' RAJA MUHAMMAD KHURSHID KHAN, C.J.-- Munammad Arif, respondent herein, is roped in a murder case. He, alongwith some others, stands accused to do away with the life of one Muhammad Nazir, resident of village Malkey, Tehsil Bhimber, District Mirpur, with a gun fire. He is also accused of inflicting injuries on the person of Ghazanfar Ali, P.W., who also hails from the same village.
2. Muhammad Arif unsuccessfully moved for bail before the District Criminal Court, Mirpur. His application was disallowed on 27th of August, 1984. On appeal to the Azad Jammu and Kashmir Shariat Court, the learned Court, vide order, dated 30th of September, 1984, however, felt advised to allow bail to him. This appeal is meant to discredit the said judgment of the Shariat Court.
3. The prosecution case, in brief, is that during the night falling between 23rd and 24th of October, 1982, at about 9 p.m., Muhammad Latif, complainant, and Muhammad Nazir, his brother, were guarding 'Maash' crop on the thrashing floor. Muhammad Nazir was taking rest on a 'charpai' while Muhammad Latif, his brother, was laying on the floor. The accused party, nine in number, reached there and Muhammad Arif, one of them, gunned down Muhammad Nazir to death. Muhammad Siddique another accused, it is the prosecution case, while looking at the dead body of the deceased,said that a wrong person has been killed. One Muhammad Razaq attracted by the fire reached the scene of occurrence and saw the accused taking to their heels. Ghazanfar All and Muhammad Tariq sons of complainant present in the vicinity, enquired from the accused as to what they have done on which one of the accused persons fired at them which caused injuries on the persons of Ghazanfar
4. On completion of the investigation, Muhammad Arif was sent to the District Criminal Court, Mirpur, to face trial under sections 302/307, A.P.C., read with section 5 of the Islamic Penal Laws Enforcement Act, 1974. About other co-accused, namely, Muhammad Tariq, Muhammad Siddique, Khan Muhammad, Allah Rakha, Gulzar, Muhammad Siddique and Muhammad Akram, in the opinion of the Investigating Officer, there was insufficient evidence to connect them with any offence. So they were entered in column No,2 of the challan meant for the purpose and they were later on let off on bail by the District Criminal Court on 22nd of December, 1982.
5. It appears that Muhammad Latif complainant, not being satisfied with the investigation, lodged a private complaint against eleven person including Muhammad Arif respondent under sections 302/307, 148/149, A.P.C. And section 5 of the Islamic Penal Laws Enforcement Act, 1974, on 27-6-1983.
After recording the statements of the witnesses examined in support of the accusation, the District Criminal Court, on 22-3-1984 issued process against Muhammad Arif and Muhammad Siddique son of Munshi Khan under sections 14 and 15 of the Islamic Penal Laws Enforcement Act, 1974. The order is, however, silent as to why the accused were not summoned under section 302, A.P.C., read with section 5 of the Islamic Penal Laws Enforcement Act, 1974. Thereafter the learned Shariat Court, was moved in appeal to allow bail to Muhammad Arif which, as said earlier, was accepted vide order, dated 30-9-1984. Hence this appeal to discredit the said judgment of the Shariat Court.
6. The judgment of the Shariat Court shows that the Shariat Court felt persuaded to allow bail to the respondent, inter alia, on the following grounds: -
(i) that after entertainment of the complaint, proceedings in the challan were kept in abeyance and since after the preliminary inquiry in the private complaint, the trial Court issued process against the accused only under sections 14 and 15 of the Islamic Penal Laws Enforcement Act, 1974, it would be said that there was insufficient material to connect the respondent with the offence of murder and so bail is the legal demand;
(ii) that there has occurred inordinate delay in the disposal of the case which fact earns bail for Muhammad Arif, respondent;
(iii) that the incident had taken place at 9 o'clock of the night and there is very little evidence to show with certainty that Muhammad Arif, respondent, was identified. The learned Court is of the view that it still requires to be seen as to whether moonlit night was sufficient for the identification of the accused. The very fact that Muhammad Siddique, another accused, said that wrong person has been killed, makes the identification of Muhammad Arif doubtful and so it is a case of further inquiry and necessitates bail to Muhammad Arif.
7. We have heard the learned counsel for the parties. Ch. Muhammad Sharif Tariq, the learned counsel for the appellants, maintained:-
(i) that bail was wrongly allowed to Muhammad Arif because if the private complaint is the ditto copy of the challan (as the case here is) then the proceedings in both the cases simultaneously are permissible as is done in this case and the decision will be made by a single judgment. In his estimation, in these circumstances bail cannot be allowed in challan case. On the point he has referred us to Haji Noor Muhammad v. Haji Mubarak and others 1982 P Cr. L J 1054 in which it has been observed:- ' In the present case, I find, that private complaint is practically ditto copy of F.I.R. And P.Ws. In both the cases are same, so also accused persons. In view of this joint trial of private complaint alongwith Police case has not resulted in miscarriage of justice. In my opinion provisions of section 239, Cr.P.C. Have not been violated by joint trial of private complaint and police case in question.';
(ii) that the trial in the challan case has, commenced because in law when the statements under section 242, Code of Criminal Procedure, are recorded, it would be said that the trial had commenced and the learned Judge in the Shariat Court fell in error to hold that no trial has started in the challan case. In fact, he submitted, no trial has so far been started in the private complaint and the learned Judge of the Shariat Court fell in error to say that the trial had not commenced in the challan case;
(iii) that Muhammad Arif, respondent, can only be let off on bail if circumstances so warrant in the private complaint but not in the challan case.
8. As against this, Mr. Basharat Ahmed Sheikh, the learned counsel for the respondent, maintained:
(i) that the proceedings in the private complaint destroy the validity of the challan and as in the private complaint the respondent has been summoned only for the offence under sections 14 and 15 of the Islamic Penal Laws Enforcement Act, 1974, the approach to the issue by the Shariat Court is absolutely correct and needs no interference;
(ii) that there had occurred inordinate delay in the disposal of the case which fact also was rightly taken into consideration by the Shariat Court to allow bail to the respondent; and
(iii) that identification in the moonlit night, in the circumstances of the case, is doubtful and till it is established with certainty that the identification could be made during the moonlit night, the case is of further inquiry and the respondent, as of right, should remain on bail.
(iv) Here we may state that for offences punishable with death or transportation, discretion to grant bail is subject to the limitation that bail is not to be allowed to an accused person, if it is shown that there are reasonable grounds to believe that he has committed such an offence. In order to ascertain whether reasonable grounds exist or do not exist, the Courts do not have to probe into merits of the case. They have only to look at the material placed before them by the prosecution, to see whether some tangible evidence is available against the accused, which, if left unrebutted, may lead to the inference of guilty. Reasonable grounds, of course, are not to be confused with mere allegations or suspicions, nor with tested and proved evidence, which the law requires for a person's conviction for an offence. The word "appear" in section 497, Code of Criminal Procedure, seems to have been purposely used inasmuch as at a preliminary stage of investigation or inquiry of a case of murder, it is neither possible, nor proper for a Court to give a conclusive finding on the merits of the case while disposing of an application for bail. In such cases the Shariat Court/High Court, will very rarely enter into the merits of a case for the purposes of determining whether or not a person whose trial has to be held by a Court subordinate to the Shariat Court/High Court should be enlarged on bail.
(v) In a case where the ground urged is that the evidence is too weak and the case may ultimitely fail (as the case is before us), the Court will ordinarily avoid detailed examination touching the merits of the case. Of course, where reasonable grounds are not disclosed but grounds do exist for a further investigation and inquiry into the guilt of an accused person, the case will fall under section 497(2), Code of Criminal Procedure, in which case bail should not be withheld. In such cases the Court has not to examine the merits of the prosecution case or the plea of the defence or to make an appraisal of the material on the record but, merely to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilty. The Court cannot conduct a preliminary trial at the bail stage, because it is not possible to determine the point one way or the other without a full appraisal of the evidence that has been led or may be led, and the Courts should not be invited to do that, as it would lead to pre-judging the material issues in the case, while deciding the bail application. Such an attempt before the higher Courts in particular, is wholly undesirable, as any expression of opinion by them on the merits of any point of substance in the case is bound to prejudice its ultimate decision.
11. It would thus follow that where the crucial point on the determination of which materially depends the existence or otherwise of reasonable grounds to believe whether the petitioners are guilty of an offence punishable with death or transportation (as the case is before us) is whether moonlit night was sufficient to identify a person, the question essentially relates to the merits of the case and it is not desirable to give any finding on it one way or the other while dealing with a bail matter. It would, in fact, amount to pre-judging an issue which is always desirable to be left for the view of the trial Court.
12. It is significant that section 497, Code of Criminal Procedure, speaks only of reasonable grounds and not of evidence. It is necessary for the purpose of granting bail to a person charged with offences punishable with death or imprisonment for life that the evidence brought on the record should be looked into and a prima facie view formed as to whether there appear reasonable grounds for believing that he is guilty of murder. For this it has to consider as to whether upon the material on the record if no further evidence is called or no rebutting evidence is adduced, the accused can be found guilty or not. If it can be then there will be a case where reasonable grounds exist for forming the. Belief required under section 497 of the Code of Criminal Procedure and the Court would be justified in refusing bail. Where the prosecution can satisfy the Court that there are reasonable grounds for believing that the accused is guilty of serious offence, which is punishable with death or transporation for life, the Court has no discretion, it must, refuse bail.
13. The superior Courts, while deciding the application for bail, should remember that appreciation evidence and drawing of conclusion therefrom is exclusive function of the trial Court and the superior Courts should not anticipate it while dealing with bail matters. So was held in Chiragh Din and others v. The State PLD 1967 SC 340. It was observed in that case:- "The appreciation of evidence and the drawing of conclusions therefrom in relation to all the circumstances is the function exclusively of the trial Court. It cannot be anticipated by a superior Court dealing with an ancillary matter, e.g., the grant of bail, pending trial ."
' The above analysis regarding the bail matters is the criteria on which generally Courts are guided in bail matters.
14. Let us now, with some details, see as to whether discretion in the instant case has been exercised in a legal way by the learned Shariat Court in allowing bail to the respondent. In the first instance it appears that all the relevant facts have not been brought to the notice of the learned Chief Justice of the Shariat Court and this fact had occasioned miscarriage of justice. In the first place the contention of the learned counsel, which has influenced the Court to make up its mind for bail, that even the statements of the accused under section 242, Code of Criminal Procedure, have not been recorded in the challan case, is incorrect. We find that statement of Muhammad Arif, accused-respondent, in the challan case under section 242, Code of Criminal Procedure, has been recorded by the District Criminal Court on 21-2-1983. Thereafter from 21-2-1983 up to 27-6- 1983 on different dates the prosecution evidence was being summoned. During this period on 19-4- 1983 two prosecution witnesses, namely Muhammad Latif and Muhammad Razzaq, were present but their statements could not be recorded due to the absence of the learned counsel for Muhammad Arif, accused-respondent and the case was adjourned to 27th of June, 1983, for recording prosecution evidence. On this date again Muhammad Latif and Muhammad Razzaq, prosecution witnesses, were present but the learned counsel for the complainant requested that the evidence in the challan may not be recorded as the complainant has moved a private complaint. On this date it was ordered that it would not look proper to record the statements of prosecution witnesses till some decision is made in the complaint. Again on 13-12-1983 it was ordered that this file shall be taken up after proper orders in the private complaint. On 22nd of April, 1984, it was ordered in the challan case that Muhammad Siddique accused who was summoned in the private complaint may be summoned through a non-bailable warrant. The Interim orders show that Muhammad Siddique was not traceable and the constable who executed the warrants was summoned for recording his statement to enable the Court to proceed against Muhammad Siddique under section 512, Code of Criminal Procedure. Similarly in the private complaint, as said earlier, process was issued against Muhammad Arif and Muhammad Siddique and the case was fixed for 2nd of May, 1984. On this date Muhammad Arif was present. Thereafter it was heeded to secure the attendance of Muhammad Siddique co-accused but as he was not found in Azad Kashmir the constable who made the report of his absence from Azad Kashmir was being summoned for recording his statement to enable the Court to proceed against Muhammad Siddique in his absence.
15. It would thus appear that the learned District. Criminal Court felt advised to proceed with the trial of the accused in both the cases, challan as well as private complaint, simultaneously, and it cannot be, therefore, said that the proceedings in the challan case were kept in abeyance. The proceedings, no doubt, were suspended till the accused were summoned in the private complaint.
The fact of the matter is that the proceedings in the challan case had already started and were kept in abeyance only till the process was issued in the private complaint. Muhammad, Siddique, accused, was being summoned in the private complaint as well as in the challan case.
16. Even if we believe that the order of the release on bail in the private complaint was correct we wonder how he could be released on bail under section 302, A.P.C., read with sections 5 and 6 of the Islamic Penal Laws Enforcement Act, 1974, in the challan case. But while looking into the 'Machalka' and 'Zamanatnama' we find that they are meant to cover the case under section 302, A.P.C., read with sections 5 and 6 of the Islamic Penal Laws Enforcement Act, 1974. On the point the argument is not difficult to be advanced that the Shariat Court entertained the erroneous belief that challan was not legally alive in presence of private complaint though in fact proceedings were very much ahead in the challan case too, and the constable was being summoned to have recourse to section 512, Code of Criminal Procedure, with regard to Muhammad Siddique.
17. We have also looked into the complaint and the statement of the witnesses examined in support of the accusation in the private complaint. In the statements, part for murdering the deceased is attributed to Muhammad Arif but he has been only summoned under sections 14/15 of the Islamic Penal Laws Enforcement Act, 1974. What effect it would create is a question on which we refrain to express ourselves at this stage and leave it to be decided by the District Criminal Court. May be that it was an omission curable or capable of being rectified under law. It is also interesting that application for bail before the District Criminal Court on behalf of the respondent was moved to allow him bail under section 302/307, A.P.C., read with section 5 of the Islamic Penal Laws Enforcement Act. The application was disposed of as such by the District Criminal Court. Likewise in appeal before the Shariat Court the bail was sought for the offence under section 302/307, A.P.C., read with section 5 of the Islamic Penal Laws Enforcement Act. This clearly suggests that Muhammad Arif sought bail in the challan case where he was facing the trial under sections 302/307, A.P.C., read with section 5 of the Islamic Penal Laws Enforcement Act. When the proceedings in challan case are in progress and there is no order that the proceedings in that case shall stay we are constrained to say that the Shariat Court erroneously released Muhammad Arif on bail in the challan case too. Grounds for bail even if made out in the private complaint cannot be, in the circumstances of the case, made a valid ground for bail in the challan case. If the proceedings in the challan case have not been stayed (as in the case here) and in the private complaint Muhammad Arif has not been summoned under section 302/307, A.P.C., read with section 5 of the Islamic Penal Laws Enforcement Act, bail in the complaint and not the challan, could be allowed under sections 14/15 of Islamic Penal Laws Enforcement Act and not for any other offence in which he has not been summoned in the private complaint. If we allow bail in some other offence not known to the private complaint, the order may be considered to have been passed in vacuum and can be said to be non-existent.
18. In the ,challan case, as said elsewhere, the learned District Criminal Court, after recording the statement of the accused, Muhammad Arif, issued process against Muhammad Siddique who was also summoned in the private complaint. This means that the District Criminal Court felt advised to proceed with the trial of the accused simultaneously in both the cases. In the circumstances of the case we feel that the learned Shariat Court has passed the impugned order probably under the erroneous belief that the proceedings stand stayed in the challan case.
19. The accused were identified in moonlit night. Whether the lower Court would believe the identification to be correct in the moonlit night is a question which is entirely the function of the trial Court and the Shariat Court, while allowing bail in such like matter, fell in error to hold that it is a case of further inquiry. It in fact amounts to pre-judging the issue which is no function of the Shariat Court while disposing of the bail matter. Whether moonlit night would provide a sufficient material to hold that the accused were identified is a function of the trial Court and no artificial construction can be given to the words "further' inquiry" .
20. Another factor that there was delay in the disposal of the case also weighed with the Shariat Court in releasing the respondent on bail. We have looked into the interim orders of the various dates and we feel that this delay had occurred due to the conduct of the accused or his counsel.
No doubt, some other factors are also noticed which have caused delay in the decision of the case but on facts established, the delay has not been caused mainly due to the inaptitude of the prosecution.
21. Our considered view, therefore, is that the discretion in allowing bail to Muhammad Arif, respondent, under section 302/307, A.P.C., read with section 5 of the Islamic Penal Laws Enforcement Act, 1974, has not been exercised in a legal fashion and needs our interference.
The upshot of the whole discussion is that while accepting this appeal we recall the passed by the Shariat Court on 30-9-1984 and restore the order of the District Criminal Court dated 27-8-1984.
The cancellation of the will naturally have its legal consequence.
Bail cancelled.