MUHAMMAD YUNUS SURAKHVI, J.---This appeal is directed against an order passed by the Shariat Court of Azad Jammu and Kashmir on July 15, 1996, whereby the revision petition filed by the appellant herein, was dismissed.
2. The precise facts of the prosecution case, as disclosed in the F.I.R lodged at Police Station Bhimber, on 7-1-1993, at 9-45 a.m. Are that the complainant, Muhammad Tufail, an Advocate, left his house in his Suzuki car alongwith his brother Muhammad Iqbal, Mst. Safina Waheed, his niece and his two nephews Khalid Arshad and Amjad Arshad for attending the Courts at Bhimber. His three other nephews namely Sajid Arshad, Waheed Arshad and Babar Iqbal also left the house on their motorcycles and followed the complainant. After leaving the house, the complainant had hardly reached the road which passes through the bed of seasonal torrent, he saw the accused Muhammad Ameen, Fazal Hussain, Abdul Aziz, Muhammad Ishaq, Muhammad Iqbal, Shabbir and Tariq sitting in the house of Muhammad Ameen accused, adjacent to said torrent. The moment the car of the complainant reached in front to the said house accused Muhammad Ameen raised a Lalkara from the compound of the house and fired a burst from his Kalashnikov. The complainant took a quick turn to the right side but the fire hit Mst. Safina Waheed, who was sitting on the rear seat of the car. Mst. Safina Waheed was pregnant at that time and was expecting a delivery. The complainant stepped down from the car when Muhammad Ameen accused-appellant fired another burst from the Kalashinkov on Sajid Arshad who was following the complainant on the motorcycle. This fire hit Sajid Arshad. Accused Fazal Hussain fired from his Kalashnikov and caused injury to Shaukat Nawaz, the other nephew of the complainant. All the accused persons were firing from their weapons. Accused Abdul Aziz was armed with 7 MM rifle while Muhammad Ishaq and Shabbir were armed with .12 bore guns. On account of injuries caused by the accused-appellant, the said Sajid Arshad succumbed to the injuries on the same day.
3. On the report lodged by the complainant, a case under sections 307/341, 148/149, A.P.C. Read with section 5/15, Islamic Penal Laws Enforcement Act, 1974, was registered against the accused at Police Station Bhimber. After the necessary investigation of the case by the concerned police, the accused were forwarded to face their trial in the aforesaid offences before the Additional District Criminal Court, Bhimber. The appellant herein, moved an application for his release on bail in the trial Court but he was declined the said concession. Feeling aggrieved with the order of the trial Court, the appellant preferred a revision petition before the Shariat Court of Azad Jammu and Kashmir which was- dismissed vide its order impugned in this appeal.
4. Arguing the case on behalf of the appellant, Mr. Liaqat A.I Khan, the learned counsel submitted with vehemence that according to the prosecution story the appellant resorted to firing from the compound of his house, whereas the empties were recovered from inside of the house. The learned counsel contended that some eye-witnesses stated that the firing was initiated by the accused from inside of the house and some stated that it was made from the compound of the house.
According to the learned counsel there were material contradictions in the statements of prosecution witnesses casting a serious doubt on the case. The learned counsel maintained that in view of firing made by all the accused, it would not have been said with any degree of certitue as to whose firing hit the deceased and the other injured prosecution witnesses. The learned counsel strenuously contended that the rest of the accused have also been attributed the firing by their fire-armed weapons and the role attributed to them is similar as that of the accused-appellant so following the rule of consistency the appellant should also have been allowed the concession of bail but he was declined this concession most probably on account of his abscondence for a certain period. The abscondence, itself, according to the learned counsel for the appellant, is no ground for refusing the concession of bail. The learned counsel submitted that trial Court as well as the Shariat Court committed a grave legal error by refusing the concession of bail to the appellant.
5. Controverting the arguments advanced by the learned counsel for the appellant, Ch. Lal Hussain, the learned counsel for the complainant, submitted strenuously that the arguments advanced by the learned counsel for the appellant have no legal basis as the firing was made by the accused from the compound as well as from inside the house and the recoveries of empties were made from both the places. The learned counsel further submitted that the role attributed to the appellant is distinguishable from the rest of the accused persons The learned counsel maintained that the fatal injury caused to deceased Sajad Arshad is attributed to the appellant. He also inflicted injuries to Mst. Safeena Waheed, who as a result of these injuries, gave birth to a dead child. The learned counsel contended that the accused-appellant after committing the offence absconded and remained fugitive from law for a period of more than two years, thus by his conduct the appellant disentitled himself to the concession of bail. The learned counsel submitted that both the trial Court and the Shariat Court have declined the concession of bail to the appellant by exercising their judicial discretion and this Court should not interfere in the valid exercise of the discretion. The learned counsel in support of his submissions cited the reported cases of Muhammad Sadiq v. Sadiq and others PLD 1985 SC .182' and ' Awal Gul v. Zawar Khan and others PLD 1985 SC 402 and Mst. Nasreen Akhtar and 5 others v. Raja Muhammad Asghar PLD 1993 SC (AJ&K) 1.
6. Ch. Muhammad Mushtaq, the learned Additional Advocate-General, fully owned the contentions raised by the learned counsel for the complainant.
7. 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 trial Court and the Shariat Court have disallowed the concession of bail to the accused-appellant mainly on the grounds that the role attributed to the appellant is that he by his Kalashnikov hit Sajid Arshad who later on succumbed to the injuries. Similarly the appellant made a murderous assault on Mst. Safeena Waheed who was grievously injured by his firing. The Shariat Court also observed that it was a case of reckless and indiscriminate firing as such the accused-appellant was not entitled to the concession of bail. It was also observed that the accused-appellant had absconded after committing the offence and remained fugitive offender and as such was not entitled to the concession of bail on account of his deplorable conduct. In our view the grounds made basis for declining the concession of bail to the accused-appellant are in consonance with the settled rules governing the bail matters. There is a concurrent finding by the trial Court as well as Shariat Court and both of them disallowed the concession of bail to the accused-appellant. This Court normally does not interfere in the judicial exercise of discretion unless the same is shown as perverse, arbitrary or capricious. The role attributed to the accused-appellant in our view is distinguishable than the rest of the accused who have been enlarged on bail. The role assigned to the appellant is that he caused fatal injury to Sajid Arshad as a result of which he ultimately died. Similarly Mst. Safeena Waheed was fired upon by the appellant who received grievous injuries.
8. As regards the plea that there were certain contradictions in the statements of eye-witnesses with regard to the place from where the firing was started, in our view, has no legal foundation. The witnesses have explained that the firing was resorted to both from the compound of the house as well as from inside of the house. The empties were also recovered from both the places, thus this plea is also of no help to the accused-appellant.
9. Advertising to the rulings cited by the learned counsel for the respondent, it may be stated that in both the cases cited from the jurisdiction of Supreme Court of Pakistan, the principle that had been enunciated is that an absconder even morally deserves no sympathy to be released on bail.
The third case from the jurisdiction of this case is distinguishable as the same deals with the pre- arrest bail matter. In our view abscondence per se may not to be a solely ground for refusal of bail but it is indeed one of the factors which could be taken into consideration by a Court of law. The accumulative effect of all the relevant circumstances is that the appellant was rightly declined the concession of bail, warranting no interference by this Court.
10. The nutshell of the above discussion is that finding no force in this appeal, the same, stands dismissed.