' RAJA MUHAMMAD KHUIRSHID KHAN, C. J.-Through this appeal, Shabir Hussain Shah, appellant herein, wants reversal of the judgment passed by a learned Single Judge of the Shariat Court on 26-4-1986. By this judgment, the learned Judge refused to extend concession of bail to the appellant.
2. The appellant, alongwith four persons, namely, Talib Hussain Shah, Azmat Shah, Hassan Shah and Qasim Shah, accused (since released on bail either by the District Criminal Court ,or the Shariat), is involved in a case under sections 147, 148 and 149, Penal Code, read with sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and section 15 of the Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974, for abducting one Mst. Razia Begum on 22-3-1986 within the area of Village Phalian while she, alongwith her father and sister, Anwar Hussain Shah and Mst. Jamila Begum, 'was on her way to Pallandri to take Matriculation examination. The prosecution's further case is that Mst. Razia Begum, Jamila Begum and their father, while resisting the illegal act of the accused were also beaten by the accused.
3. The learned counsel for the appellant, Kh. Muhammad Saeed, while arguing the case on behalf of the appellant, submitted that since it still remains to be seen as to whether Mst. Razia Begum, as alleged by the appellant, had willingly accompanied him to his house or as the prosecution says she was abducted by the appellant and the others, it is a case of further inquiry and the learned Judge in the Shariat Court erred in not allowing concession of bail to the appellant. It was further contended by the learned counsel that in the cases of the nature bail is generally allowed pending trial. He has referred us to Bhag v. The tate (1), Rasheed v. The State (2), Mansha v. The State (3), Asghar and Fazla v. The State (4) and Muhammad Bashir-and another v.
The \tate (.)) in support of his contention that bail in the cases of the type is generally allowed.
4. We have looked into the cases cited by the learned counsel. We have no quarrel with the law enunciated in the cases referred to above but each case is to be adjudged in view of the circumstances of that case. The case-law, strictly speaking, applies to the case in which it is enunciated. Therefore, the statement of law in one case ; and particularly in a criminal case, no doubt, provides a guideline in such like cases but it would no apply ; rather cannot apply in its entirety to the facts of the other case. Each case is to be decided on its own facts.
5. Whether the circumstances warrant bail in this case ? In this case Mst. Razia Begum, in her statement under section 161, Cr. C. P., states that she was forcibly lifted from her way to Pallandri and later on subjectedi
(1) 1982 P Cr. L J 1191 (2) 1983 P Cr. L J 2420
(3) 1984 P Cr. L J 2480 (4) 1984 P Cr. L J 2469
(5) PLD 1983 SC (A J & K) 8 to Zina by Shabir Hussain Shah, appellant. Her version, prima fade, finds support from the report of the Chemical Examiner in which it is stated that 'swab is stained with semen and blood". Besides, the occurrence also stated to have been witnessed, apart from Jamila Begum and Anwa Hussain Shah by Safir Afzal and Nasir Mahmood too who more or less own the prosecution case. Can we say that on the face of the above circumstances the Shariat Court has not exercised the discretion in a legal fashion in disallowing bail to the appellant ?
6. In this respect let us first determine the scope of the powers of Court to interfere with the discretion exercised by the Shariat Court or the High Court in bail matters.
7. It is now settled law that a grant or refusal of bail by the Shariat court or the High Court is primarily in the discretion of those Courts and the Supreme Court would not ordinarily interfere with the exercise of such discretion unless it is shown that the discretion has been exercised in a perverse or capricious manner. The Supreme Court, it is also the law, rarely embarks upon a detailed inquiry into factual matters.
8. In the present case since the discretion exercised by the Sharia Court in disallowing bail to the appellant does not appear to have bee exercised arbitrarily or perversely, no interference in the order by this Court, therefore, is justified.
9. The matter of bail, as said earlier, is essentially in the discretion the Shariat Court/High Court and if after appreciating the overall facts and the circumstances of the case it is held that the case of an accused has some features of distinction from the case of the co-accused, released on bat (as is done in this case), the order of the Shariat Court/High Court cannot be said to suffer from any legal or factual infirmity of fundamental nature so as to call for interference by this Court. We are fortified in our vie in Sultan Khan v. Amir Khan and another (1), Muhammad Ismail v. Patten Malak and others (2), Karamat Ali v. The State and another (3) and Inayatullah and 4 others v. The State (4).
10. It would appear that in the instant case the Shariat Court on good grounds found that there is prima facie evidence to connect they appellant with the offence of abducting Mo. Razia Begum and thereafter committing Zina on her person. The offence, if proved, can be met with life imprisonment. Ordinarily in offences which carry life imprisonment, bail is not allowed.
' The discretion exercised, thus, does not suffer from such infirmity as to call for any interference. For the above- stated reasons this appeal having no force, is dismissed hereby.
(I) P D 1977 SC 642 (2) 1979 SCMR 91
(3) 1979 SCMR 438 (4) 1979 SCMR 441