' CHAUDHARY MUHAMMAD TAJ, J.---This appeal has been filed against the order passed by the Shariat Court on 20-10-2001, whereby the bail after arrest granted by the Court was cancelled.
2. The facts necessary for the disposal of this appeal are that a case under sections 353, 186, 324, 337-F APC and section 6 of the Jammu & Kashmir Forest Regulation was registered on the report of complainant Maroof Akram son of Muhammad Akram against the appellant and another accused person (not before the Court). It was stated in the F.I.R. That the complainant, a Block Officer in the Forest Department, on 13-12-1999 at about 11-50 a.m. Alongwith Aftab Ahmed, Muhammad Azad, Muhammad Latif, Shaukat and Muhammad. Mushtaq was present in Ghaneer Forest on the inspection tour of Forest compartment. They saw Ghias appellant and Zaheer son of Malak, caste Rajput, who were cutting a tree and were preparing the pieces of wood. The complainant with other employees, having reached there, asked them to hand over the weapons they were carrying but they refused. Appellant Ghias who was in possession of the pistol fired two shots in the air and also stated that no one should come near him. The other accused Zaheer was armed with a Hatchet. It was further stated that the complainant along with others snatched two hatchets and one saw from the accused and started coming back. They had covered hardly 100 yards distance when Ghias appellant demanded that the weapons be given back to him on refusal, the two accused started snatching the weapons. Failing to succeed, the accused Ghias fired with his pistol at the complainant which hit his left thigh. The complainant after receiving injury fell down. The accused took the weapons (Kulhara and saw) and ran away except the one hatchet which remained with the complainant. The accused knowing the fact that the complainant and other civil servants who were on duty attacked them and thus, grievously injured the complainant. The accused after cutting the forest wood used to sell the same. After investigation the police challaned the case before the trial Court.
3. The appellant and other accused were arrested who moved an application for their bail after arrest which was accepted and both the accused were released on bail. The appeal filed on behalf of the complainant for cancellation of bail was disallowed by the District Criminal Court, Mirpur. The complainant filed a revision petition before the Shariat Court of Azad Jammu and Kashmir challenging the order passed by the District Criminal Court which was accepted to the extent of appellant whose bail was cancelled. However, the revision was dismissed to the extent of other accused. This appeal challenges the aforesaid order.
4. Ch. Ali Muhammad, the learned counsel for the appellant, raised the following points in support of the appeal:---
(i) that the order passed by the Shariat Court is against law as such is not maintainable. It was contended that the trial Court as well as the First Appellate Court while exercising the discretion allowed the concession of bail to the appellant. Therefore, the order passed by the Shariat Court recalling the bail allowed by the subordinate Courts was against the accepted principles of law established by the superior Courts. It was added that there were no grounds available providing for cancellation of bail;
(ii) that according' to the complainant's own version the accused-appellant fired two shots in the air therefore, the matter was of further probe to see whether the accused is intention was to kill the complainant or not, particularly in the circumstances that the shot hitting the complainant was not repeated; and
(iii) that the prosecution case is full of doubts as neither the complainant's blood-stained clothes were taken into possession nor the wood was confiscated. The appellant was also entitled to the concession of bail which was rightly extended by the trial Court and was affirmed by the District Criminal Court as well.
' The learned counsel foL the appellant relied upon the following cases in support of his contention:---
(1) Mahmood Ahmad v. The State (1999 PCr.LJ 1555).
(2) Muhammad Ashraf v. The State and another (1999 PCr.LJ 1668).
(3) Lateef and another v. The State (2000 PCr.LJ 585).
(4) Muhammad Sharif and others v. The State (1999 PCr.LJ 565).
(5) Muhammad Akram and 2 others v.
The State (1999 PCr.LJ 1975).
(6) Saleem Khan v. The. State (1999 PCr.LJ 140).
5. Mr. Liaquat Ali Khan, Advocate and Sardar Abdul Razik Khan, Additional Advocate-General, who appeared on behalf of the respondents, argued in the following manner:---
(i) that a strong prima facie case existed against the accused-appellant which after investigation_ has been challaned before the competent Court of Criminal jurisdiction where the proceedings are in progress;
(ii) that both the Courts below, the Tehsil Criminal Court and the District Criminal Court, illegally held the case as one of further inquiry, although they did not state any fact suggesting the case of further probe. The orders passed by both the subordinate Courts were arbitrary and bad in law.
Therefore, the Shariat Court in exercise of its power rightly cancelled the bail to the extent of the appellant;
(iii) that the accused-appellant fired at the complainant with the intention and knowledge that by his act he would cause `Qatl' and
(iv) that the Courts below did not apply their minds on this aspect of the case that there were very strong grounds to connect the accused with the offence and there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life. Therefore, he was not entitled to be released On bail unless the case was covered by any of the provisions contained in subsection (1) of section 497 Cr.P.0 .
' Mr. Liaquat Ali Khan, placed reliance on the following cases in support of his contentions:---
(1) Qurban Ali v. Muhammad Sabir and 2 others (2000 PCr.LJ 394).
(2) Muhammad Bashir and 3 others v. Manzoor Ahmad Khan and another (2001 YLR 2955)
(3) Muhammad Arif v. The State (1998 PCr.LJ 14.9).
6. We have heard the learned counsel for the parties and also gone through the record. While considering a bail matter of an accused involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail unless the case is covered by any of the provisos contained in subsection (1) of section 497 Cr.P.C. But if it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under subsection (2) of section 497, Cr.P.C.
To ascertain the reasonable grounds it would be appropriate to see whether a prima facie case is disclosed against the accused for which the F.1:R., the statements of the prosecution witnesses recorded under section 161, Cr.P.C. And the other incriminating material brought by, the prosecution or any defence plea is taken into account. Reference in this regard is made to a case reported as Manzoor and 4 others v. The State (PLD 1972 SC 81), wherein the following observations were made:- -- ' As repeatedly held by this Court, bail in non-bailable cases is a matter within the discretion of. The.
Courts, which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether- such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence.
8. The first question to be considered s as, to whether the Court can assess the incriminating material and evidence brought by prosecution or there are restrictions on Court's power to assess the evidentiary value of the material placed before it. The aforesaid question came under consideration before the Supreme Court of Pakistan in a case reported as Khalid Javed Gillan v.
The State (PL,D 1978 SC 256) `wherein the - following observations were made:- "-It follows that the Court has to 'make a tentative assessment of its evidentiary value in order to decide a bail application, the more so, as the section does not in the terms contain any .Restriction on the Court's power to assess the evidentiary value of the material produced before it. But the section is a part of a Code under which the guilt or innocence of the accused has to be determined in, the light of the evidence which is produced when the trial of the accused' begins, therefore, whilst deciding a bail application, the Courts, and especially the superior Courts must refrain directly' or indirectly, from giving any conclusive finding on the question of the guilt or intocence of the accuses and it may be that an application for bail may fail, if it cannot be dealded without an elaborate sifting of evidence. But because the Court must not prejudge the case of the prosecution or of the accused, this does, not mean that the Court can shrike its obligation to decide the application for bail before it, and that application can only be decided by Courts belief about the material produced before it."
' Similar proposition also came before this Court in a case reported as Zahid Paris v. The State (1995 SCR 104) wherein it was 'laid down as under:--- "--It is neither permissible nor desirable to make a deep scrutiny or minute study of the evidence on record. The Courts of law are supposed to make a tentative assessment of the F.I.R, statements of P.Ws recorded under section 161 Cr.P.C, the recovery evidence, the defence plea if any, and other circumstances and facts of the case and to reach a conclusion whether in the given circumstances the accused are entitled to concession of bail or not."
9. In the present case the appellant is nominated in the F.I.R. A specific allegation of causing firearm injury is alleged. The complainant's version is supported by the prosecution witnesses and is also corroborated by the medical evidence along with. The recovery of an empty from the spot.
Theretore, it can be held that a prima facie case existed against the accused-appellant.
10. The trial Court allowed the bail on the ground of further inquiry without mentioning the facts constituting further inquiry. Similarly District Criminal Court failed to apply its mind towards the .Legal aspect of the case while regarding the case one of further probe. The requirement of aw is that the Court has to arrive at a conclusion that there are no reasonable grounds connecting the accused with the offences and there are sufficient grounds for further probe. Both the subordinate Courts thus gave their findings against law particularly touching the deep merits of the case.
Similar Propositions came before the Supreme Court of Pakistan in a case reported as Najeeb Gull v. Khalid Khan and another (1989 SCM R 899), wherein it was held as under:--- "Bail as of right under section 497 (2) is possible only when a finding is rendered that there are no reasonable grounds for believing that the accused had committed the particular offence".
11. The trial Court as well as the First Appellate Court while granting the bail touched the deep merits of the case which could not be made basis for allowing the bail at that stage of the case. By now it is a settled proposition of law that detailed merits of the case are not gone into at bail stage.
Reliance in this regard may be placed on a case reported as Sanatta and another v. The State (1982 SCM R 208). The Supreme Court of Pakistan gave following verdict:- "Before us, it was submitted by the counsel for the petitioners that the case of Nishan was indistinguishable from the one of the petitioners and by parity of reasoning they should also be admitted to bail. We do not agree. The perusal of the record shows that Nishan was assigned no overt act in the F.I.R and this position is supported by the finding of both the Courts below to the same effect, whereas the petitioners have been ascribed specific acts. As for the argument of the learned counsel, based upon the dicta in PLD 1972 SC 81, that contradictory versions as to the specific roles assigned to the accused necessitated further enquiry into the guilt or otherwise under section 497 (2) of the Cr.P.C. Entitling the petitioners to the grant of bail, and that in the instant case the learned Judge of the High Court has narrowed Own the scope of section 497 (2), Cr.P.C, we consider that the above-cited ruling does not help the petitioners. The dicta in criminal cases have to be read in the Tight of the peculiar facts and circumstances of each case, and the circumstances in the present case are not similar to the facts and circumstances of the above- cited case. In the instant matter the F.I.R assigns specific roles to the petitioners, and the fact that the medical report does not agree with the account of eye-witnesses of the specific blows delivered by the respective petitioners might well be a relevant factor at the trial, yet at this stage this aspect of the matter cannot be gone into very deeply. Moreover, as pointed out by the learned Additional sessions Judge in this order dated 26-1-1977, the incriminating weapons were recovered from the petitioners, and according to the report of the Chemical Examiner they were also found to be stained with blood. He also pointed out that apart from this, sections 148 and 149, P.P.C. Also prima facie, stood attracted to the facts of the case."
12. It was contended by the learned counsel for the appellant that the prosecution had so far not produced any witness but study of record reveals that prosecution has produced complainant and other witnesses namely, Mehtab Ahmed and Muhammad Azad, but we refrain to make any comment on the evidence so produced as the evidence of prosecution witnesses was recorded after the cancellation order passed by the Shariat Court particularly to avoid any prejudice to any of the parties.
13. It was contended by the learned counsel for the respondents that the offences charged against the accused-appellant attracted prohibitory clause of subsection (1) of section 497 Cr.P.C. As such it was claimed that the case was not covered under any of the provisos mentioned in the aforesaid section. Therefore, in any case the accused could not be enlarged on bail. The learned counsel relied upon a case reported as Muhammad Bashir and 3 others v. Manzoor Ahmad Khan (2001 YLR 2955) in support of his contention. Ch. Ali Muhammad, the learned counsel for the appellant, on the strength of a case reported as Muhammad Arif v. The State (1998 PCr.LJ 149) argued that the prohibitory clause of section 497 Cr.P.0 is not attracted. Therefore, he claimed the concession of bail. It may be mentioned that this Court in a case of Muhammad Bashir and 3 others, referred to above, has categorically laid down that the offences attracted the prohibitory clause of section 497 Cr.P.C. It may be clarified that even for the sake of arguments if the prohibitory clause is not attracted even then the clause involved in the non-bailable offences is not entitled as of right to be enlarged on bail as held in the citation reported as Muhammad Arif v. The State referred to by the learned counsel for the appellant.
14. It may be mentioned that if discretion is wrongly exercised by any Court the same can be interfered with by the appellate or revisional Court. The learned Judge of the Shariat Court keeping in view the facts does not warrant any interference by this involved in the case passed a legal order which Court. We do not find any merit, in the appeal which therefore is dismissed. However, the appellant may renew his application before the trial Court if he feels so advised on fresh grounds. Consequently the interim bail allowed by this Court in Chamber stands cancelled. The law cited by the learned counsel for the parties which did not apply squarely on the facts of this case was not discussed.