' MUHAMMAD' YUNUS SURAKVHI, J.---This appeal has been directed against the judgment passed by the Shariat Court on 2-2-2001, whereby the concession 01' bail was refused to the accused- appellant.
2. The necessary facts, giving rise to the present appeal, are that one Muhammad Iqbal, son of Muhammad Shafi lodged a report at Police Station Leepa, Karnah, wherein it was alleged that he being school teacher was on duty on 29-5-1998, whereupon he received an information about a quarrel which ensued between Sharafat Hussain, accused-appellant and others (Mujahidins) and Abdul Waheed who was his relative. The complainant after receiving this information reached the spot where he met with Abdul Shakoor and he was told that Abdul Waheed and Abdul Shakoor were busy in some conversation standing near Antilan Bridge that in the meantime two boys came running over there. The boys were Sajid, son of Maqbool Shaikh and Farooq, son of Abdul Qayyum, residents of Balagalipur. The boys told them that a Mujahid was chasing them and in the meanwhile Mujahid Muhammad Alam whose code name was Hamza came there, enraged and started beating the said boys. Abdul Waheed tried to rescue the boys from him upon which hard words took place between Abdul Waheed and Muhammad Alam (Mujahid). Muhammad Alam (Mujahid) threatened Abdul Waheed and thereafter went to his residence situated in the office of Union Council. Abdul Shakoor and Abdul Waheed proceeded towards Kapagali and reached near the shop of Matee-urRehman at about 10-30 a.m. Where Muhammad Alam obstructed their way and started abusing them. After a short while Sharafat Hussain son of Aziz-ur-Rehman and his brother Muhammad Munir, son of Manah (Mujahid) also arrived there. The aforesaid persons attempted to drag Abdul Waheed towards the residence of Mujahidins situated in the Office of Union Council. During this happening different persons, namely, Muhammad Saleem, Muhammad Sharif, Arshad, Akram, Muhammad Yaseen and Muhammad Yaqoob reached the spot and on their arrival the Mujahidins ran away and went inside their house. After a short while two Mujahidins, namely, Sharafat and Muhammad Munir (not before us) who were armed with kalashnikov and .30 bore pistol came out of their house and raised a Lalkara. The aforesaid Mujahidins entered the house of complainant, opened the window and started firing at the complainant party. Sharafat Hussain, accused-appellant, fired with his kalashnikov on Abdul Waheed and Muhammad Saleem and caused injuries upon them who died instantaneously on account of injuries caused by the firing of Sharafat. Muhammad Munir (Mujahid) fired at Muhammad Yaseen as a result of which Muhammad Yaseen also died on the spot, whereas Muhammad Alam (Hamza) also resorted to firing by .30 bore pistol which injured Muhammad Arshad seriously. The aforesaid Mujahidins then fired indiscriminately which caused serious injuries to Muhammad Yaqoob, Muhammad Sharif and Muhammad Akram. The incident was witnessed by Qurban Ali, Abdul Shakoor, ' Mir Wali, Ali Shah, Muhammad Sabir, Muhammad Sakhi and some other persons. It was also alleged in the report that the assailants belong to Tehrik-e-Jihad and Sharafat Hussain convict-appellant, was a deserter from the Army. Abdul Waheed who was Councillor of the area often asked the aforesaid Mujahidins to behave properly while living in the locality. The assailants, according to the report, were inimical to Abdul Waheed and on account of this enmity they committed murder and injured different persons.
3. In the first instance the bail application of accused persons was moved on merits but the same was rejected. Mitring the second round the accused-appellant moved his bail application on the statutory ground due to delay in the conclusion of trial. The trial Court rejected the bail application of the appellant on two-fold grounds:-
(i) In the opinion of the Court the stautory period was not complete as the trial stood delayed on account of fault of appellant or his counsel; and
(ii) the trial Court observed that the accused was a hardened, desperate and dangerous criminal, therefore, did not deserve the concession of bail due to embargo of proviso 4th of section 497, Cr.P.C.
' Thus, the bail was rejected by the trial Court on 16-11-2000.
4. Feeling aggrieved by the aforesaid order of the District Criminal Court, Muzaffarabad, dated 16- 11-2000 the appellant herein preferred a revision petition before the Shariat Court which was dismissed vide the impugned order dated 2-2-2001. It is the aforesaid order of the Shariat Court which is the subject of present appeal.
5. In support of appeal it was vehemently contended by Mr. Ashfaque Hussain Kiani, the learned counsel for the appellant, that the stautory period of two years was complete but the trial has not been concluded so far, as such the accused-appellant was entitled for the concession of bail under proviso 3rd of section 497, Cr.P.C. The learned counsel contended that it has wrongly been observed by the trial Court as well as the Shariat Court that the trial could not be completed within the stipulated period due to any act or omission of the accused-appellant or his counsel. The learned counsel also pressed into service the submission that the facts and circumstances of the case do not suggest that the accused-appellant was hardened, desperate and dangerous criminal. The learned counsel argued that the convict-appellant and his other companions are freedom-fighters and there is nothing on the record to substantiate the argument that the accused-appellant was hardened, desperate and dangerous criminal.
6. Controverting the arguments raised by the learned counsel for the appellant, it was contended by Syed Ejaz Ali Gilani, the learned Assistant Advocate-General, that the trial was delayed on account of different acts and omissions on behalf of accused-appellant. The learned counsel contended that the interim orders recorded by the trial Court show it beyond any manner of doubt that it was the accused-appellant or his counsel who were responsible for the delay in the conclusion of the trial. The learned Assistant Advocate-General submitted with vehemence that the Shariat Court wrongly observed that by now the period of two years has been completed, whereas it was enjoined upon the Shariat Court who was sitting as a Court of appeal against the judgment- of District Criminal Court to observe that at the time when the application for bail was moved by the accused-appellant, the period of two years had not been completed. The learned Assistant Advocate-General also contended that the accused-appellant alongwith co-accused murdered three persons and seriously Injured four persons by firing indiscriminately and by using high velocity weapons like kalashnikov etc. The learned Assistant Advocate-General in support of his submissions placed reliance on unreported cases of this Court titled Muhammad Jameel Khan v. Muhammad Shakeel and another Criminal Appeal No,20 of 2000, decided on 20-12-2000 and Naeem Akram Khan v. Mumtaz Ahmed and another Criminal Appeal No,19 of 1999, decided on 8-3- 2000.
7. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that the contention raised by the learned Assistant Advocate-General is not without any substance that the Shariat Court was wrong in observing at the time of writing the judgment that by now the period of two years has been completed. Since the Shariat Court was sitting as a Court of appeal/revision against the order of District Criminal Court, therefore, the period for conclusion of trial to be looked into was the date on which the application for bail was moved by the accused-appellant. Both the trial Court as well as the Shariat Court are in agreement on the point that on the day the accused-appellant moved the application for his release on bail the stautory period of two years had not been completed as yet. We have also examined the interim orders recorded by the trial Court and produced before us by the learned A4istant Advocate-General which show it beyond any manner of doubt that the delay, if any, in the conclusion of trial was caused either due to the act or omission of the accused-appellant or his counsel. The accused-appellant was, therefore, not entitled to the concession of bail as the statutory period for conclusion of trial as yet had not been completed, moreso when the delay was caused due to the act or omission of the accused-appellant or his counsel. Even otherwise the findings recorded by the trim, Court as well as the Shariat Court that the accused-appellant being a hardened, desperate and dangerous criminal was not entitled to the concession of bail seem to be absolutely correct keeping in view the facts and circumstances of the case. The convict- appellant alongwith his companions committed three murders and injured four persons seriously on a petty matter being armed with high velocity weapon like kalashnikov etc. This shows nothing but the desperate and dangerous criminal bent of mind of the accused-appellant. In a case titled Muhammad Jameel Khan v. Muhammad Shakeel and another Criminal Appeal No, 20 of 2000, decided on 20-12-2000 it was observed as follows:--- "The accused-respondent, according to prosecution case, invited deceased, administered tranquilizer by mixing it in the food, served to the deceased and when the deceased fell unconscious, he gave a blow on his head with a Sota which resulted into fracture of his skull. Then the accused tied muffler around his neck and put him to dead. After putting him into death, his dead body was buried in the gutter of the bath room of his house. Then he dropped a letter in the house of real uncle of the deceased showing the deceased to have gone for Tabligh-e-Islam. This letter was taken into custody by the police and after taking specimen signatures of the accused- respondent, this letter was sent to handwriting expert who opined the said letter to have been written by the accused-respondent. Not only this, but he through different fake telephonic calls and through nears and dears created an impression in the vicinity that the deceased was on tour with a Tablighi Jamat, thus, side-tracked the investigation for a considerable time. During this time he also got himself recruited in the Police Department but subsequently he managed to run away and secured a pre-arrest bail which stood declined later on and resultantly he was apprehended.
Therefore, this Court is fully convinced that he is not an ordinary criminal but a 'dangerous criminal'; who does not deserve the concession of bail under the amended law pertaining to delay in the trial."
' In another case titled Naeem Akram Khan v. Mumtaz Ahmed and another Criminal Appeal No,19 of 1999, decided on 8-3-2000 while giving reference to another case titled Muhammad Aziz v. State Criminal Appeal No,2 of 1998, decided on 15-5-1998 it was held as under:-- We are of the opinion that the question as to whether an accused is hardened, desperate or dangerous criminal within the meaning of the aforesaid proviso is to be .Seen in light of the circumstances of each case, i,e, (i) the motive for murder, (ii) the part which each of the accused played in the commission of the offence, (iii) prima facie evidence in support of the incriminating act attributed to the accused persons and (iv) the effects of the act of the accused on the family of victims and on the society at large."
8. In the instant case the accused-appellant with a high velocity weapons like Kalashnikov by resorting to indiscriminate firing alongwith his companion took the life of three persons who died instantaneously on the spot and four persons were injured callously and mercilessly. As stated earlier, this act of the accused is nothing but a highest stage of barbarism and high-handedness which shows the desperate and hardened nature of criminality of the accused-appellant.
9. The Shariat Court has rightly observed that the accused-appellant belongs to a Mujahid Organization and the chances of his absconsion, in case he is released on bail, cannot be ruled out.
It has also been observed by the Shariat Court that the trial is at the verge of completion, therefor it would not be desirable to extend ti :e concession of bail to the accused-appellant. We have no reason to take a different view than the one which has been taken by the Shariat Court.
10. For the aforesaid reasons, finding no force in this appeal, the same stands dismissed and we uphold the judgments recorded by the District Criminal Court and the Shariat Court. pail refused.