' SHER ZAMAN CHAUDHRY, J.-- Respondents-accused charged with the offences under sections 302, 307, 341, 392, 148, 149 and 147 A.P.C. Read with sections 5/15 of Islamic Penal Laws Act and section 17 of Offences Against Property (Enforcement of Hadood) Ordinance, after having been unsuccessful in the District Criminal Court, were allowed the concession of bail by the Shariat Court. This appeal is for the cancellation of it.
2. The facts as claimed by the prosecution briefly stated are that Muhammad Nazir complainant, a resident of village Draik, had a footwear store in Rawalakot city. On the morning of 9-7-1983, he had gone to his shop to attend the daily routine. By noon his brothers Muhammad Rafique and Muhammad Hanif had also arrived in the bazar. They purchased some items of furniture, from Qazi Munir. To hire a Suzuki van for the transportation of furniture to their village they contacted Muhammad Razaq Suzuki driver who agreed to do the job on payment of Rs,50. Later on, at about 4 p.m, when they tried to load the furniture Muhammad Razaq accused changed his mind and declined to do the job. This led to an altercation between the driver and Muhammad Rafique deceased. The complainant intervened to save the situation from developing into an ugly scene.
The matter ended there. Thereafter, at about 4-30 p.m. Another Wagon driven by Shah Behram was hired. The complainant accompanied by his brother Muhammad Rafique and his uncle Naqi Muhammad while going in the wagon towards Munir crossing for loading the furniture was stopped in the crossing by Muhammad Razaq, Muhammad Ishaque, Muhammad Saleem, Muhammad Nasir, Murtaza and Muhammad Shafait accused who appeared on the scene armed with pistol, knives and Lathis. Complainant, his brother and uncle were pulled out of the wagon, attacked and were inflicted injuries with 'Lathis' and knives by the respondents-accused and other co-accused. Complain nt and his brother Rafique were then hit by bullet shots fired from pistol by Muhammad Ishaque. Their brother Muhammad Hanif who tried to rescue them was also attacked and injured by the accused party. While Muhammad Nazir complainant was lying injured Muhammad Ishaque accused is claimed to have taken Rs,50,000 out of his pocket. In the meantime P.Ws. Muhammad Rashid Hasrat, Babar Hussain, Muhammad Riaz, Muhammad Arshad, Muhammad Razaq Khan and Shah Behram, attracted by the fight, are claimed to have arrived on the scene. The accused party, it is claimed by the prosecution, launched this attack to avenge the previous incident that took place between Muhammad Razaq Suzuki driver and Muhammad Rafique. The accused party then disappeared from the scene.
3. All the injured persons were then taken to C.M.H. Rawalakot where Muhammad Rafique died on 19-9-1983. A case was first registered against the accused party under sections 307, 341, 391, 147, 148 and 149, A.P.C. Read with section 17 of Offences against the Property (Enforcement of Hadood)
Ordinance and section 15 of the Islamic Penal Laws Act but later on when Muhammad Rafique died offence under section 302, A.P.C. Read with section 5 of Islamic Act was also added. Respondents Muhammad Nasir, Muhammad Saleem and Murtaza were arrested by the police but other co- accused, namely, Muhammad Razaq, Muhammad Ishaque and Shafait evaded the arrest and are still absconding. Apart from Muhammad Nazir, Naqi Muhammad and Muhammad Hanif, the injured persons, Babar Hussain, Arshad, Muhammad Razaq, Rashid Hasrat, Muhammad Riaz, Sher Behram and Muhammad Khurshid are also claimed to be the witnesses of the occurrence. The present respondents then through separate applications moved by them, applied for bail but were refused this concession by the District Criminal Court vide its order, dated 11-10-1983. On appeal however, they were released on bail by the Shariat Court on the ground that 3 of the P.Ws., whose affidavits were filed by the respondents in the District Criminal Court, have refused to support the prosecution to the extent of present respondents and that no fatal injury is alleged to have been caused to the deceased by these respondents. So, therefore, there existed no reasonable ground in the estimation of the learned Judge, in the Shariat Court, to believe that they were guilty of offences punishable with death and imprisonment for life and that it was a case of further inquiry.
4. Feeling dissatisfied with the order of bail recorded on 5-11-1983 and announced on 12-11-1983, by the Shariat Court, the appellant now, through this appeal, seeks the reversal of it.
5. Sardar Rafique Mahmood, the learned Advocate-General, assisted by Raja Mumtaz Hussain Rathore Advocate for the complainant, argued that it was a daylight occurrence witnessed by altogether 10 witnesses, 3 C them were injured. The challan has been presented against the respondents and the absconding co-accused. There exists a strong prima facie case clearly connecting the respondents with the crime. Section 497 (2) of Cr.P.C. Has been misconstrued and misinterpreted by the learned Shariat Court. The order thus passed allowing bail to the respondents has been made for invalid reasons and in total disregard to the rules governing bail matters and has vitiated the impugned judgment which could not legally be maintained, submitted the learned A dvocate-General .
6. Mr. Sher Muhammad Khan, the learned counsel for the respondents, on the contrary submitted that the fact that 3 of the eye-witnesses, as appears from their affidavits, filed by the respondents, have denied the respondents' complicity and participation in the occurrence and that no fatal injury which resulted in Muhammad Rafique's death was inflicted by them, was a clear manifestation of the fact that it was a case of further inquiry. The impugned judgment was perfectly in accordance with law. It was, therefore, according to the learned Advocate open to no exception. Reference in support of his contention was made to 1978 P Cr. L J. 404, PLD 1978 Lah. 1133 and 1984 PCr.LJ 1433.
7. In order to have a correct perception of the point involved and for its proper determination it must first be ascertained as to what precisely is meant when it is said that there are no reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt as provided under section 497 (2) of the Code and whether the present case, in view of the material available on record, could be regarded as a case of further inquiry entitling the respondents to the benefit of bail envisaged under part 2 of the section.
8. Bail to an accused charged with an offence punishable with death sentence or imprisonment for life would not ordinarily be permissible if there appears reasonable ground that there exists a prima facie case tending to connect him with the crime. To determine if reasonable grounds exist or a prima facie case appears to have been made out against the accused from the facts in a given case, a deeper appreciation or a probe into the merit of it is not required to be conducted.
The Court has to form a prima facie view from the material A available on record and see whether such material or evidence if left unrebutted may lead to the inference of guilt. If such tangible evidence exists then it will be a case wherein it could be said that there exist reasonable grounds for holding the belief required under the section disentitling the accused to the concession of bail.
Where such an inference about his guilt could not be drawn it would then be said a case of further injury covered under part 2 of section 497.
9. The question that next needs resolution is whether the impugned judgment allowing bail to the respondents has been passed by the Shariat Court in accordance with the rules governing the bail matters. We have carefully examined the material available on record including the police diaries.
Altogether 10 persons are claimed to be the witnesses of occurrence, except Muhammad Khurshid all others are named in the F.I.R. Out of these Rashid Hasrat, Muhammad Riaz and Shah Behram, on the basis of their affidavits filed by the respondents before the District Criminal Court, are claimed to have denied the presence of respondents on the scene at the time of occurrence. From the perusal of the impugned judgment, the learned Judge, in the Shariat Court appears to have been impressed by these affidavits and also by the fact that no fatal injury on the person of the deceased is attributed to the respondents.
10. With regard to the affidavits, these could not be made basis for the conclusions that were arrived by the Shariat Court for the reasons that 3 of these affidavits attested on different dates were filed on behalf of Shah Behram. One relating to Muhammad Nasir respondent was attested on 23-7-1983 while other 2 were attested in September, 1983. One related to Saleem and the other to Muhammad Naqi and Muhammad Shafait respondents. Three others on behalf of Muhammad Riaz relating to Nasir, Saleem and Murtaza attested on 18-7-1983, 8-9-1983 and 10-9-1983, respectively were filed by the respondents. While another attested on 10-9-1983 was filed on behalf of the P.W. Rashid Hasrat, according to which the deponent except the absconding accused neither knew other accused nor could he recognise because of confusion that prevailed during the ocurrence. All these documents were neither sworn nor presented before the District Criminal Court by the deponents themselves. They are not found to have appeared before the Court to support these documents at any stage of the proceedings. These have been attested by the Oath Commissioner but without any verification of the identity of the deponents. The contents of these documents could not in our estimation, therefore, even be treated as evidence within the terms of Evidence Act. We are supported in our view by a judgment of Karachi High Court in case titled 'Allandito and another v. State PLD 1984 Kar. 223 wherein while dealing with the proposition Mr. Abdul Hayee Kureshi, Actg. C.J. Observed:- "There is a growing tendency in the Sessions Courts to take notice of and rely on ex parte affidavits of prosecution witnesses, stating that the accused were not guilty and minimising the extent of their guilt. These affidavits are not sworn in the Courts, but before some Oath Commissioners, and the contents thereof are not evidence within the meaning of the Evidence Act. The deponent's averments are not tested by Courts and normally the Courts do not even compare the contents of earlier statements of these witnesses with the statements made in affidavits and such affidavits would normally be of no value, unless there are very strong circumstances to indicate that the police investigation was dishonest..."
The learned Shariat Court however, it seems, did not think it necessary to consider this vital aspect of the case. The impugned judgment having been based on invalid reasons relating to the point was, in our view, violative to the rules that governed the bail matters. Besides, the fact that cannot be lost sight of is that there are still 7 P.Ws. Who, from their statements recorded under section 161 of the Code of Cr.P.C. Appear to be the witnesses of occurrence. Three of these are injured witnesses.
Without adverting to their statements clearly connecting the respondents with the crime and making out a prima fade case, the finding by the Shariat Court that it was a case of further inquiry was, in our view, unwarranted in law. The Court had to ascertain whether there existed a prima facie case on the consideration of all the material available on record. The finding on the point thus arrived at by the Shariat Court for having been based on invalid reason could not be maintained.
We have also gone through the reports of the cases referred to by the learned Advocate for the respondents. The facts of these cases are quite distinguishable from the one now under consideration. In those cases all the P.Ws. Had, by their affidavits before the Court, refused to attribute any part to the petitioners-accused. We are, therefore, in agreement with the learned Advocate-General that interference by the Shariat Court with the order of District Criminal Court, which was passed in proper exercise of the discretion vested in it, was unwarranted and violative to the rules governing the bail matters.
11. Another reason that weighed with the Shariat Court for holding the case relating to the respondents as of further inquiry was that fatal injury that resulted in the death of Muhammad Rafique deceased has not been attributed to any of the respondents. The injury that proved fatal was a bullet shot fired from a pistol by Muhammad Ishaque co-accused. The respondents- accused are only claimed by the prosecution to have been armed with 'Lathis' and are alleged to have inflicted simple injuries to the complainant party. The case, according to the learned Shariat Court, was of a further inquiry and as such they were entitled to the concession of bail.
12. We have given our careful thought to the point involved. The case of the prosecution is that all the accused including the respondents, being members of unlawful assembly armed with weapons like pistol, knives and Lathis, had acted in preconcert. So, therefore, each one of them, according to the prosecution, was responsible and a clear prima facie case connecting the accused-respondents with the crime stood established. We have carefully gone through the F.I.R., Medico-legal reports and the statement of P.Ws. Recorded under section 161 of the Code.
Considering the evidence it cannot be said that there existed no prima facie case. It is not possible, in our view, at this stage to rule out their participation in the offence with whict they have been charged. The proposition came to be considered in Hakim All and 3 others v. The State 1979 SCMR
114. It was contended on behalf of the petitioners in that case that they were unarmed and were not claimed to have caused any injury to the deceased. While dealing with the point Mr. Nasim Hasan Shah, J. Observed:- "The principal argument in support of the plea for bail is that the fatal injury as well as other injuries were caused by sharp-edged weapons and according to the F.I.R. Are attributed to Muhammad Azam and Mian Khan co-accused who were armed with knives, the petitioners being empty- handed are not liable to be convicted for offences under section 302/307, P.P.C. But they are shown as accompanying Muhammad Azam and Mian Khan accused when they attacked the complainant party and there is a specific allegation against the petitioners that they clasped Muhammad Arshad and Muhammad Afzal P.Ws. To enable and facilitate co-accused Muhammad Azam and Mian Khan to inflict knife injuries on their persons. As such, it is not possible to rule out, at this stage, their participation in the offences with which they have been charged."
' In Iqbal v. State 1982 SCMR 84 while considering the point Mr. Dorab Patel, J. Observed:- "It is no doubt that the petitioner was allegedly armed with a stick and that no injury with a blunt weapon attributed to him was found on the body of the deceased. But that circumstance alone does not necessarily exculpate him. From the F.I.R. It appears that accused acted in preconcert and the petitioner was also assigned the active role of having taken out the money from the pocket of the deceased after he had been shot dead at the spot."
' In the instant case active role has clearly been attributed to the respondents in the F.I.R. Besides, there are statements of 7 P.Ws. 3 of them injured, according to which the respondents are claimed to have actively participated in the occurrence. It cannot, therefore, under the circumstances be said that no prima facie case appears to have been made out against them.
For the foregoing reasons we find that the learned Shariat Court by its failure to attend to the points involved in their proper perspective has acted contrary to the rules governing the bail matters. The impugned judgment allowing bail to the respondents for having been based on invalid reasons and on supperficial view of the points involved is, therefore, set aside. Since the challan has been presented the respondents-accused will be at liberty to apply for bail afresh if they so feel advised after the statements of injured witnesses have been recorded. Their bail bonds stand cancelle.
Bail cancelled.