' MUHAMMAD YUNUS SURAKHVI, J.-- This appeal, has been directed against a consolidated order recorded by the Shariat Court on May 30, 1995, whereby bail order passed in favour of respondents Nos.1 to 3 by District Criminal Court, Bag was confirmed, while accepting the appeal of respondent No,4, he was also extended the concession of bail and upholding the order, dated August 10, 1994, passed by the trial Court, the application filed by appellant-complainant for summoning respondent No,5 for facing the trial was dismissed, as being premature.
2. The prosecution case, as disclosed in the F.I.R., briefly stated, is that on March 13, 1994, at about 3- 30 p.m. Complainant, Sardar Muhammad Nazir Khan, along with Abdul Safoor, Sardar Akram Khan and Zubaid Khan was coming back from the house of Sardar Muhammad Akbar Khan son of Sher Afzal Khan after "Fathia Khwani" at the sad demise of his relative and when they reached at a place known as Dheriwala, on Ijaz Khan and Mst. Zeenat Begum also joined them. All these persons were passing through the land of Sher Afzal Khan when they saw Muhammad Ashraf Khan son of Fayyaz Khan armed with Kalashnikov, Tariq son of Ashraf Khan with .12 bore gun, Naqi Muhammad Khan son of Fayyaz Khan with .12 bore gun, Shaveed carrying a hatchet and Zahoor with a stick in his hand who were waylaid. On seeing the complainant and his companions the accused shouted Lalkara that no one out of the complainant party would be allowed to go alive. The accused in prosecution of the common object launched an attack on the complainant party with the intention to do away with their lives. Out of the above accused persons, Muhammad Ashraf Khan, fired from his Kalashnikov which hit the mouth of Zubaid who fell down on the ground, Tariq accused fired at Abdul Safoor who sustained injuries on account of this firing. Naqi Muhammad Khan injured Ijaz Khan with his gun. Waqar fired at Zeenat Begum who also received injuries. The accused party continued indiscriminate firing. It is alleged that the complainant by laying on the ground saved himself. He rushed to the house of Shaukat Hayat Khan and raised hue and cry, upon which his brother Sohail Ahmad Khan, Aftab Ahmad Khan, Pervaiz, Raees Khan and Waseem Sohail Khan were attracted. When they reached in the land of Shaukat Hayat Khan they found Maroof Khan, accused, Riaz Khan, Faiz-ur-Rehman alias Arshad, Ashraf alias Kala and Mehboob-ur-Rehman sitting armed in the way. Muhammad Maroof Khan fired with his klashnikov and injured Sohail Ahmad the brother of the complainant, on the left side of his shoulder. As a result of this injury Sohail -Ahmad fell down. Faiz-ur-Rehman alias Arshad fired at Aftab Ahmad and injured his bother arms. Raees Khan, Pervaiz Khan and Waseem Sohail witnessed this occurrence. Later on they removed the injured persons from the place of incident and wanted to take them to the house of Shaukat Hayat Khan but in the way Sohail Ahmad succumbed to the injuries. These witnesses later on told the complainant that on account of their noise at the time of firing at this place of occurrence Navid and Shadab were coming to their rescue and when they reached near the old mosque they saw Razaq, Javid and Sohrab sitting armed in the way. Razaq fired with his .12 bore gun and injured Navid Khan. These accused continued firing for about half an hour. They were raising Lalkara that they will take revenge from the complainant. The motive of incident is stated to be a compensation amount of a common land received by accused Naqi Muhammad Khan by fraudulent means about which the case was pending between the parties in the Civil Court. On account of the previous enmity it is stated in the F.I.R. That the accused party has done away with the life of Sohail Ahmad and injured several persons.
3. On the basis of the report lodged by the first informant, F.I.R. No,14, dated March, 13, 1994, was registered against 14 accused persons for committing offences under section 5/15 Islamic Penal Laws (Enforcement) Act, 1974, read with sections 307, 147, 148; 149 and 341, Penal Code at Police Station, Dhirkot, District Bagh. The police after necessary investigation placed Riaz Ahmad Khan accused in Column No,2 giving him the benefit of section 169, Cr.P.C. While the rest of 13 accused were challenged before District Criminal Court, Bagh for their trial in the aforesaid offences. The accused moved an application seeking their release on bail before the District Criminal Court, Bagh, which was allowed to Faiz-ur-Rehman alias Arshad, Javid Iqbal, Irfan alias Shaveed and Zahoor Ahmad but was declined to one Abdul Razzaq Khan and 8 others accused (not before us) vide its order, dated July, 17, 1994. On a revision petition filed by complainant-appellant herein, concession of bail allowed to Faiz-ur-Rehman, accused was withdrawn and instead one Abdul Razzaq Khan, accused was extended the concession of bail; however, the revision petition filed by the appellant-complainant against the order of trial Court dismissing the application for summoning accused respondent No,5, Riaz Ahmad Khan was dismissed vide the impugned order of Shariat Court, dated May 30, 1995. Hence this appeal.
4. Raja Sher Muhammad Khan, the learned counsel for the appellant-complainant, vehemently contended that the impugned order of Shariat Court in so far as it related to respondents Nos.1 to 3 whose bail was granted by the, District Court of Criminal Jurisdiction Bagh and its confirmation by Shariat Court is patently illegal and bad in law for the simple reason that these accused have been attributed a specific role in the commission of the offence. According to the learned counsel, at the time of occurrence Javed Iqbal respondent No,1 was armed with 7 m.m., unlicensed rifle, with which he fired at Moheed Khan P.W. Who escaped miraculously. Irfan alias Shaved was armed with a hatchet in his hand and he also waylaid the appellant-complainant party before the commission of offence and also shouted Lalkara. Similarly Zahoor Ahmad, respondent No,3, carried a Danda in his hand. He also waylaid the complainant party and shouted Lalkara towards the commission of offence. The learned counsel maintained that respondents Nos.1 to 3 actively participated in the commission of offence and their bail plea was accepted by the trial Court' in violation of the settled principles of law governing the subject. The illegality, thus, committed by trial Court in allowing the' concession of bail to these accused was repeated by the Shariat Court in dismissing the revision petition filed by the appellant-complainant. As regards Abdul Razzaq Khan, respondent No,4, the learned counsel submitted with vehemence that this accused was armed with a deadly weapon like .12 bore gun and injured Shadab P.W. With his gun. Abdul Razzaq Khan also shared .The act of waylaying and shouting Lalkara by the rest of the accused. The learned counsel argued that his bail plea was rightly rejected by the trial Court in, view of the participation of the accused in the commission of the offence but the Shariat Court vide its impugned order released him on bail by ignoring the fundamental principles governing the bail matters. On the aforesaid premises it was strenuously argued by the learned -counsel for the appellant-complainant that the concession of bail granted to respondents 1 to 4 may be withdrawn and the impugned order may be set aside.
5. With regard to respondent No,5, namely. Riaz Ahmad Khan, the learned counsel for the appellant-complainant, pressed into service the submission that he was given the benefit of section 169, Cr.P.C. Without any cogent or justifiable legal reason. According to the learned counsel respondent No,5 had an active hand in the commission of offence. The whole planning and programmer for the commission of murder took place in his house and in fact he was a mister mind behind the unfortunate episode, but being in police service he exerted his influence on the Investigating Agency and got the undue benefit of section 169, Cr.P.C. According to the learned counsel all the injured witnesses and other eye-witnesses are unanimous on the point that he had been supplying ammunition to the accused for the commission of the offence. The learned counsel maintained that it was enjoined upon the trial Court to look into the relevant material and to come to the conclusion as to whether this accused should be summoned for facing the trial or not but the trial Court instead of applying its judicial mind agreed with the opinion recorded by Investigating Agency and dismissed the application of appellant-complainant for summoning the accused-respondent for facing the trial without any legal basis. In this view of the matter the learned counsel argued that the trial Court committed a grave illegality in rejecting the application filed by the appellant-complainant and the Sharia Court by maintaining the order of trial Court also fell in the same error. The learned counsel for the appellant-applicant in support of his contentions relied on Waqarul Haq alias Nithoo and another v. The State 1988 SCMR 1428 and Waqar Ilias and another v. The State PLD 1993 Quetta 49.
6. Ch. Muhammad Yousaf, the learned Advocate-General, fully supported and approved the contentions raised by the learned counsel for the appellant.
7. On the other hand Mr. Ghulam Mustafa Mughal the learned counsel, appearing on behalf of respondents, repudiated the contentions raised by the learned counsel for the appellant- complainant. His contention precisely is that the respondents Nos.1 to 3 were released on bail by the trial Court in view of the insignificant role ascribed to them. The weapons alleged to have been carried by these accused were not used in the commission of the offence. According to the learned counsel for respondents, the trial Court in its best w sdom exercised its discretion in favour of these respondents and the Sha iat Court also committed no illegality by upholding the view recorded by the trial Court. With regard to respondent No,4, Mr. Ghulam Mustafa Mughal, contended that though he was alleged to have been carrying the .12 bore gun and used the same and claimed to have injured Shadab P.W. But nevertheless the ocular version of the prosecution stands falsified by the medical evidence. The doctor who examined Shadab P.W., according to the learned counsel for the respondents, found no injury on the person of Shadab P.W. As alleged by the prosecution witnesses. The learned counsel maintained that the Shariat Court rightly exercised its discretion in giving him the concession of bail and the discretion exercised in a legal fashion cannot be disturbed by this Court unless it is found to be perverse or arbitrary. As regards respondent No, 5, the learned counsel maintained that the Investigating Agency placed him in column No, 2, giving him the benefit of section 169, Cr.P.C. And the trial Court agreeing with the report of the Investigating Officer did not deem it proper to summon this accused for facing the trial. The learned counsel also contended that no prejudice has been caused to the prosecution by rejecting the application for summoning respondent No,5 as the matter has been left open by the trial Court.
It was observed by the trial Court that after recording the evidence of P.Ws. 1 and 2, in the light of the material brought on record, it will again exercise its discretion.
8. We have heard the respective contentions of the learned counsel for the parties and perused the record made available with care. Accused respondents Javed Irbil, Irfan alias Shaved and Zahoor Ahmad Khan were allowed the concession of bail by the trial Court and the order of their release on bail was confirmed even by Sharia Court. Javed Iqbal according to the prosecution version was armed with 7 m.m. Rifle and he is said to have fired with the same at Moheed P.W., who luckily escaped. Irfan alias Shaved and Zahoor Ahmad Khan were armed with hatchet and Danda respectively and they were attributed to have waylaid and raised Ankara. The weapons which they were holding were not used by them in the incident. The District Criminal Court on account of their role, allowed them the concession of bail. Abdul Razzaq Khan, respondent No,4 who was refused bail by the trial Court is stated to have caused fire-arm injury to Shadab was examined by the doctor who did not find any injury on his person. The Sharia Court, on account of patent conflict between the ocular, version and the medical evidence, vide the impugned order, granted concession of bail to the said respondent as well. In the estimation of the Sharia Court this accused, though, according to the prosecution witnesses, indulged in firing and allegedly caused injuries to Shade but the same did not find support from the medical report.. In our view the discretion exercised, both by the trial Court and the Sharia Court, in releasing accused respondents 1 to 3 on bail does not suffer from any valid legal reason or infirmity. Similarly the discretion exercised by Sharia Court in favor of respondent No,4, namely Abdtil Razzaq Khan, allowing him the concession of bail, cannot be said to be either perverse or arbitrary. The presence of this accused along with accused-respondents and his participation in the offence requires further inquiry. A valid legal discretion exercised by the trial Court or 'the Sharia Court cannot be normally disturbed by this Court. It is always the perversity or the arbitrariness of the discretion that calls for indulgence by this Court. The circumstances warranting the cancellation of bail are some what different than the circumstances for granting the bail; so the appeal relating to the cancellation of bail of respondents Nos.1 to 4 having no substance, stands dismissed.
9. The contention raised by the learned counsel for the appellant, for setting aside the 'order of District Criminal Court, dated August 10, 1994, and its confirmation by the Sharia Court to extent it related to the rejection of application filed by the appellant for summoning accused- respondent,No,5 (Riaz Ahmad Khan) for facing the trial, in our view has a lot of substance. The learned trial Court rejected the application filed by the appellant simply on the ground that it was premature and after recording the evidence of P.Ws. 1 and 2, the question of summoning the said accused-respondent would be considered. This view of the trial Court was affirmed by the Sharia Court. In our considered view this approach to the proposition by the trial Court and the Shariat Court is wholly incorrect. The Investigating Agency, no doubt, is empowered to place any of the accused in column No,2 of the challan, on the basis of material collected by it, but at the same time the requirement of law is that material should be sufficient enough for giving the benefit of section 169, Cr.P.C. To an accused. However, the Courts of law are duty bound to apply their own judicial mind and come to a definite conclusion as to whether an accused placed in column No,2 by the police should be summoned or not for facing the trial. The Courts are never bound by the ipse dixit of the Police. From the material available on record the Courts are always required to form their independent opinion by proper application of the judicial mind. The practice to follow the suggestions made by the police and to concur with their view blindly is always undesired. It was never the requirement of law that the learned District Criminal Court should have considered the question of summoning the accused-respondent or otherwise after recording the evidence of P.Ws.1 and 2. The order recorded by the trial Court as well as by the Shariat Court suggests that they simply followed the conclusion arrived at by the police, which as said earlier, is not at all in consonance with the law. In the case reported as Waqarul Haq alias Nithoo and another v. The State 1988 SCMR 1428, it was opined at page No,1429 that "the contention is that first the evidence should be recorded and if in the light of such evidence the trial Court deems it proper to summon them only then they may be summoned. The, point involved in this case is that three persons have been accused of the offence out. Of which one Muhammad Rafiq was placed in column No,3 whereas the present petitioners were placed in column No,2. The accused person whose name appears in column No,2 of the challah dan be summoned by the trial Court directly to stand the trial and it is not necessary that first some evidence should be recorded. In the present case the challah against the petitioners had not been cancelled by placing them in column No,2. It only means that according to the police investigation they were found innocent, and, therefore, they were discharged under section 169 of the Cr.P.C. However, it does not mean that they could not be summoned to stand trial by the Sessions Court".
10.. In the case reported as Waqar Ilias and another v. The State PLD 1993 Quetta 49, it was observed "the Court is not bound to follow the opinion of the Investigating Officer in determining, whether sufficient evidence is available against the accused person for the purpose of sending him to face the trial or not. Such opinion can independently be formed on the basis of record so made available before the trial Judge and he is always competent to issue process against those persons, even who have not been challenged, because the criminal cases stand registered against them and the F.I.Rs, as well as challahs to their extent have not been cancelled".
11. Respectfully following the principle laid down in the above judicial pronouncements we are of the opinion that the learned trial Court as well as the Shariat C )urt by rejecting the application filed by appellant for summoning accused-respondent No,5 acted solely on the opinion of the police.
Instead of acting upon the opinion of police with regard to the innocence or absence of the accused at the time of occurrence, they should have considered the F.I.R., statements made by the eye-witnesses under section 161 of the Cr.P.C., the plea raised by accused Riaz Ahmad Khan during the investigation and the evidence produced by him in defense and the opinion of the police.
12. As a result of the above discussion the order recorded by the District Criminal Court on August 10, 1994, and its confirmation by the Shariat Court vide its impugned order, dated May 30, 1995, to the extent of rejection of the application for summoning accused respondent No,5 is set aside and the case is sent back to the learned District Criminal Court, Bagh with the direction that it will decide the application of the appellant for summoning Riaz Ahmad Khan, respondent No,5, as an accused afresh after pursuing the .F.I.R., the statements made by eye-witnesses under section 161, Cr.P.C., the defence evidence adduced by Riaz Ahmad Khan, respondent No,5, during the investigation and the police opinion with regard to his innocent. The appeal, thus, partly, to the extent indicated above stands accepted.