' Through this appeal the appellant has called in question the legality and propriety of the judgment of the District Criminal Court, Rawalakot - Poonchh, dated November 2, 1992, whereby the bail application of the appellant was rejected.
2. The succinct facts constituting the background of this appeal are that a case under section 5 of Islamic Penal Law read with sections 147, 148, 149 and 34, Penal Code was registered against the appellant alongwith other accused persons at Police Station Rawalakot. On 6-7-1990, the complainant moved an application before S.H.O., Police Station Rawalakot stating therein, that his father Muhammad Sarwar son of Alam Sher, Caste Pathan came to Rawalakot Bazar for his some personal affaiRs, At about 6 o'clock, he alongwith his father and brother Ejaz proceeded towards his house. As soon as they reached near the Supply Bazar, near the Octroi Post, then suddenly Fiyyaz Shahid son of Muhammad Nascer, Ishaque son of Muhammad Ameer, Maqsood son of Sarwar, Khalid son of Ahmed, castes Sudhan, appeared and attacked them. They started firing. Fiyyaz Shahid fired two shots at his father with the pistol of .32 bore. These fires hit on the forehead and at left leg of the father, while Maqsood also fired a shot from the Revolver with the intention of murder of the father. His fire hit on the right leg of the father. Rest of the accused were armed with the sticks. Due to the injuries of the aforesaid firing, the father fell down. The accused ran away from the place of occurrence while firing. The father was brought to the hospital at Rawalakot, where he succumbed to the injuries. There was a dispute of some Khalsa Land between the father and Fiyyaz Shahid -etc., due to which they committed this murder. On this information the aforesaid case was registered against the appellant alongwith the other accused persons.
3. This unfortunate episode is the sequel of the lust of the land, which is improving day by day in the society in which we are living, and we have been indulged so much in mundane affairs, shat we have left to observe the moral values and the lust of the land has converted the conduct of the human being into the conduct of wild beast.
4. After the completion of the investigation, a challan was presented against the appellant alongwith the other accused before the District Criminal Court, Rawalakot. Prior to this, the appellant moved an application for bail before the District Criminal Court, Rawalakot, which was declined by the trial Court. After that, the appellant moved before this Court and the application of the appellant was rejected by the learned Chief Justice of the Shariat Court vide order, dated 9-7- 1991.
5. After that now again, the appellant moved a bail application which was rejected by the District Criminal Court, Rawalakot Poonch vide order, dated 2-11-1992. Now the instant appeal has been filed against this order of the District Criminal Court.
6. The learned counsel for the appellant, Sardar Rafique Mehmood Khan argued, that although, prior to this, the bail application of the appellant was rejected by the learned Chief Justice of the Shariat Court of Azad Jammu and Kashmir, but now the statements of the eye-witnesses have been recorded, so now he wants to invoke the jurisdiction of this Court on the basis of the evidence recorded by the trial Court. It was next contended by the learned counsel for the appellant, that the injuries attributed to the appellant are not the cause of death of the deceased so it cannot be said, that he caused the injuries to the deceased with the intention of murder. It was also contended by the learned counsel for the appellant, that the report of the Fire-arm Expert pertaining to the revolver allegedly recovered from the appellant is negative, so it also requires further inquiry that whether the appellant fired with the Revolver or not? It was also maintained by the learned counsel for the appellant that Muhammad Sadiq witness has stated that the deceased was also firing. He referred PLD 1988 SC (AUK) 14 and unreported case Javeed v. The State.
7. While controverting the arguments of the learned counsel for the appellant, the learned Advocate-General argued, that on all these grounds the bail has already been rejected by the Shariat Court. No fresh ground has been made out by the learned counsel for the appellant. So far as the statement of Muhammad Sadiq is concerned, the appellant wants the deeper appreciation of the evidence, which is not permissible at the stage of bail. He further submitted that as the statement of Muhammad Sadiq is concerned, this portion of the statement of Muhammad Sadiq clearly shows that the learned Sessions Judge instead of the word "Maqsood" wrongly wrote the words "Maqtool". He also contended that the deceased after receiving the fire-arm injuries fell down, how it would have been possible for him to use the fire-arm.
8. I have heard the arguments of the learned counsel for the parties and have also gone through the relevant record of the case.
9. In the instant case prior to this, the bail application was rejected by the learned Chief Justice of Shariat Court of Azad Jammu and Kashmir, while considering the merits of the case and now the appellant cannot be allowed to repeat his first application. His second application is only competent, if new genuine grounds have been made out, after the disposal of the first application.
Although, there is no bar on the second application, but at the same time it cannot be allowed to repeat the same application, again and again on the same grounds. In the present case, the question arises that whether after the disposal of the previous application, any fresh ground has been made out by the appellant or not? As the grounds advanced by the learned counsel for the appellant are concerned, those all grounds were available to the appellant at the time of previous bail application, except that the statements of some of the witnesses had been recorded. All those grounds were considered by the learned Chief Justice while deciding the bail application. As this ground of the learned counsel for the appellant is concerned, that after the rejection of the previous bail application, the evidence of the witnesses have been recorded, I have considered this argument of the learned counsel for the appellant. After the rejection of the previous bail application, the evidence of Muhammad Siyyab, Muhammad Ejaz, Muhammad Sadiq and Khalid Mehmood have been recorded. Now this is to be seen, that after recording the statements of the aforesaid witnesses, some new material has come on the record, which entitled the appellant for the grant of bail or any negation or contradiction of the version narrated by the aforesaid witnesses before the police has been brought on the record or not and if no such contradiction of their previous version has been brought on the record, then of course, the application of the appellant cannot be considered, and if the aforesaid witnesses have supported the version adopted by them before the police, which was available at the time of the rejection of their previous application, then no discretion can be exercised in their favour. In the instant case, the allegation against the appellant is, that he fired a shot with the revolver at the deceased, which hit on the right leg of the deceased. When the bail application was rejected by the learned Chief Justice, at that time, this allegation was before the Court in the shape of the statements of the witnesses under section 161, Cr.P.C. Now the question arises that whether after the recording of the evidence of the four P.Ws., some new thing has been brought on the record from the statements of the witnesses. I have gone through the statements of all the witnesses and they have categorically stated, that the appellant fired with the revolver and his fire hit on the right leg of the deceased, rather the case of the prosecution has been strengthened from the evidence of the aforesaid witnesses. It cannot be said that any witness has supported the appellant or any witness has stated otherwise, but all the witnesses are in agreement that the appellant was present at the spot with the revolver and he used the revolver. He fired a shot from the revolver which hit on the right leg of the deceased, so by recording the statement of the aforesaid witnesses, no new change has been cropped up, nor any material contrary to the previous version has been brought on the record. As this contention of the learned counsel for the appellant is concerned, that Muhammad Sadiq P.W. In his statement deposed that the deceased also fired while running away, carries no substance, because what the learned counsel for the appellant wants is the deeper appreciation of the evidence, which is not permissible at the stage of bail. It is also notable that all the witnesses have stated that after receiving the fire-arm injuries, the deceased fell down and prima facie the medical report and the nature of the injuries also show that it was impossible for a man to run away after receiving such like injuries. I would also not like to comment, that whether instead of the word Maqsood, the Maqtool has been written. This matter pertains to the appreciation of the evidence and any finding on this point will cause the prejudice to the lower Court, so much deeper appreciation of evidence is not permissible at the stage of the bail. While deciding the bail application, the Court has to resort to the tentative sifting of the evidence as distinguishable from the elaborate sifting of the evidence. The Court, while considering the bail application has to take the tentative view of the evidence and the deeper appreciation of evidence is not permissible. But what the learned counsel for the appellant wants is the deeper appreciation of the evidence, while this Court will not embark upon the deeper appreciation of the evidence at the stage of the bail.
The allegation against the appellant is, that he caused the fire-arm injuries to the deceased. All the P.Ws. Whose statements have been recorded, have supported this allegation of the prosecution.
The accused was named in the promptly lodged F.I.R. And was attributed the specific role of causing the fire-arm injuries in conjunction with the other accused persons. Reasonable ground for believing that the accused was involved in a case falling within the prohibitory clause of section 497(1), Cr.P.C. Has been made out. As the next contention of the learned counsel for the appellant is concerned, that the report of the Fire-arm Expert pertaining to the allegedly recovered revolver from the accused is negative, carries no substance for the following reasons:--
10. The allegedly recovered revolver from the accused alongwith two live cartridges and three fired cartridges was sent to the Fire-arms Expert by the Superintendent of Police Rawalakot (Poonchh) on 12-9-1990, but when the parcel was opened by the Director Forensic Science Laboratory, Punjab, Lahore, he only found a revolver of .32 bore in the parcel. Upon which he wrote a letter to the S.P., Rawalakot that he only found the revolver from the parcel, upon which an inquiry is being conducted by the police, but later on it was written by the police to the Fire-arms Expert, that the inquiry regarding the misappropriation of the empty cartridges and 3 live cartridges is being conducted against the concerned police official, so he was requested that the result of the revolver about its working condition may please be sent for. The result was given by the Fire-arme Expert, that the revolver .32 bore in question is in working order in its present condition, it cannot be said that the report of the Fire-arms Expert is negative, because only the revolver was sent to the Fire- arms Expert and he reported that the revolver is in working order. The appellant cannot be benefited for the misappropriation committed by any police official, and nothing will be said about it because an inquiry is being conducted by the police officials and any finding by this Court at this stage will cause a prejudice to the inquiry officers, so this argument of the learned counsel for the appellant is without any substance. As this contention of the learned counsel for the appellant is concerned, that the cause of the death of the deceased is not the injuries attributed to the appellant, this argument has already been considered while deciding the previous bail application, but even otherwise, the appellant who was present at the spot with the revolver and he used the revolver and caused injuries with the fire weapon, it cannot be said that he was having no intention to commit the murder. He is equally liable as the accused causing the fatal injuries. Prima facie, there are reasonable grounds to connect the accused with the offence punishable with the death or imprisonment for life, thus, no question of further inquiry is involved in the present case. As the case-law referred by the learned counsel for the appellant is concerned, in report Javed Akhtar v.
The State the bail was allowed by the Supreme Court to Javed and Tariq, and the allegation against them was, that they caught hold of Muhammad Amar deceased, while Behram inflicted dagger injuries on his abdomen. In the present case, the appellant caused firearm injuries to the deceased, so the case is distinguishable. Even otherwise, in the instant case, all the P.Ws. Have supported the prosecution case to hilt. Reasonable grounds to believe that the accused has participated in the commission of the alleged offence are available. As the case-law referred by the learned counsel for the appellant is concerned, that is of no help because anything settled in a criminal decision, particularly in the order of bail application, must be understood and undertaken as has been held with reference to the facts of that particular case. There cannot be generalization upon the matter pertaining to the exercise of judicial discretion. Mechanically computerized equal treatment cannot be given to the cases of similar nature based on the different facts, while exercising the discretion, the Court has to keep the hawkish eyes on the facts of the case, and each case is to be decided in the light of its own facts.
11. As stated above, there are reasonable grounds to believe that the accused participated in the commission of the crime, and he has been connected with the offence punishable with death or imprisonment for life, thus the bail cannot be granted to him.
12. In the light of what has been discussed above, finding no force in this appeal, it is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.