intelligible indication that the matter was objectively looked into otherwise this Court is sound to be upheld or not.
(11) Subsection (2) of section 407, Cr.P.C. Makes it obligatory for the Courts to allow bail to an accused person in all kinds of non-bailable offences including those punishable with death or transportation for life where no reasonable grounds exist for believing that the accused has committed an offence and a further inquiry is warranted. Of course such an order is interlocutory in nature pending inquiry.
(12) It is settled law that an accused is presumed to be innocent till the contrary is proved, therefore, the ultimate conviction and incarceration of a guilty person can redress the wrong caused by a mistake relief of interim bail granted to him but no satisfactory reparation can be afforded to an innocent man for his injustific incarceration at any stage of the case if he is acquitted in the long run."
24. In the case of Shabbir Hussain v. The State PLD .1982 SC(A J & K) 100 the normal rule in murder cases is mentioned by Mr. Justice Raja Muhammad Khurshid Khan, C.J. Of our Supreme Court in pares. 8 to 13, which read as follows:-
(8) "The law is settled that in a case of murder the normal rule is refusal to grant bail and on merits bail can be granted only either in cases where there are no reasonable grounds for believing that the accused was guilty of the charge or the case is such that it requires further enquiry or it is covered by any of the exceptions under section 497, Cr.P.C. Bail in such cases is a matter within the discretion of the trial Court, which is to be exercised with due care and caution in view of the facts and circumstances of each case. In this case bail was refused to the appellant when even the challan was not presented before the trial Court and the High Court had left the matter of bail open to be decided by the Court after recording some of the evidence. Much water since then has flown.
The statements of eye-witnesses have been recorded by the District Criminal Court. In view of the chariged circumstances the proper course of the appellant would be to approach the District Criminal Court again for bail on the ground that from the evidence recorded reasonable grounds are not established to connect the appellant with the offence charged.
(9) So far merits are concerned the Court would not evaluate the evidence which was neither in existence before the subordinate Court nor it was considered thereat. We, therefore, refrain to express ourselves about the merits of the evidence recorded by the trial Court after the refusal of the bail because any opinion expressed on the evidence though tentative may influence the mind of the trial Court. If we release the accused on bail it may create an impression that eye-witnesses hitherto recorded do not, prima facie, make out a case of murder. Likewise, if we refuse bail the trial Court may be persuaded to entertain the belief that the evidence hitherto recorded is short to establish a case of murder against the appellant.
(10) It has, therefore, been a matter of concern to the superior judiciary generally to avoid any expression of opinion on the merits of case lest it may influence the trial Judge. The trial Court would be placed in an extremely embarrassing position in such circumstances for although it may not legally be bound by the views of the superior Court yet it will feel hesitant to go against it and will, therefore, be hampered in discharging its own function. In this view of the matter we do not think that, in the stage in which the proceedings are in the present case, we would be justified in reviewing the evidence. The District Criminal Court must be allowed to discharge its own responsibilities uninfluenced by the views of the superior Courts.
(11) We are fortified in our view in Allah Bakhsh v. The State 1969 P Cr. L J 185; Jan Muhammad v. The State 1971 SCMR 315; Qamar Din v. The State 1975 P Cr. L J 133 and Muhammad Yaqub v. Iltafur Rehman and another PLD 1974 SC 83. The first mentioned case decides the controversy to the effect that at the stage of bail the Court should not be drawn into a controversy about the merits of the prosecution case to determine the guilt or innocence of the petitioner. In that case the learned counsel for the petitioner tried to comment on the evidence and circumstances of the prosecution case to prove the petitioner's innocence in order to earn a bail in a murder case but argument was repelled on the ground that comment on the evidence is not permissible in considering a bail matter. In second case the Supreme Court (Pakistan) in a bail matter refrained to express itself about the credibility of the prosecution witnesses and observed that such disputed question of fact cannot be decided in the bail application. In the third case during the pendency of the application before the High Court some of the evidence of the prosecution witnesses was recorded. In this view of the matter the learned Judge declined to express himself about the credibility of the witnesses on the ground that it is not proper to discuss the prosecution witnesses and express any opinion on the merits. In the last case Anwarul Haq, Judge (as he then was) declined to assess the weight of the evidence in bail matter as it was likely to pre-empt the duties and functions of the trial Court; and to prejudice the prosecution or the defence.
(12) Whether the witnesses should be believed or not will be, therefore, for the trial Court to decide.
Such disputed questions of fact cannot be decided in the bail application and the Court at this stage is only concerned to determine as to whether upon the material placed before the High Court there were reasonable grounds for believing that the appellant is guilty of having committed such a non-bailable offence; punishable with death or transportation for life.
(13) No doubt it is important for the Court to form an opinion in releasing an accused on bail about the evidence but that would be permissible only when that evidence was considered by the subordinate Courts in deciding the controversial issue of bail. It is not done in this case; rather it could not be done as no evidence by that time was recorded by the trial Court."
25. In the case of Muhammad Bashir v. The State PLD 1983 (SC) A J K 8 another principle enunciated on the basis of PLD 1972 SC 81 which was laid down is that the bail cannot be withheld as a punishment. I have also followed the same view in the case of Azmat Ullah v. The State PLD 1984 Azad J K.
26. The principles of bail are also mentioned in the case of Dilbahar Awan v. The State 1983 P Cr. L J 1027 by Sardar Said Muhammad Khan, J (now Judge of our Supreme Court) in the following words:- "I am of the view that grant or refusal of bail in a criminal case depends upon the particular circumstances of each case and it is not possible to lay hard and fast rules as to when a person, accused of an offence, punishable with death or transportation for life, should be released on bail.
The only criterion is whether in view of tentative assessment of the evidence and overall circumstances of a case, there are reasonable grounds to believe that accused is guilty of an offence, punishable with death or transportation for life. The existence or absence of "reasonable grounds" should be judged in light of peculiar circumstances of each case."
27. Now I would like to discuss some authorities cited by Raja Muhammad Aslam Khan the learned counsel for the petitioners.
28. In the case of Mubarak All v. The State 1979 P Cr. L J 45 the petitioners had caused no injury to the deceased. Prima facie the petitioners were held not appearing to have committed an offence punishable with death or life imprisonment. Bail was allowed in cricumstances.
' This case does not apply to the facts of the present case where there is a prima facie case of murder against the three petitioners and Muhammad Farooq.
29. In the case of Munshi v. The State 1979 P Cr. L J 71, the prosecution story appeared as doubtful and necessitated further enquiry. The possibility of self-defence could not be ruled out of consideration.
' This case does not apply to the facts in the instant case at all.
30. In the case of Mushtaq Ahmed v. The State, 1981 P Cr. L J 485. Both the petitioner and a co- accused were ascribed specific part of holding deceased by arms thereby enabling the principal offender in striking the deceased with a Toka. The co-accused had been enlarged on bail by invoking the principle of vicarious liability, therefore, the petitioner was also allowed bail in circumstances.
' In that case Munawar Hussain was below 16 and his age was treated as a subsidiary ground for the order for release of the accused on bail. The case of the petitioner was found alike with that of Munawar Hussain and , therefore, bail was allowed to him.
31. In the case of Jamshaid v. The State 1981 P Cr. L J 1102. Mr. Justice Muhammad Mae Lone, J allowed bail to the petitioners to whom only a "Jappha" was attributed. In that case there was some altercation between Babar co-accused and the deceased. The petitioners grappled with the deceased and Babar co-accused inflicted blows with a dagger on the chest, back and thighs of the deceased. The petitioners were not armed and the only role attributed to them was a "Jappha".
It was a case of further enquiry and, therefore, bail was allowed to them.
32. In the case of Muhammad Anwar v. The State 1981 Ei C M 850.
' Only "Jappha" was attributed to the petitioner Muhammad Anwar while the fatal blow was attributed to another co-accused. Two other co-accused were allowed ball and the petitioners' case was indistinguishable from their cases. The petitioner remained in the jail for more than 3 years and there was no likelihood of the trial commencing in the near future. The petitioner was released on bail under special circumstances of that case.
' This case does not apply to the instant ease.
33. In the case of Zafar v. The State 1984 P Cr. L J 1847.
' The bail was granted to the petitioner who was admittedly empty-handed and he did not cause any injury to the deceased. Learned Justice Muhammad Munir Khan, J. Granted bail because it was a case of further enquiry. In that case the petitioner and 2 others in, furtherance of their intention had caused the death of Muhammad Afzal. The petitioner was accompanied by his co-accused Shahid and Muhammad Amin, he gave a signal to the deceased to atop his motor cycle, he abused and caught hold of the deceased so that Shahid should be able to kill the deceased with a pistol fire.
34. In the case of Ismail v. The State 1983 P Cr. L J 1428, Mr. Justice Z.C. Valiani, J. Granted bail where the case against the accused regarding applicability of provisions of section 34,Penal Code required further enquiry. The fatal injury was not attributed to any individual including the accused in F.I.R. The learned Advocate for the petitioner had relied upon the cases reported in 1984 PCr.LJ 436; 1983 P Cr. L J 17, and 1982 P Cr. L J 383. The learned Judge observed at page 1427:- ' "It is clear from the version as given in the F.1.R. That there was a chance meeting between the deceased and the applicant and the other co-accused person, when the incident is alleged to have taken place and as such the question of applicability of the provisions of section 34, Penal Code would require further enquiry at the stage of trial, as the fatal injury is not attributed to any individual person including applicant, in the F.I.R."
35. In the case of Sher Muhammad v. State 1983 P Cr. L J 2019, the petitioner had allegedly caught hold of the deceased at the time of occurrence but himself had caused no injury to him. The question of the petitioner's vicarious liability required further enquiry and, therefore, bail was allowed to Allah Yar and the application of Sher Muhammad and Bahadur was rejected.
' In that case Allah Yar deceased was found in a compromising position with Mst. Karam Elahi and it appeared as a case of grave and sudden provocation. Hence it is also distinguishable.
36. Now I propose to discuss the authorities cited by the learned Additional Advocate-General, Mr. Muhammad Nisar Mirza and Choudhry Alleemud Din Advocate:-
37. In the case of Muhammad Naseer v. The State 1977 P Cr. L J 129 bail was declined. The petitioner had caught hold of the deceased from his neck and facilitated the commission of offence by his co-accused who gave a spear blow in the abdomen of the deceased.
' It was contended on behalf of the petitioner that he was empty-handed and that no injury was attributed to him. The learned Saleem Mazhar, J. Dismissed his petition.
38. In the case of Ghulam Muhammad v. The State 1978 P Cr. L J 8. Mr. Justice Gulbaz Khan, J.
Declined bail in a case where the petitioner had held the deceased while another co-accused had given a fatal blow to the deceased. Provision of section 34, Penal Code was found fully attracted and the offence was held to fall under the prohibitory clause of section 497(1), Cr.P.C.
' It is observed at page 9: "The name of the petitioner is mentioned in the F.I.R. Which was lodged with promptitude The petitioner took active part and facilitated the commission of murder.... In view of the part played by the petitioner, there are reasonable grounds to believe that he is prima facie guilty of offence punishable with death or life imprisonment. The case falls under the prohibitory clause of section 497, Cr.P.C. It is not fit case for grant of bail. The bail petition is dismissed."
39. In the case of Muhammad Ramzan and others v. The State 1978 PCr.LJ 863.
' One of the two petitioners took a victim in his grip, enabling the other to chop off his nose resulting in permanent disfigurement of his face for all times to come. The petitioners were named in the F.I.R. And the role attributed to them was also mentioned in it. The bail was declined by Mr. 4ustice Muhammad llyas, J. Of the High Court.
' I would like to produce para. 5 from pages 863-864-A:- "Both the petitioners are named in the F.I.R. And the roles attributed to them also find mention, therein. It is alleged that Ahmed Bakhsh petitioner held the victim in the grip (Chatta) to enable Muhammad Ramzan petitioner to remove his nose. Thus, the alleged contribution of Ahmad Bakhsh petitioner is not an insignificant one. Moreover, they are alleged to have committed the offence with a common intention. As stated in the F.I.R. The occurrence was witnessed by Munir Ahmad, Abdul Karim and Qazi Saeed. The offence alleged to have been committed by the petitioners has disfigured the complainant for all the times to come and it is punishable with imprisonment for life. In the case against them the evidence is yet to be recorded. I am, therefore, not inclined to admit them to bail at this stage. The petition is dismissed."
40. In the case of Mst. Barkat Bibi v. Gulzar and another 1979 SCM R 65 D. B., the respondent accused colluded with his co-accused and playing active role in transaction by catching hold of deceased and allowing principal accused to inflict fatal blow to the accused. Provisions of section 34, were held, prima facie, attracted and the respondent accused was not found entitled to bail. His bail was cancelled.
' In this case of Lyallpur, the bail granted in favour of Gulzar was cancelled. In that case, Kala had stabbed Mst. Perveen Akhtar with a dagger and Gulzar had facilitated the murder by catching hold of Mst. Perveen Akhtar.
41. In the case of Muhammad Arif v. The State 1981 SCM R 820 (822)A.
' The allegation against the petitioner (Muhammad Arif) was that he had held the deceased in a 'Japha' and his co-accused Ibrahim alias Kala and Munir thus facilitated, gave dagger blows to the deceased. The learned Waheedud Din Ahmad, J. Held that the petitoner's bail was justifiably cancelled by the High Court.
' It was observed at page 821:- "Mr. R.A. Awan the learned counsel for the petitioner has contended that the pettitioner was empty- handed, that now-a-days allegations of 'Japha' are made against the accused persons to entangle them in false cases, and therefore, it was fit case in which bail should be granted to the petitioner. The learned counsel relied on 1974 SCM R 376 in which this Court gave benefit of doubt to a person against whom the allegation of holding the deceased by 'Japha' was made. He further relied on 1976 P Cr. L J 758. The learned counsel further contended that Muhammad Ibrahim alias Kala has been discharged, and there is no reason why the petitioner, against whom there is only allegation of holding the deceased by 'Japha', should not be released on bail.
' After hearing the learned counsel for the petitioner, we are satisfied that the learned Single Judge of the Lahore High Court has exercised his discretion properly."
42. In the case of Muhammad Rafique v. The State, 1983 P Cr. L J 1965, the petitioner caught hold of the deceased from arms while co-accused struck him with a brick on temporal region. Bail was declined by Mr. Justice Muhammad Rafiq Tarar, J. Of Lahore High Court.
' I would like to reproduce para, 3 of that judgment from page 1966:- "I have gone through the relevant material. Both the accused persons are shown to have a motive against the deceased as he used to dissuade them from taking Charas near his house resulting in a quarrel one and a half months prior to the occurrence during which they threatened him with dire consequences. The complainant's version that both the accused raised Lalkara, grappled with the deceased and the petitioner caught hold of him from the arms before his co-accused struck him with the brick, is supported by two eye-witnesses. There was only one injury on the dead body in the nature of a contused swelling 6 c.m. x 4 c.m. On the left temporal region, extending downwards in front of left ear. There is substance in the contention of the learned counsel for the complainant that if the arms of the deceased had been free he must have endeavoured to ward off the blow and was likely to suffer injury on the hands during the process. The allegations prima facie show that both the accused acted in a pre-concert. In the circumstances, I do not consider it a fit case for bail. The petition is dismissed." (Underlining is mine).
43. Let me now point out that "life for life". (lex tolionis) has been the rule of Divine law right from Moses as it is found in the Pentatouch (Torat) and Injeel. This law has been retained by Islam. I would, therefore, first quote the Bible, then Quran and after that, a well-known Hadith.
44. Let me in the very beginning say that murder is a very heinous crime. 21:12 of Exodus (old Testament) reads:- "He that smiteth a man So that he die, shall be surely put to death."
' The punishment of Qisas, (Lex telionis, (life for life), appears in pentatouch i.e, even in Torat (Old Testament, Exodus: 21: 23, 24, 25 and 30 ' Here I would like to reproduce only Exodus 21: 24 which reads:- "Thou shalt give life for life, eye for eye, tooth for tooth, hand for ,hand, foot for foot, burning for burning, wound for wound, stripe for stripe."
' This passage is from the "Book of Covenant." Even Diyat is mentioned in ' Exodus 21:30 ' Then again the punishment for murder is found in Leviticus 24: 17-22 which reads:- ' And he that killeth any man, shall surely be put to death" Deuteronony 19:21: reads:- "And thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot."
45. The first 5 books of Old Testament are known as Pentatouch and we call them Torat. Hazrat Musa (Moses) was the .Prophet with a Shariat. The Holy Prophet Jesus did not bring a new law. He simply followed the law of Moses and modified its rigour with mercy. If a person slaps a man in his cheek, the victim was asked not to retaliate at all but forgive and produce the other cheek. The last Holy Prophet Hazrat Muhammad (May the peace of Allah be upon him) followed the middle course.
He retained the Lex telionis (Qisas) but allowed the heirs of the murdered person to forgive the murderer if they so choose. So the Muslim Law is the best of all as it is according to the Last Words of God contained in the Holy Quran.
46. In the Holy Quran, we find Qisas mentioned in:- (Al-Baqarah) 2: 178, 179 (Al-Maida) 5: 45 (Al-Anam) 6: 152 (Bani--Israel) 17: 33
47. The word Qisas has been used in the Holy Quran for the Law of Retaliation (Lex Telionis) and Qisas is of two kinds:-
(1) Qisas Bin-Nafas {{ARABIC TEXT}}
(2) Qisas in cases other than murder which is based on {{ARABIC TEXT}}
48. In the Muslim Law, the law of bail can be read in Books of Fiqah in the Chapter known as {{ARABIC TEXT}}
49. The concept of bail is derived from the Surae Yusuf of the Holy Quran (12:69) and Maulana Muhammad Shafi has remarked at page 94 of Musraf-ul-Quran Vol. 5: {{ARABIC TEXT}} 50 , Almighty Allah has, said. In the Holy Quran {{ARABIC TEXT}} "A person who commits a wilful murder of another person shall be sent to the Hell.
51. According to a well-known Hadith (tradition) quoted in Salkoh Bokhari, the following sins are known as major sins:-
(i) Shirk;
(ii) The violation of the rights of parents;
(iii) Wilful murder; and
(iv) Yameen-e-Ghmus.
' Here the accused is charged with wilful murder{{ARABIC TEXT}} which is punishable with B or chopping of the head with sword.
52. In the Kitabul Ikhtiar (Urdu translation) section 540 at page 194 reads:- {{ARABIC TEXT}} ' If a party murdered a person, all the members of that party who participated in the offence of murder, are liable to be punished by way of Qisas" (Alkafi).
53. Coming back to the instant case, I decline bail to the petitioners on the following grounds:-
(i) they are mentioned in the F.I.R. Even their particular role has been mentioned in the F . I .R . ;
(ii) the F.I.R. Was lodged with promptitude on the same day when the alleged murder took place;
(iii) there are four eye-witnesses in this case which, prima facie, implicate all the four accused persons with the murder of Shaukat Ali in very clear terms;
(iv) the version of the informant and other three eye-witnesses apparently seems corroborated by motive, post-mortem report etc.;
(v) there are, prima facie, reasonable grounds to believe that all the four accused persons are responsible for the murder of Shaukat All which offence is punishable with death or life imprisonment.
(vi) in the cases of murder the refusal is the general law and grant of bail is an exception. No case has been made out for even "further enquiry";
(vii) the discretion has been rightly and properly exercised by the learned members of the District Court of Criminal Jurisdiction, Kotli and no case of arbitrary or capricious or illegal exercise of this discretion has been made out by the petitioners;
(viii) the superior Courts saldom interfere with the discretion exercised by the trial Court;
(ix) prima facie, it appears to be a case of broad daylight murder due to vendetta and there appears no doubt about the identification of the accused persons who are known to the informant and other three eye-witnesses by name and face;
(x) the prosecution story as given in the F.I.R. And as told by the four eye-witnesses, prima facie, does not appear to be unnatural or improbable as contended by Raja Muhammad Aslam Khan, Advocate. However, the trial Court is free to assess, weigh and appreciate the evidence ^ when it is recorded. This is not the stage where such questions touching the merits of the case should be raised and
(xi) it appears to be a case of common intention and action under section 34, P.C.
54. I called the accused persons from the judicial lock-up and have seen them. None of them is a minor. The learned counsel for the petitioners did not rightly raise the point of age for the grant of bail. However, in the interests of justice, I have satisfied my judicial conscience.
55. The learned counsel for the parties have done much labour and I am thankful to them for the assistance which they have rendered to the Court.
' The result of the aforesaid discussion is that this Revision Petition is dismissed being devoid of any force. There are only 14 prosecution witnesses in this case and the learned members of the District Court of Criminal Jurisdiction, Kotli can easily dispose of this case within three months from today.