' MUHAMMAD YOUNAS SURAKHVI, J.---The above-titled appeal is directed against a consolidated order of the Shariat Court, dated July 20, 1994, whereby a learned Single Judge while accepting the Criminal Revision Petition No,26 of 1993, filed by Muhammad Ashraf respondent No,1, herein, released him on bail, and dismissed the Revision Petition No,20 of 1993 filed by Faiz Muhammad, appellant herein, for the cancellation of bail granted to Muhammad Zaheer and others, respondents Nos.2 to 8 herein.
2. The precise facts of the case as disclosed by Faiz Muhammad Khan, appellant herein, in a written application, dated February 9, 1993 addressed to S.P., Kotli and submitted before him on February 10, 1993 are that at about 3-30 p.m. Zakar and Sajad P.Ws. Were taking tea in a hotel at Thakyala Pothi Bazar. On seeing them accused Muhammad Afzal, Abdul Qayyum, Muhammad Ashraf, Muhammad Zaheer, Muhammad Sadiq, Muhammad Sarwar Khan, Muhammad Liaqat and Muhammad Haroon residents of Karela Mujahan assembled outside the hotel and started conspiring with one another. When Zakar and Sajad came out of hotel they were attacked by accused Muhammad Afzal and others who started beating them. Muhammad Latif, Muhammad Taj and others tried to rescue them. In the meantime from the accused side one Muhammad Zaheer s/o Sadiq threw brick which injured Muhammad Latif. On the alarm raised that Muhammad Latif had been killed by Muhammad Afzal and other accused persons, in order to ascertain the correctness or otherwise of the allegation, Muhammad Bashir s/o complainant, Naib Sub.
Muhammad Sarwar Khan, Muhammad Altaf Khan, Muhammad Rahim Dad Khan and the complainant rushed towards the scene of occurrence. They were about 10-15 yards beyond the place of occurrence that the accused party blocked their way in furtherance of their common object. Muhammad Afzal caught hold of Muhammad Bashir and Muhammad Ashraf, respondent No,1, herein, from the back side of hatchet hit on the head of Muhammad Bashir, the son of complainant, who fell on the ground and became unconscious. The complainant party tried to carry him from the place of incident but accused Muhammad Haroon pelted stones from the roof of his home; and hit the complainant on his chest and arms. The incident as claimed by the complainant took place at the behest of Muhammad Naeem Khan M.L.A. And Muhammad Nawaz, Chairman Local Council sons of Sardar Fateh Muhammad Khan. According to the complainant the motive behind the occurrence was the previous enmity existing between the parties on account of local bodies elections. Both Muhammad Bashir and Muhammad Latif in injured condition were taken to Nakyal Hospital, therefrom referred to District Hospital, Kotli and ultimately to PIMS at Islamabad. Muhammad Bashir succumbed to the injuries on 10th February, 1993. In the report it was mentioned that local police was under the influence of M.L.A. And Chairman, Local Council as such the complainant was compelled to move this report before the S.P. On 10th February, 1993, who sent the same to S.H.O., Police Station Nakyal to proceed in accordance with law. On the basis of this report a case under sections 307, 341, 147/148 and 149, A.P.C. Read with section 5/15, I.P.L. Was registered against Muhammad Ashraf and other accused-respondents herein.
3. Prior to the above report another report of the same incident was lodged by Muhammad Ashraf accused-respondent No,1, herein, at Police Station, Thakyala on the day of occurrence i.e, 9th February, 1993 at 4-15 p.m. The brief gist of the same as translated into English is narrated below:-- - "That due to last local bodies elections serious animosity was subsisting between him and the complainant party. On February 9, 1993, at about 3-40 p.m. He and his father Muhammad Sadiq were present at their shops at Pothigala Bazar that Muhammad Zakar, Sajid, Shakeel Ahmed, Adalat, Faiz Muhammad, Muhammad Bashir, Muhammad Altaf, Rahim Dad, Mushtaq, Muhammad Shahid, Muhammad Basharat and Muhammad Tariq r/o Karela Majahan by forming unlawful assembly with common intention and with criminal intent attacked him. Faiz Muhammad with a brick injured his left thumb and injured his forehead with a stick. Thereafter, all the accused started pelting stones. Tariq accused caused brick injuries on the shoulder of his father Muhammad Sadiq.
Muhammad Latif and Fazal Dad who were seen on the adjoining shop were also attacked by the accused. Adalat accused pelted stones on the head of Muhammad Latif and injured him.
Muhammad Shakeel accused caused injury with a stone on the left side of the head of Fazal Dad.
During exchange of pelting stones from the accused side Muhammad Bashir D.P.E. And Muhammad Zakar were also injured. The occurrence besides him was witnessed by Haji Muhammad Afzal, Mehmood Khan, Muhammad Latif and otheRs,"
4. On the basis of this report a counter-case under sections 147/148 and 149, A.P.C. Read with section 15, I.P.L. Was registered against 12 accused persons, from the complainant side, as named above.
5. It is relevant to point it out that on the basis of two cross-reports two Investigating Officers conducted investigation and found both the reports to be correct and true. Ultimately both the parties were sent to face their respective trials in the trial Court.
6. On the basis of report lodged by Faiz Muhammad, the appellant herein, accused Muhammad Ashraf and others have been sent to face their trial in a murder case before the District Court of Criminal Jurisdiction Kotli, through challan filed before the trial Court on June 27, 1993. In the case the statements of the accused have been recorded under section 242, Cr.P.C. They have denied their guilt. So far the evidence of two prosecution witnesses have been recorded. Out of the accused persons Sarwar Khan, Abdul Qayyum, Sadiq Khan and Haroonur Rashid moved their application for pre-arrest bail before the District Court of Criminal Jurisdiction, Kotli on February 23, 1993. It was allowed to them subject to confirmation. However, Muhammad Ashraf, Muhammad Zaheer. Liaqat and Muhammad Afzal moved their applications after arrest on June 25, 1993. Both the applications were decided through a single order, dated September 21, 1993 whereby the bail pre-arrest allowed in favour of abovementioned accused persons was confirmed, whereas the application moved by accused Muhammad Ashraf and others after their arrest was allowed to the extent of other accused persons except Muhammad Ashraf who was refused the concession of bail.
7. The order dated September 21, 1993, passed by the District Court of Criminal Jurisdiction, Kotli was assailed before the Shariat Court through two separate revision petitions, one filed by Muhammad Ashraf accused for his release on bail, and the other by Faiz Muhammad complainant for the cancellation of bail of the other accused, which vide its impugned order, dated July 20, 1994, allowed the revision petition filed by Muhammad Ashraf accused-respondent No,1, herein, and disallowed the revision filed by Faiz Muhammad, complainant, the appellant, herein, for cancellation of bail of rest of the accused persons. Hence this appeal for cancellation of bail of all the accused respondents, herein.
8. Ch. Muhammad Sharif Tariq, the learned counsel for the complainant Faiz Muhammad, appellant herein, vehemently contended that the occurrence took place in a broad daylight. All the accused are named in the F.I.R. And a definite role has been ascribed to each accused. All the accused persons formed unlawful assembly and in furtherance of their common intention inflicted injuries on the members of the complainant party. The learned counsel maintained that Muhammad Ashraf and Muhammad Zaheer accused are principal accused in the case who armed with a hatchet and bricks caused injuries on the person of Muhammad Bashir and Muhammad Latif who ultimately succumbed to the injuries and all other accused shared the common intention of Muhammad Ashraf and Muhammad Zaheer. The learned counsel pressed into service the submission that in presence of injured P.Ws., prima fade, all the accused are connected with the commission of offences alleged to have been committed by them. The learned counsel strenuously argued that the recoveries of crime weapons at the instance of Muhammad Ashraf and Muhammad Zaheer accused, the post-mortem reports of deceased Muhammad Bashir and Muhammad Latif and the medico-legal reports, are in the nature of corroborative evidence. The learned counsel emphasised that the delay in the F.I.R., if any, has sufficiently been explained by the prosecution. The learned counsel contended that the discretion exercised by the District Criminal Court in allowing bail to Muhammad Zaheer and other accused persons and by the Shariat Court to grant the concession of bail to Muhammad Ashraf accused is perverse, arbitrary and violative of law and based on superficial and flimsy grounds. The learned counsel prayed for cancellation of bail of all the accused-respondents.
9. On the other hand, Ch.Muhammad Azam Khan the learned counsel for the respondents, argued that there are two versions of the incident. The counter-cases have been registered and have been challaned in the trial Court. Police have found both the versions to be correct during the investigation. The place of occurrence in both the versions is the same i.e, Pothigala Bazar where the accused respondents were running their shops. The complainant party had no business to go there and to initiate attack on the accused in their shops. The - learned counsel maintained that affair is not one-sided, the complainant party has suppressed the injuries caused to the accused persons by the complainant party through pelting stones and initiating the attack. In the estimation of the learned counsel, it was the complainant party who started the aggression and injured three persons from the accused side one of them being seriously injured. The learned counsel for the respondents submitted that from the prosecution evidence itself it stands established that the occurrence took place in bazar and the complainant party picked up the quarrel and a free fight took place between the parties. The learned counsel maintained that the F.I.R. Of the incident was promptly lodged by Muhammad Ashraf accused respondent and the incident precisely took place in the manner disclosed in the F.I.R. Lodged by Muhammad Ashraf respondent. The counter-F.I.R. Filed by Faiz Muhammad complainant, appellant herein, is concocted and no sufficient explanation has been given for explaining the inordinate delay. The discretion has rightly been exercised by the trial Court as well as by the Shariat Court, submitted the learned counsel, which calls for no interference by this Court. The learned counsel strenuously argued that there was nothing on record to corroborate the version of the prosecution. He emphasized that the recovery of crime weapon is fake and not supportive to the prosecution version. Similarly the post-mortem reports do not corroborate the manner of occurrence as alleged by the prosecution.
10. The learned Additional Advocate-General Mr.Muhammad Akram Mughal, fully supported and owned the contentions raised by the learned counsel for the complainant/appellant, herein.
11. We have heard the points canvassed by the learned counsel for the parties and perused the record made available with care.
12. In our considered view there are some important circumstances and salient features of the instant case which have great bearing on the disposal of this appeal. Those are being summarized as below:---
(i) There are two versions of incident. Two counter F.I.Rs, have been lodged, one was lodged by the complainant appellant, herein, whereas the other was filed promptly by Muhammad Ashraf accused-respondent herein, on the day of occurrence. Both the versions were found correct and true during the investigation and both the parties were forwarded to face their trial before the trial Court. Each party claims the attack to have been initiated from the other side. Members of both the parties were found to have been injured. In the F.I.R. Lodged by the appellant herein, the injuries caused to accused respondents have been suppressed whereas in the F.I.R. Lodged by respondent No,1, herein, it has been disclosed that during the fight members of the complainant party namely Muhammad Bashir, Muhammad Latif and Muhammad Zakar were injured. At the time of trial both the versions are to be kept in juxtaposition and their truth or otherwise is to be ascertained. It is yet to be determined as to which party was the aggressor.
From the perusal of material collected by the Investigating Agencies, statements recorded under section 161, Cr.P.C., the site plan and the explanatory notes, it transpires that the place of occurrence is only one and that too is Pothi Bazar wherein the accused-respondents run their shops. The members of the complainant party have no shops at the place of occurrence. This aspect of the matter, prima facie, lends support to the version advanced from the accused side.
(iii) On 1st of March 1993, a prosecution witness shown in the calendar of challan, as an eye- witness, namely, Muhammad Taj, moved an application before the S.D.M., Fatehpur Thakiala under section 107, Cr.P.C. Against Muhammad Iqbal, Tariq, Nasir and Iftikhar that these accused persons are threatening him with dire consequences and are compelling him to support the prosecution version that Muhammad Latif was killed by the stones pelted by Muhammad Zaheer accused- respondent, whereas he was not sure that who pelted the stone which hit Muhammad Latif. He has further disclosed that on the day of incident he along with his brother Latif was present at Pothigala Bazar when hot-words were exchanged by Muhammad Zakar and Muhammad Sajjad on one side and Muhammad Ashraf on the other side. According to Muhammad Taj he and his brother Latif deceased told Sajjad that they should not take quarrel with Ashraf rather should go away. In the meantime according to this witness the complainant party came there and attacked Muhammad Sadiq, Muhammad Ashraf and Muhammad Qayyum sons of Muhammad Sadiq and Muhammad Afzal son of Khan Muhammad and beat them with fists and kicks. In this incident Muhammad Latif was injured by the stone of some person. Arm of Muhammad Sadiq was broken. Fazal Dad was also injured. According to this witness he took Muhammad Latif first to District Hospital, Kotli and then to Rawalpindi where his brother died. As a matter of fact this witness is closely related to Muhammad Latif deceased. He happened to be the son of Latif s real uncle and both are first cousins. The name of this witness appears in the postmortem report of Muhammad Latif deceased and is mentioned there as his brother. The statement of this witness, prima facie, suggests that the initial quarrel was picked up by the members of the complainant party and they initiated the attack.
(iv) In the present case two affidavits were filed before the trial Court by P.Ws. Talib Hussain and Inayat Ullah. Talib Hussain who is cobbler by profession has stated on oath that in his presence the hatchet was not recovered on 19th February, 1993 at the instance of Muhammad Ashraf accused.
He also denied that this hatchet belonged to him, suffice it to say that the case of the prosecution is to the effect that hatchet belonging to Talib Hussain was used by Muhammad Ashraf accused for the commission of offence. On the basis of affidavit filed by Talib Hussain, the recovery of crime weapon and its use in the commission of offence is prima facie falsified.
(v) The other affidavit has been filed by one Inayat Ullah who has also been mentioned as an eye- witness in the calendar of challan. This witness deposed on oath that in his presence neither Muhammad Afzal accused caught hold of Muhammad Bashir deceased nor Muhammad Ashraf accused inflicted injury with the back side of hatchet on the person of Muhammad Bashir deceased. The learned Judge in the Shariat Court held that during the course of arguments it was brought to the notice of the Court that this witness was real uncle of deceased Muhammad Bashir and real brother of complainant. The above said claim was neither repudiated in the memo. Of appeal, nor in the concise statement. Even no affidavit was filed by the learned counsel for the appellant or the appellant himself to controvert the above fact.
(vi) In this case a statement under section 161, Cr.P.C. Was recorded of one Muhammad Aslam Zauque, Assistant Professor, a prosecution witness, who stated that in fact the pelting of stones was started by Rahim Dad and others the members of the complainant party on Muhammad Ashraf accused and others, who also in turn pelted stones on complainant party. This witness goes on to state that one Sajjad from complainant party went and stood outside the shop of Sardar Muhammad Sadiq, the father of Muhammad Ashraf accused, who was asked by Muhammad Ashraf to go away and not to pick up a quarrel and then after sometime the stone pelting was started from complainant party. This witness totally contradicted the prosecution version. He further stated that Muhammad Bashir deceased was not carried from the place of occurrence by the complainant party rather he went on foot and was also talking. The statement of this witness finds support from the affidavit filed by Inayat Ullah.
(vii) From the statement made by Muhammad Taj, P.W., it becomes clear that stones were pelted during the incident by the parties on each other. One of the stones hit Muhammad Latif his first cousin on his head who ultimately died in the Hospital at Rawalpindi. Similarly the statement of Muhammad Aslam Zauque Assistant Professor a independent witness reveals that the quarrel was initiated from the prosecution side and stones were pelted initially by the members of the complainant party on accused persons who in turn also pelted stones. Thus, free fight took place between the parties resulting Death of two persons from the complainant side and injuring there persons from the accused party. Thus, it tilts from the circumstances that prima facie the attack was initiated from the complainant party or in other words there is a serious doubt as to which out of two parties is the aggressor and the matter requires further inquiry. The mere fact that during the course of free fight between the parties, the complainant party suffered a great loss as compared to accused persons does not bring the case out of the ambit of further inquiry.
(viii)Even if the prosecution version is presumed to be true there was no premeditation or pre- arrangement on the part of the accused persons. Had there been any intention to commit murder and murderous assault, the accused would not have been empty-handed. None of them was armed with any weapon or at least deadly weapon to share the object of any common intention.
The case of the prosecution itself is that hatchet was taken by accused Muhammad Ashraf lying in the fire wood outside the hotel. This shows the non-existence of any of the elements of intention.
The application of section 148/149, A.P.C. In the circumstances of the case needs serious consideration.
(ix) From the affidavit filed by Anayat Ullah catching hold of Muhammad Bashir by Muhammad Afzal accused also becomes doubtful or at least the occurrence did not take place in the manner as is alleged by the prosecution.
(x) The Doctor who performed autopsy on the dead body of Muhammad Bashir deceased in the post-mortem report in column of information furnished by the police mentioned:--- "By police docket this young man was injured due to quarrel between two parties with bricks and stones."
' The following injuries were found on the dead body of deceased:---
(i) 3 x 2 c.m. Red coloured bruise over left temporo-tarietal region of scalp.
(ii) 1/2 x 1/2 c.m. Red coloured bruise over right side of nose.
(iii) Two red coloured bruises in front and below left ear, of sizes 01 x 01 c.m. And 1/2 x 1/2 c.m.
Respectively.
According to the doctor injury No,1 proved fatal. The above-noted injury is possible to have been caused by pelting stones or bricks.
' The discretion exercised by the Shariat Court in giving the concession of bail to Muhammad Ashraf respondent and in favour of other respondents by the District Criminal Court, Kotli is neither perverse, arbitrary nor capricious, nor such which could not have been exercised at all, keeping in view the facts and circumstances of the case. On the other hand the discretion exercised is well- reasoned and not violative of law. This Court normally does not interfere in the judicial exercise of the discretion.
(xii) So far respondents Nos.4 to 8 are concerned the role ascribed to them is not of serious nature and the concession of bail allowed to them also suffers from no legal defect.
13. The grant or refusal of bail in our considered view is not a licence for the accused persons to be acquitted ultimately, after trial, in the case, nor a permit, for conviction, of the accused where the bail is refused. If the prosecution proves its case during the trial the accused person has to face the consequences.
In the light of what has been stated above finding no force in this appeal it is hereby dismissed. The concession of bail given to the accused-respondents stands intact. Any of our observation in this judgment is purely for D a limited purpose of bail and should not, one way, or the other, prejudice, either the case of the prosecution, or the defence.