MUHAMMAD YUNUS SURAKHVI, J.---This appeal, as of right, is directed against an order passed by the Shariat Court on May 7, 1996, whereby the appeal filed against the order of District Criminal Court, Bagh granting the concession of bail to respondent No.1 vide its order dated May 7, 1995, was dismissed.
2. The relevant facts, forming the background of the present appeal, are, that on the report lodged by the appellant herein, at Police Station, Bagh, a case under section 5 of Islamic Penal Laws Enforcement Act read with section 109, A.P.C. Was registered against accused-respondent Muhammad Manzoor Khan and 4 others. After the necessary investigation by the police, all the accused were held responsible for the death of Gul Afsar, deceased, and were forwarded to face their trial before the District Criminal Court, Bagh. All the accused moved their bail application before the trial Court on July 29, 1993. The trial Court granted bail to Mst. Zareeda Begum, female accused, on medical ground but refused the concession of bail to all the male accused persons.
The second application was also moved by the accused persons on December 20, 1993, but the bail was declined to them by the trial Court. This order was unsuccessfully challenged before the Shariat Court and the accused persons were declined the concession of bail vide order dated 1-11- 1994, however, it was observed by the Shariat Court that the accused persons may renew their prayer for bail, after evidence of principal P.Ws. Is recorded by the trial Court.
3. When the statements of few prosecution's witnesses were recorded by the trial Court, another application was moved on March 25, 1995, by the accused persons seeking their release on bail, which was allowed to the extent of Muhammad Manzoor Khan, respondent No. 1, herein, by the trial Court vide its order dated May 27, 1995. The aforesaid order was challenged by way of appeal in the Shariat Court by the complainant-appellant herein, but the same was dismissed vide the order impugned in this appeal.
4. Sardar Rafique Mahmood Khan, the learned counsel appearing on behalf of the appellant, contended that the ground made basis for release of the accused-respondent on bail was not taken by the respondent in his application filed before the trial Court. According to the learned counsel it was no case of the accused-respondent that on the fateful night when the alleged occurrence took place, he was not present on the scene of occurrence, as such the trial Court illegally extended the concession of bail to the accused-respondent on the above ground. The mistake committed by the trial Court was again repeated by the Sharait Court to maintain the order passed by the trial Court. According to the learned counsel, Gul Afsar, deceased, was murdered by accused-respondent alongwith other accused by administering him poison in the house of Bagga Khan which was jointly owned by the accused-respondent and his brothers at the relevant time. The learned counsel pressed into service the submission that in the previous rounds the concession of bail was disallowed to the accused-- respondent up to the leval of Shariat Court and a definite direction was given by the Shariat Court that after recording the evidence of principal P.Ws. The bail prayer may be renewed but all the same the trial Court did not grant the bail to the accused-respondent on the basis of evidence of the witnesses recorded by it but on a ground which was available to the accused even during the previous two rounds.
5. On the other hand, Sh. Abdul Aziz, the learned counsel for accused---respondent, forcefully defended the orders recorded by the trial Court and the Shariat Court; he argued that on a very strong reason the concession of bail was allowed to the accused and the discretion validly exercised by the trial Court was confirmed by the Shariat Court.
6. After hearing the respective contentions of the learned counsel for the parties and perusing the record made available with care, it may be stated that the concession of bail was allowed to the accused-respondent on the ground that on the fateful night of occurrence in the house of Bagga Khan, the accused-respondent was not present in accordance with the depositions of Haji Mir Alam and Mst. Farzana, recorded in the police diaries. Mst. Farzana happens to be the daughter of deceased. Thus in the opinion of the trial Court, the participation of the accused-respondent in the commission of offence on the night of occurrence, was prima facie doubtful. It may be pointed out that in the previous rounds of bail applications, nowhere this ground was either urged or resolved by the trial Court or the Shariat Court. So in our view a ground for bail which was neither urged nor resolved at the time of previous bail applications, could have been validly agitated by the accused-respondent and the trial Court very rightly considered and resolved the same by granting the concession of bail to the accused-respondent. The learned counsel for the appellant could not cite a single authority in support of his contention that a ground even not urged and resolved during the previous round of bail applications can form the basis for declining the concession of bail to an accused. There is ample authority on the point that an order passed on a bail application one way or the other is not strictly speaking a judgment within the meaning of section 369 of Cr.P.C.
The proposition came under consideration in a case reported as Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (PLD 1970 SC 335), wherein Mr. Justice Wahiduddin Ahmad spoke for the Court at page 339 of the report in a following way:-- "The question for consideration is whether section 369 of the Criminal Procedure Code controls section 498, Cr.P.C. Or section 561-A of the Criminal Procedure Code applies to it. In my opinion, section 369 of the Cr.P.C. Does not control section 498 and in suitable cases section 561-A of the Criminal Procedure Code can be invoked. In the first place, an order passed under section 498, Cr.P.C. Is not a judgment within the meaning of section 369, Cr.P.C. Moreover, section 369 of the Criminal Procedure Code is in the Chapter relating to original trial and unless it is specifically applied to other proceedings under the Criminal Procedure Code, it cannot be said to have any application to other proceedings."
Similarly in the case reported as Amir-ud-Din v. The State and another (PLD 1977 SC 602), it was observed at pages 607 and 608 as under: "According to section 369 of the Code no Court when it has signed its judgment, shall alter or review the same except to correct a clerical error. But strictly speaking an order allowing or cancelling bail does not amount to a judgment within the meaning of this section. In Gulzar Hassan Shah v. Ghulam Murtaza and 4 others this Court has held that an order passed under section 498 of the Code is not a ' judgment' within the meanings of section 369 of the Code so as to operate as a bar against its alteration or review. In Gulzar's case before the Supreme Court it was conceded that application for bail can be made from time to time on fresh material. But in the context of the observations made by the Supreme Court this concession does not necessarily connote that in the absence of any fresh material under no circumstances a second application for bail or for the cancellation of bail already allowed can be entertained. "
7. From the perusal of the above-cited authorities, it appears that since the bail order strictly speaking, is not a judgment within the meaning of section 369, Cr.P.C. So a ground which was neither urged nor resolved at the time of previous bail applications there seems to be no bar to agitate it in the subsequent round and get it resolved.
8. The submission made by the learned counsel for the appellant that the appellant nowhere pleaded in his bail application that he was not present at the place of occurrence on the fateful night, so he cannot urge the point in absence of his pleading and thus could not be benefited out of it is also devoid of any legal force. It is not necessary in a bail petition that the accused should specifically plead a plea. If from the record any legal plea could be raised or a reasonable doubt arises with regard to the participation of the accused in the commission of offence, the accused may be validly given the benefit of doubt even at the stage of bail. Criminal law, in our view, is not a law of omission and commission as is the case with the civil law.
9. Even otherwise now it is settled that this Court normally does not interfere in the judicial exercise of a discretion in the bail matter unless it is shown that the discretion exercised by the trial Court was either perverse or violative of the principles governing the bail matter. No such infirmity was pointed out in the valid exercise of discretion by the trial Court which was confirmed by the Shariat Court; thus we are not persuaded to interfere in the judicial exercise of discretion.
10. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed, keeping intact the bail grant order.