MUHAMMAD YUNUS SURAKHVI, J.---This appeal, has been directed against an order passed by the Shariat Court of Azad Jammu and Kashmir on April 18, 1996, whereby the concession of. Bail was allowed to respondent No. l herein.
2. The precise facts, forming the background of the present appeal, are that on the report lodged by the appellant herein, at Police Station City Mirpur, a case under section 307/34, Penal Code read with section 5/15 of the Islamic Penal Laws (Enforcement) Act, 1974, was registered against respondent No. l and two other accused persons. The prosecution case, as disclosed in the F.I.R., is that prior to the occurrence the first informant and his brother Sajid reprimanded the accused persons not to loiter in the Mohallah on account of which hot. Words were exchanged. A week before the occurrence, the accused had given a beating to the first informant and warned that he and his brother had restrained them from loitering in the Mohallah as such they would not leave them alive. On account of the aforesaid-grudge, nourished by the accused, on June 18, 1995, at 6- 30 p.m., the complainant alongwith his brother Sajid, Muhammad Riaz and Eitzaz after playing the game in the ground of Sub-Sector C-4, came on the road wherein Nawaz son of Mir Muhammad, Sajjad son of Ch. Abdul Rashid and Asif alias Bashiree, coming from Fazai Chowk, came across them and tried to pick up the quarrel but the complainant and his companions avoided it by remaining silent. Thereafter the accused persons went towards Sanghot. After some time the complainant alongwith his companions was going towards Snooker Club, wherein they saw accused Sajjad, Nawaz and Asif, respondent No. l herein, standing there. Sajjad, accused was armed with dagger while Nawaz and respondent No. l were armed with iron fists. When the complainant and his companions were passing from near them the accused opened the attack.
Nawaz and Asif caught hold of Sajid from his arms and Sajjad, accused inflicted the injuries with the dagger on his chest. On account of said injuries Sajid fell down then Muhammad Nawaz and Asif, respondent caught hold of complainant and Muhammad Riaz. Sajjad, accused also inflicted injuries with his dagger on the complainant and Muhammad Riaz on the left thigh and right arm respectively. The accused Nawaz and Asif inflicted injuries with their iron fists to complainant and Muhammad Riaz. Sajid in an injured condition was taken to the hospital, but he succumbed to the injuries.
3. After necessary investigation by the police, all the three accused were found involved in the case and were forwarded to face their trial in the District Criminal Court, Mirpur.
4. Respondent No. l and Muhammad Nawaz accused, moved their application for bail in the District Criminal Court which was dismissed vide its order dated 31st of January, 1996. Feeling aggrieved with the aforesaid order, a revision petition was preferred in the Shariat Court which was accepted vide its order dated March 26, 1996, and the concession of bail was extended to Muhammad Nawaz and Muhammad Asif accused-respondent herein, which is a subject of appeal in so far accused Muhammad Asif alias Bashiree is concerned It is claimed by the prosecution that it had entered into compromise with Muhammad Nawaz accused.
5. Arguing the case on behalf of appellant-complainant, Ch. Muhammad Azam Khan, the learned counsel, submitted with vehemence that respondent and Muhammad Nawaz accused caught hold of deceased from his arms and Sajjad-- accused inflicted injuries with his dagger on the chest of the deceased According to the learned counsel the respondent while catching hold of deceased facilitated the murder. The respondent and the other accused Muhammad Nawaz not only caught hold of the deceased but they also inflicted injuries on the person of complainant and Muhammad Riaz with their iron fists with attached dagger. In the estimation of the learned counsel for the appellant, the trial Court rightly disallowed the concession of bail to the accused but the Shariat Court committed a grave legal error to extend the concession of bail to respondent No. l herein. The learned counsel maintained that the discretion exercised by the Shariat Court was not in conformity with the rules governing the bail matters. The learned counsel for the appellant, in support of his submissions cited reported cases Mst. Berkat Bibi v. Gulzar and another (1979 SCM R 65) and Muhammad Ishaque v. Sajawal Khan and others (NLR 1981 Criminal 213).
6. Ch. Muhammad Mushtaq, the learned Additional Advocate-General fully supported and owned the arguments advanced by the learned counsel for the appellant.
7. Controverting the arguments of the learned counsel for the appellant, Mr. Hussain Mazhar Kalim, the learned counsel for respondent strenuously argued that according to the prosecution version no overt act is attributed to the respondent qua the deceased. The only allegation against respondent is that he alongwith Muhammad Nawaz accused caught hold of deceased and Sajjad accused inflicted injuries on the person of deceased with his dagger. The learned counsel pointed out even the fact of catching hold of deceased by the respondent is doubtful from the evidence of the prosecution. The learned counsel urged that the prosecution has suppressed the injury caused on the person of accused Sajjad which according to medico-legal report is caused by a sharp weapon. Thus the prosecution story, according to the learned counsel, did not take place in manner as it is alleged by the prosecution. The learned counsel emphasised that despite the fact that a short while before the occurrence of murder, the accused persons and the complainant party came in front of each other near the ground of Sub---Sector C-4 but the accused did not initiate any attack. The learned counsel submitted that after that there seems to be no justification on the part of the complainant party to go towards the place near the Snooker Club where the accused had gone. The complainant party, it appears from the record, followed the accused to the place where the actual incident of murder took place. The learned counsel strenuously contended that in the incident accused Sajjad was injured by a sharp weapon and the medico-legal report and injury report of the accused are supportive to the aforesaid fact in this view of the matter, the learned counsel maintained that the order passed by the Shariat Court was perfectly valid and the discretion was exercised in a judicial way in extending the concession of bail to the accused respondent.
8. After taking into consideration the respective contentions of the learned counsel for the parties, it may be stated that the Shariat Court has extended the concession of bail to accused-respondent mainly on the ground that the respondent did not cause any injury to the deceased. Both respondent and Nawaz accused were alleged to have caused injuries to the complainant and Muhammad Riaz with their iron fists but the same are prima facie not supported by the medico- legal reports as the injuries on the person of Muhammad Riaz and complainant are said to have been caused by a sharp weapon. Without entering into detailed merits of the case one of the prosecution witnesses, namely Shafique Ansari, has nowhere stated in his statement under section 161, Cr.P.C. That the respondent caught hold of deceased. So the participation of the accused- respondent with Muhammad Nawaz accused in the commission of offence by catching hold of deceased falls within the purview of further inquiry. It yet remains to be enquired as to whether the respondent in fact participated in the commission of offence in the manner as alleged by the prosecution. Another significant aspect of the case is that the principal accused, namely Sajjad, was also injured in the incident and his injury report and medico-legal report show that he was injured with a sharp-edged weapon. The prosecution witnesses nowhere explained the injury inflicted on the accused in their statements under section 161, Cr.P.C. Similarly the spectacles of the accused were also found in a broken condition at the time of incident. This aspect of the matter prima facie casts doubt on the origin of the incident at this stage and brings it in the purview of 'further inquiry'. In all probability, according to the learned counsel for the respondent both the parties grappled with each other before the actual incident. But at this stage we are purposely not adverting to make any observation on this aspect of the case as the same may not prejudice the case of either of the parties. However, the fact remains that keeping in view the overall attending facts and circumstances .Of the case and the role attributed to the respondent, the Shariat Court has extended him the concession of bail. The discretion exercised by the Shariat Court in favour of accused-respondent does not appear to be either perverse, arbitrary or capricious so we do not feel advised to interfere in the judicial exercise of the discretion. The authorities cited by the learned counsel for the appellant, do not help his case as they were given under different circumstances keeping in view the peculiar facts of the respective cases. It may be pointed out that an authority in one bail matter may hardly be relevant in the other case as the facts and circumstances of each and every case are distinguishable, thus we need not dilate upon the authorities cited in detail.
9. For the aforesaid reasons, finding no force in this appeal, the same, therefore, stands dismissed.
The bail order passed in favour of respondent remains intact.