' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, as of right, has been directed against the judgment passed by the Shariat Court on 25-7-2000, whereby the concession of bail was allowed to Muhammad Ilyas, respondent No,2 herein.
2. The necessary facts; giving rise to the present appeal, are that accused-respondent Muhammad Ilyas. Is facing trial before the District Criminal Court Mirpur on a charge of murder. An F.I.R. Was lodged by Umar Farooq, complainant-appellant herein at Police Station Thothal on 18-10- 1999 at 7.45 p.m., alleging therein that at about 7 p.m. Muhammad Nadeem, deceased, brother of complainant alongwith Nadeem and Khalid Mehmood, son of Muhammad Zaman and Khalid Mehmood son of Karam Elahi, and Azhar Mehmood son of Nizam Din were proceeding towards their houses after attending the prize ceremony of a cricket match. It was further alleged that complainant was also following them towards his house. As soon as they reached near the house of accused Muhammad Ilyas, he being armed with 30-bore pistol was standing in front of his house who raised a 'Lalkara' that Muhammad Nadeem and his companions would not go alive. The accused waylaid and made a pistol shot. The deceased and his other companions fled away from the scene of occurrence in order to save their lives but the accused chased them and made another fire of pistol upon Muhammad Nadeem which hit the left side of his scalp. The accused ran away from the scene of occurrence after making fires. It was further stated in the F.I.R. That complainant saw the accused person in the streetlights and the lights of other houses and heard the voice of his 'Lalkara'. Muhammad Nadeem succumbed to his injuries on his way to Hospital. The occurrence is stated to have been witnessed, apart from complainant, by Nadeem, Khalid Mehmood sons of Muhammad Zaman and Khalid Mehmood son of Karam Elahi, Azhar Mehmood son of Nizam Din and other persons.
3. The motive behind the occurrence has been alleged to be an altercation which took place on 17- 10-1999 when the accused admonished Muhammad Nadeem (deceased) and Nadeem son of Muhammad Zaman not to move frequently in front of his house.
4. On the report of the complainant a case under sections 302 and 341, A.P.C. Was registered. After necessary investigation, the accused was sent to District Criminal Court Mirpur for facing his trial where in his statement under section 242, Cr.P.C. He denied his guilt. The accused-respondent Muhammad Ilyas moved a bail application before the District Criminal Court Mirpur on 1-2-2000, but on account of difference of opinion between the learned members of the Court, the reference was sent to the Shariat Court under section 23, subsection (3) of Islamic Penal Laws Enforcement Act, 1974. The learned Sessions Judge refused to allow the concession of bail to accused- respondent, whereas the learned District Qazi extended him the said concession. The Shariat Court vide its order, dated 25-7-2000 in reply of reference concurred with the view of District Qazi and allowed the concession of bail to the accused-respondent.
5. Mr. Liaqat Ali Khan, the learned counsel for the complainant appellant, vehemently contended that the accused-respondent was allowed bail by the District Qazi and the Shariat Court in an unlawful manner, as such the impugned order passed by the Shariat Court was not sustainable in the eye of law. It was contended by the learned counsel that the counter-version by the accused is nothing but an afterthought which was taken before the police on 28-10-1999 after 10 days of the occurrence. He pointed out that the affidavits showing the innocence of accused-respondent could not be taken into consideration as the same were placed on record after a considerable delay. The learned counsel contended that the accused-respondent could not have been given the benefit of investigation of the case conducted by Raja Muhammad Nasim Khan, D.S.P. City Mirpur, as according to him the ipsi dixit of police is never binding on the Courts. The mere fact that the D.S.P. Has formed the view that there was firing from both the sides, the benefit of the same could not have been extended to the accused-respondent. The learned counsel submitted that the D.S.P. Should have formed his opinion on the basis of some material on record and not on mere conjectures and on the basis of affidavits placed on record from the side of accused-respondent.
The learned counsel maintained that the Shariat Court as well as the District Qazi fell in patent error to release the accused on bail in a heinous offence like murder. The learned counsel for the appellant contended that the pistol recovered from the accused and the empty were sent to ballistic expert and his report corroborates the version of the prosecution that the fire was made from the pistol which was allegedly recovered at the instance of the accused-respondent.
6. Controverting the arguments raised by the learned counsel for the complainant-appellant Ch. Muhammad Azam Khan; the learned counsel for accused-respondent strenuously argued that the occurrence as alleged by the prosecution, has not taken place it a manner as has been disclosed by the prosecution in the F.I.R. On the other hand, according to the learned counsel for accused- respondent, it is a case of counter-version and from the record it transpires that the deceased was killed by one of his companions. In this regard he referred to the affidavits sworn in by Matloob Hussain, Muhammad Riaz, Muhammad Fayyaz, Muhammad Alam, Zahida Bi, Khurshid Begum and Zubaida Bi, which were sworn in by them and duly placed on record during the investigation. The learned counsel also contended that it is an admitted position between the parties that occurrence took place in front of house of the accused and a bullet was fired upon the house of accused which damaged his gate. The learned counsel has further maintained that according to the investigation of Raja Muhammad Nasim Khan, D.S.P. City Mirpur, the filing was made by companions of deceased in consequence of which the deceased was done to death. The learned counsel also pointed out mat according to the F.I.R. Only one fire has been attributed to the accused-respondent but on the investigation conducted by. D.S.P., so many fires were made at the place of occurrence. The learned counsel also contended that from the scene of occurrence one magazine with a live bullet of 30 bore pistol was recovered, whereas another magazine was allegedly recovered at the time of recovery of pistol from the accused-respondent having 3 live bullets.
7. Ch. Muhammad Mushtaq the learned Additional Advocate-General, appearing on behalf of the State, fully supported the arguments advanced by the learned counsel for the complainant- appellant.
8. After hearing the respective contentions of the -learned counsel for the parties, it may be stated that deeper appreciation of evidence at the stage of bail, time and again held by the superior Courts, is neither desirable nor permissible. The learned Shariat Court has gone to the extent that the fire was made by the accused from the distance of 15 feet as shown in the site plan and the same could not have caused blackening on the body of the deceased if the fire was made from the range of more than 3 feet. The Shariat Court has also opined that there seems to be no reasonable ground connecting the accused-respondent with the commission of offence alleged.
The aforesaid findings recorded by the Shariat Court are against the settled principles relating to bail matters.
9. It may be stated that keeping in view the overall facts and circumstances of the case and the investigation conducted by Raja Muhammad Nasim Khan, D.S.P. City Mirpur, this fact has come to light that in fact the firing was made from both the sides. It is also born out from the record that complainant party not only fired upon the gate of the accused and damaged it but they unlawfully entered into the house of accused and illegally confined and assaulted some of the inmates of the house of the accused. The D.S.P. On the basis of material collected by him during the investigation reached the conclusion that it is the complainant party who was the aggressor. The Investigating Officer, D.S.P. Has gone to the extent that it is the complainant party at whose hands the deceased was done to death but despite that he did not exonerate the accused-respondent from his liability and placed him at the mercy of the Court. It is the bounden duty of an Investigating Officer to come to a definite conclusion and to act according to law. But the fact remains that the firing was made by both the parties and the affair does not seem to be one sided as alleged by the prosecution. It yet remains to be resolved at the conclusion of the trial as to whether the complainant party was the aggressor or the accused. The place of occurrence is admittedly shown to be in front of house of accused. It has also come on record that on some previous occasion the accused, admonished the deceased Muhammad Nadeem and another Nadeem son of Muhammad Zaman, not to move frequently near the house of accused-respondent. It is also admitted by the prosecution that a bullet struck the gate of the accused-respondent and damaged it.
10. Even the affidavits were sworn in by various persons at the stage of investigation wherein it was shown that firing was made from the side of complainant party which entered into the house of accused thereby showing the innocence of accused-respondent. Keeping in view the overall circumstances, we are of the opinion, that the discretion exercised by the Shariat Court as well as the District Qazi in allowing the concession of bail to the accused does not seem to be perverse or against the settled principles relating to bail matters.
11. The authorities cited by the learned counsel for the appellant as well as the learned counsel for respondent No,2 need not be discussed as every criminal case has to be decided in the light of its own peculiar facts and circumstances.
12. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed.