' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal is directed against the order of the Shariat Court, dated 5-6-1999 passed in Criminal Appeal No,41 of 1998, whereby the appeal filed by the complainant, respondent No,1 herein, against the order of District Court of Criminal Jurisdiction, Pallandri, dated 4-12-1998, on the basis of which the accused-appellant was released on bail, was accepted and the order of District Criminal Court was set aside.
2. The necessary facts, giving rise to the present appeal, are that a case for committing offence under section 322, A.P.C. Was registered at Police Station Pallandri on the report of complainant Muhammad Rashid Khan on 23-9-1998. It was alleged in the F.I.R. That the respondent- complainant along with his son Muhammad Waheed were running a hotel business in Pallandri Bazar. According to the F.I.R. On 23-9-1998, at about 4-30 p.m. The accused-appellant Babar Hussain alongwith another unknown person came to the complainant at his hotel and called upon Muhammad Waheed in a room situated in the ground-floor of the hotel. After a few minutes the complainant on the noise, of a fire went down the stairs of his hotel and saw his son Muhammad Waheed lying unconscious on the Charpai' in the room. Meanwhile the other accused person who accompanied the accused-appellant managed to run away and hide himself in maize crops. The complainant found his son lying on 'Charpai' with an injury caused by a pistol shot on. The left side of his chest. It was bleeding out of the wound. According to the F.I.R. The incident took place on account of carelessness and negligence of the accused/appellant as Muhammad Waheed (deceased) was hit by the fire of pistol when accused-appellant was pulling out the entangled bullet from the pistol. The injured person was taken to the hospital where he succumbed to the injury. The incident, according to the F.I.R., was witnessed by Muhammad Akhlaq, Munshi Khan, Roshan Din, Sakhi Muhammad and Muhammad Azam, besides the complainant Muhammad Rashid Khan.
3. It is evident from the F.I.R. That the same was received by the police in the hospital where they had reached on a telephonic message by some unknown person. After receiving the report initially a case for committing an offence under section 322, A.P.C. Was registered and later on during the investigation the same was converted into an offence of intentional murder under section 302, A.P.C. The police concerned after completion of investigation forwarded the accused-appellant to face his trial before the District Court of Criminal Jurisdiction, Pallandri under section 302, A.P.C. The unknown person who accompanied the accused-appellant at the time of their arrival in hotel and going towards ground-floor was found innocent by the police and as such was discharged. The accused/appellant is now facing trial and after his examination under section 242, Cr.P.C. The statement of complainant Muhammad Rashid Khan has been recorded. The accused-appellant moved an application before the District Court of Criminal Jurisdiction, Pallandri for his release on bail and the said Court allowed him the concession of bail through its order, dated 4-12-1998. The aforesaid order was assailed by the complainant before the Shariat Court which, as said earlier, cancelled the bail of accused-appellant vide its order, dated 5-6-1999. It is the aforesaid order of the Shariat Court which is the subject of present appeal.
4. Sardar Rafique Mahmood Khan, the learned counsel appearing on behalf of appellant, vehemently contended that the initial report was lodged by the father of deceased for commission of offence under section 322, A.P.C., but subsequently the same was converted for committing the offence under section 302, A.P.C. Without any plausible material brought on record connecting the appellant with the commission of offence of intentional murder. The learned counsel submitted that an afterthought version was put forward by the complainant on the next day and the complainant got his supplementary statement recorded under section 161, Cr.P.C., whereby he made a change in his earlier statement which was recorded by the police on 23-9-1998. The learned counsel pressed into service the submission that there were no reasonable grounds to believe that the accused-appellant was connected with the commission of offence of intentional murder. It was further submitted by the learned counsel for the appellant that the District Criminal Court, Pallandri while releasing the accused/appellant on bail exercised its discretion in a legal and judicial manner which does not in any way suggest that the aforesaid order was violative of law and against the settled principles governing the bail matters.
5. Sardar Muhammad Hussain Khan, the learned counsel for complainant/respondent No,1, submitted that the District Criminal Court in releasing the accused-appellant on bail departed from the settled principles governing the bail matters. He further submitted that the case of prosecution stood admitted by the defence while cross-examining the complainant in the witness- box during the trial. The learned counsel during the course of his arguments drew our attention towards different suggestions made by the defence counsel during cross-examination which in the estimation of the learned counsel amounted to admission of the alleged offence by the defence. According to the learned counsel though the case was initially registered under section 322, A.P.C. But later on during the investigation the police arrived at a conclusion that the deceased was done to death intentionally by the accused-appellant. Therefore, according to the learned counsel the mere fact that the case was initially registered under section 322, A.P.C. Does not debar the police from converting it into an intentional murder.
6. Raja Shiraz Kayani, the learned Advocate-General, also supported the contentions raised by the learned counsel for complainant-respondent No,l.
7. After hearing the learned counsel for the parties and perusing the record, it may be stated that respondent Muhammad Rasheed Khan lodged a written first information report and is also stated to have made a statement to the Police under section 161, Cr.P.C. Muhammad Rasheed Khan admits that the written report is signed by him but he now states that its contents were not known to him. Subsequently he made another statement to the Police in which the version is substantially different from the first information report and his previous statement recorded by the Police. In the prevalent system contents of the First Information Report carry great weight. It is for respondent Muhammad Rasheed Khan to prove that the contents of the First Information Report were not known to him when he signed the written report but the fact remains that when the bail application was moved before the District Criminal Court two versions of the incident were present before the trial Court, both of which came from, the complainant. In light of the first information report a prima facie case under section 322, A.P.C. Was made out but if the subsequent version of the complainant is considered then section 302, A.P.C. Is applicable. Before recording of evidence there were two versions out of which one clearly favoured the accused. In these circumstances the trial Court granted bail to the accused. It is, well-settled. That benefit of doubt goes, to the accused even at bail stage, Therefore, in our view, at that stage of proceedings the trial Court acted rightly in granting bail to the accused.
8. Meanwhile the trial has started. When the bail matter went to the Shariat Court the evidence of the complainant had been recorded at the trial. Since the statement was made after the decision about the bail matter by the District Criminal Court, that Court did not have the occasion to consider the said evidence. However, the Shariat Court has considered the evidence and has relied on suggestions given by the defence which were to the effect that the complainant's son had been murdered and that he (complainant) was an eye-witness. These suggestions were considered by the Shariat Court while forming the conclusion that the respondent was not entitled to bail. In our view the Shariat Court should not have considered the evidence recorded by the trial Court because it had not been considered by the trial Court itself while deciding the bail matter.
Therefore, we have excluded from consideration the evidence recorded by the trial Court.
9. It may be made clear that our view that the respondent was entitled to bail relates to the time when evidence had not yet commenced. If during the trial any incriminating material has come on the record or may in future come on the record the trial Court will be free to reconsider the question of bail, if so moved, in light of fresh material.
10. In the light of what has been stated above, by accepting the appeal and setting aside the impugned judgment of the Shariat Court, we order the release of accused-appellant on his bail bond and personal bond already executed by him as directed by the trial Court. The accused- appellant shall be released forthwith, if he is not wanted in any other case or offence.