' MUHAMMAD YUNUS SURAKHVI, J.--This criminal appeal is directed against an order passed by the Shariat Court of Azad Jammu and Kashmir on July 5, 1997, whereby the concession of bail was declined to the appellants.
2. The brief facts, forming the background of the present appeal, are that vide F.I.R. No,17 of 1996, a case under sections 302/324, 337, 147/148, 149, 34, A.P.C. Was registered against the appellants and 10 others at Police Station Leepa on October, 17, 1996. The case of the prosecution, as stated in the F.I.R. Is that there was a civil litigation between Lal Wazir and others on the one hand, and Sarwar Khan and others on the other, regarding the partition of their lands and cases were pending in the civil Court. Lal Wazir and others appointed Abdul Rehman, the father of Riaz-ur-Rehman complainant, as their attorney for the prosecution of their cases. On the suits filed by both the parties stay orders had been issued by the Civil Court. Despite the stay order having been issued, on October 17, 1996. Sarwar Khan, Nazir Ahmed Khan, Arsla Khan and others started ploughing the disputed land bearing Khasra Number 591. Abdul Rehman, the father of complainant, reprimanded them to refrain from ploughing the disputed land upon which Nazir Ahmed Khan, Muhammad Naseer Khan. Abdul Majid, Muhammad Shafique, Muhammad Ashraf, Ashfaque Khan, Sarwar Khan, Arsala Khan; Abdul Qayyum, Abdul Latif, Mst. Taj Begum, Mst. Rafique Begum, Mst. Tahira Begum and Mst. Zuhra Begum, 14 accused persons armed with sticks and mattock launched the attack upon the father of complainant in the land belonging to one Hidayat Ullah. The complainant along with his brother Rehmat Khan, went to the place of occurrence to rescue their father. Nazir Khan, accused, inflicted injury with his mattock on the head of Rehmat Khan, the brother of complainant.
The victim fell down and the 'accused continued hitting him with the handle of mattock. Naseer Khan Abdul Majid and Muhammad Shafique, accused, caused injuries to Abdul Rehman, the father of complainant, with their sticks and mattock. It is also alleged in the F.I.R. That Abdul Qayyum, Abdul Latif, Ashraf Khan, Ashfaque Khan, Mst. Taj Begum and Mst. Rafique Begum inflicted injuries with their sticks on the person of the complainant. The occurrence was witnessed by Ibrahim Khan.
Aziz-ur-Rehman, Inam Khan and Arshad Khan. Rehmat Khan, injured person, succumbed to the injuries on October 18, 1996, the following day of the incident.
3. It may usefully be stated that with regard to the same occurrence a counter F.I.R. No,18 of 1996, was lodged by Sarwar Khan, one of the accused, against Abdul Rehman, Rehmat Khan, Sarwar Khan, Riaz-ur-Rehman, Ejaz Khan, Muhammad Ilyas and Aziz-ur-Rehman (complainant party herein) which appears to have been written on October 18, 1996, stating therein that on October 17, 1996, at about 4-30 p.m. He was sowing the seeds of wheat in his land bearing survey No,591 that the accused attacked on him. Rehmat Khan was armed with .12 bore gun while Riaz-ur-Rehman was having a revolver with him with which they started firing. As a result of the said firing his son Naseer Khan and a bull were injured whereas the rest of the accused were armed with sticks.
During the scuffle the gun belonging to Rehmat Khan was snatched away. The accused party then ran away. In this scuffle Naseer Khan received injury on his head whereas Sarwar Khan was also claimed to have been injured. According to this report Abdul Rehman and others resorted to firing in order to dispossess Sarwar Khan and others from the disputed land and to take .Its possession forcibly. On this report against Abdul Rehman and others, the complainant party, a cross-case under sections 324/QDA, 147/148, 149, 337 and 34, A.P.C., was registered and the police started investigating into both the cross cases.
4. The police after conclusion of investigation submitted the challan before the District Criminal Court Muzaffarabad against Nazir Ahmed Khan, Naseer Khan, Abdul Majeed, Muhammad Shafique, Muhammad Ashraf, Ashfaque Khan, Sarwar Khan, Arsala Khan, Abdul Qayyum, Abdul Latif, Mst. Taj Begum, Mst, Rafique Begum, Mst. Tahira Begum and Mst. Zuhra Begum for facing their trial.
5. All the 14 accused in F.I.R. No,17 of 1996 applied for their after-arrest bail before the District Criminal Court Muzaffarabad while the accused in F.I.R. No,18 of 1996 applied for their pre-arrest bail in the same Court. The trial Court vide its consolidated order, dated December 5, 1996, allowed the concession of bail to Mst. Taj Begum. Mst. Rafiquee Begum, Mst. Tahira Begum and Mst. Zuhra Begum in F.I.R. No,17 of 1996 while declined concession of bail to Nazir Ahmed Khan, Naseer Khan, Abdul Majid, Muhammad Shafique, Muhammad Ashraf, Ashfaque Khan, Sarwar Khan, Arsala Khan, Abdul Qayyum and Abdul Latif Khan, but in F.I.R. No,18 of 1996, the cross case, allowed the concession of bail to all the accused.
6. Feeling aggrieved with the aforesaid order of the trial Court Nazir Ahmed Khan and others, in all accused filed a revision petition before the Shariat Court and the Shariat Court vide its order, dated July 5, 1997, allowed the concession of bail to Muhammad Ashfaque, Muhammad Shafique, Abdul Qayyum Khan, and Abdul Latif Khan while this concession was declined to Nazir Ahmed Khan, Naseer Khan, Abdul Majid and Muhammad Shafique. Hence this appeal by Nazir Ahmed Khan and 3 others for their release on bail.
7. Arguing the case on behalf of appellants. Mr. Ghulam Mustafa Mughal, the learned counsel, submitted that in fact the complainant party was the aggressor. The accused appellants were ploughing their own land and the complainant party after being armed with rifle and pistol trespassed into the land and started firing. The learned counsel submitted that the occurrence did not take place in the manner as it was alleged by the prosecution. The disputed piece of land Khasra No,591 was in possession of accused appellants and Lal Wazir and others had filed a suit for possession of the said land and a stay order had already been issued. There were other various cases pending between the parties regarding the partition of lands being jointly owned by the parties and as such it was no occasion for the complainant party to have come armed with rifle and revolver who after trespassing into the land resorted to firing as a result of which Nazir Ahmed Khan himself, his son Naseer Khan, and a bull were injured. It was also strenuously argued by the learned counsel for the appellants that Abdul Rehman, the father of complainant, much prior to the incident got an attachment order of survey No,591 from the Court of Magistrate. This order was subsequently set aside by the Magistrate, however, the order was reversed by the High Court and the case was remanded but the Supreme Court of Azad Jammu and Kashmir quashed the proceedings pending under section 145, Cr.P.C. On the ground that the civil litigation was pending between the parties and the possession had been regulated by the Civil Court by issuing the stay orders but despite that the complainant party on the day of occurrence tried to forcibly dispossess the appellants from the disputed land. The learned counsel submitted with vehemence that facts and circumstances of the case clearly established that it was the complainant party which was the aggressor as a result of which a fight ensued between the parties causing injuries to the members of complainant party.
8. On the other hand Raja Shiraz Kayani, the learned Advocate-General, contended that all the accused armed with sticks and mattock, with a common object of committing murder and murderous assault, attacked on complainant, complainant's father and Rehmat Khan (now dead).
Nazir Ahmed Khan inflicted injuries on the person of Rehmat Khan and the remaining accused caused injuries to Abdul Rehman, the father of complainant, which were grievous in nature.
Similarly the accused caused injuries to the complainant. The learned counsel submitted that there was sufficient material on record connecting the accused with the commission of offence alleged to have been committed by them and there was no room for indulgence of this Court by setting aside the impugned order.
9. We have given our due consideration to the respective contentions of the learned counsels for the parties and perused the relevant record with care. At the stage of bail, the Court is not expected to go into the deeper and meticulous appreciation of the evidence on record. The rule of law is that while deciding a bail application, the Court has to make a tentative assessment of the material available on record and to reach a conclusion without expressing itself with regard to the guilt or innocence of the accused persons as that function exclusively rests upon the trial Court which opinion it has to form after the conclusion of the trial and at the time of appreciation of evidence. The material that a Court of law has to look into for the purpose of disposal, of bail application is the contents of F.I.R., the statements recorded under section 161, Cr.P.C. , medical report etc., the defence plea, if any, the attending facts and circumstances of each case and several other circumstances. Because after-all a Court of law cannot decide even a bail matter in vacuum. In the instant case the parties are admittedly the co-sharers. Couple of civil suits regarding various pieces of land including Khasra No,591, the subject of present incident, are pending in Civil Court. Counter suits have been filed by both the parties. Ithasra No,591, wherein on the day of incident the accused persons were allegedly sowing the seeds of wheat, much prior to the incident was got attached by the complainant party under section 145, Cr.P.C. By the Magistrate initially but subsequently the Magistrate withdrew his order. On a revision petition the High Court by accepting the same remanded the case to the concerned Magistrate. On appeal before this Court after examining the relevant law and facts the proceedings under section 145, Cr.P.C. Were quashed on technical grounds and it was opined that when the civil litigation was pending between the parties with regard to certain lands including Khasra No,591 and the stay orders had already been issued by the civil Court the proceedings under section 145, Cr.P.C. Were not desirable as such the same were quashed. In the background of the aforesaid litigation on the day of occurrence when the accused persons were' ploughing Khasra .No,591 it is the case of the prosecution itself that complainant forbade them from ploughing the field upon which a quarrel ensured as a result of which Rehmat Khan sustained injuries at the hands of Nazir Ahmed Khan, accused while Abdul Rehman, the father of complainant, sustained injuries at the hands of Naseer Khan, Abdul Majid and Muhammad Shafique. Similarly the complainant allegedly received injuries from Abdul Qayyum and others. In the counter-F.I.R. No,18 of 1996 it is the case of Nazir Ahmed Khan, accused, that they were sowing the seeds of wheat in the field, Khasra No,591 whereupon the complainant party trespassed into the land and initiated attack upon them to forcibly dispossess them from the disputed land. So, from both the F.I.Rs, the positive conclusion that one reaches is that in fact the bone of contention between the parties was a piece of land bearing survey No,591 regarding which a civil litigation was pending between the parties. From the perusal of record it appears that there were three different suits titled (i) Arsala Khan and another v. Nazir Ahmed Khan, (ii) Arsala Khan v. Saltanat Khan and others, and (iii) Nazir Ahmed Khan v. Arsala Khan pending between the parties in a civil Court pertaining to Khasra Nos. 515, 543, 675, 591, 363, 502, 500, 504 etc. The disputed Khasra No,591 vide Khasra-girdawari Rabih 1996 attached with the file of the police as well as the file of trial Court is shown initially in the ownership of Ali Shan and others wherein in the column of possession Arsala Khan, Lal Wazir Ahmed Khan are entered on the basis of some exchange of land. This latest Khasra-girdawari prima facie shows that the land in dispute was not in the exclusive possession of any of the parties but admittedly in their joint possession.
Obviously the dispute between the parties was about the partition of their joint land which had not taken place so for in meets and bounds as disclosed in the F.I.R. As said earlier the disputed land Khasra No,591 was got attached by the complainant party but the proceedings were quashed by this Court but all the same the possession of this piece of land was not handed over to any of the parties rather it was directed by this Court that the parties may get the determination of their rights from the civil Court where their suits were pending. On the fateful day of occurrence when the accused started ploughing the land probably it gave a cause to the complainant party to stop the accused from ploughing the land as a result of which after some altercation, as it appears, a fight ensured between them in which both the parties sustained injuries. The counter case got registered by the accused vide F.I.R. No,18 of 1996 was not given any importance by the Shariat Court on the ground that firstly Naseer Khan, the son of Nazir Ahmed Khan, did not get any fire-arm injury on his head as claimed by the complainant and secondly that this F.I.R. Was lodged on October, 25, 1996, and the delay, thus, occurred was not explained. We may observe here that F.I.R.
No,18 of 1996 was written on October 18, 1996, by the accused persons but the same appears to have been received by the police on October 25, 1996. Since Nazir Ahmed Khan and other accused in F.I.R. No,17 of 1996 were apprehended on the same day by the police so we cannot ignore the possibility that police is usually reluctant to receive any F.I.R. From the accused side or to listen to the version of the accused. The delay in the lodgment of F.I.R. Is not fatal like a rule of limitation as is the case in civil matters. Furthermore, the explanation for the delay can be given during the course of trial. Be that as it may, since the salient features of both the F.I.Rs, are the same thus, in our view, the cross-version putforth by the accused party has some, sort of substance in it and it was yet to be enquired into as to out of both the parties who was the aggressor and who was aggressed upon. In F.I.R. No,18 of 1996 it is the case of Nazir Ahmed Khan that the alleged .12 bore gun used in the commission of offence was snatched away and taken into custody which was ultimately handed over to the police by the accused. Along with the .12 bore gun an empty was also allegedly recovered. The licence of this gun appears to be in the name of Abdul Rehman, the father of the complainant.
10. We have also perused the police diaries in the instant case. There is a finding by the Investigating Agency that the .12 bore gun which was snatched away during the course of occurrence and was, subsequently, produced by the accused persons belongs to Abdul Rehman, the father of complainant, with which the firing was made. During the investigation many respectable of the locality narrated that the complainant was armed with pistol. Rehmat Khan was armed with .12 bore gun who initiated the attack. In the end of investigation the police merely for the reason that Naseer Khan did not receive any firearm injury stopped proceeding further with this case. The investigation of the police may or may not be correct; the fact of the matter is that the accused can use the counter-version for their defence during the trial and they cannot be deprived of this benefit. We also cannot ignore another important aspect of the case that after registration of the case F.I.R. No,17 of 1996, when the injured persons were sent for medical examination, it was stated in the police docket that injured persons including deceased Rehmat Khan allegedly received injures by the stones and sticks needless to say that there was no mention of stones in the F.I.R. Or any mention of the use of mattock in the police docket. Similarly when injured Naseer Khan was sent for medical examination it was stated in the police docket by the Investigating Agency that he allegedly received injures with stone and stick. It, therefore, follows that how the occurrence exactly started is still hidden in a mystery. The investigation of police suggests that there might have been exchange of stones between the parties and then using of sticks from both the sides, however, it leads to the inference that the occurrence has not taken place precisely in a manner the prosecution alleges.
11. We are not unaware of the fact that mere counter-version or mere registration of a cross-case may itself not be a ground for release of an accused person on bail but where in the cross-version there seems to be some substance or some truth on the face of it, it certainly makes a room for further inquiry into the guilt of the accused. In a case reported as Muhammad Sharif v. The State 1981 PCr.LJ 704 it was opined at page 705 of the report as follows:-- "The petitioner sustained two head injuries and the complainant party in the instant case has been summoned as an accused party vide Annexure 'D' on the record. These factors provide a ground to hold that there is prima facie probability that the counter-version has also some truth in it. At this stage it cannot be said with a degree of certitude as to which side is aggressor, therefore, it is a fit case of further inquiry as envisaged by subsection (2) of section 497, Cr.P.C. Reliance is placed on Rehmat Ali v. Hussain 1978 SCM R 195, Muhammad Shafi v. Hakam Ali 1978 SCM R 346 and Fazal Muhammad v. Ali Ahmad 1976 SCM R 391."
' Similarly in a case reported as Muhammad Abdullah and 2 others v. The State PLD 1981 (AJ&K) 114 it was observed as follows:-- "It is argued that mere counter-version is no ground for grant of bail. The argument is partly correct. Where there is mere counter-version, by virtue of such counter-version, accused is not entitled to bail, but when counter-version is equally supported by evidence, it cannot be lightly ignored. This Court has to place both the versions in juxtaposition in order to arrive at a correct conclusion, even in the matter of bail."
12. For the foregoing analysis we have reached the conclusion that Nazir Ahmed Khan inflicted the fatal injury on the head of Rehmat Khan who succumbed to the said injury. This accused, being responsible for causing the death of Rehmat Khan, is not entitled to the concession of bail, as such, his appeal against the impugned order of Shariat Court is rejected. The case of Naseer Khan, Abdul Majid and Muhammad Shafique, appellants, is however, distinguishable. They inflicted injuries to Abdul Rehman, a prosecution witness. The case of these accused certainly falls within the purview of subsection (2) of section 497, Cr.P.C. As it yet remains to be determined as to whether the complainant party was the aggressor or the accused. In these circumstances, these appellants are admitted to bail if they furnish a bail bond in the sum of Rs,3,00,000 (rupees three lac) each, with one surety each along with their personal bonds of the same amount to the satisfaction of Additional District Magistrate Muzaffarabad, they shall be released forthwith, provided they are not wanted in any other case or offence. The appeal to the extent of appellants 2 to 4 stands accepted by setting aside the impugned judgment.
THE END