' KHAWAJA MUHAMMAD SAEED, J.--- This appeal is directed against an order passed on 17-8-2001 by the Shariat Court of Azad Jammu and Kashmir whereby the bail allowed to the appellant by the District Court of Criminal Jurisdiction, Muzaffarabad was set aside.
2. The facts forming the background of the present appeal briefly stated are that an occurrence took place in the area of Police Station Leepa on October 17, 1996. On the same day a report under sections 302, 324, 147, 148 149 and 34, A.P.C. Was lodged by the complainant, respondent No,2 herein, in which he stated that the complainant and the accused party are involved in a litigation regarding_ the partition of their lands which is awaiting disposal in a Civil Court. According to the complainant his father, Abdul Rehman, in that litigation was acting as an attorney of the complainant party. Both the parties have obtained stay orders against each other from the Civil Court. According to the F.I.R. Despite the issuance of stay order, on October 17, 1996 Sarwar Khan alongwith appellant Nazir Ahmed Khan and other co-accused, mentioned in the report, trespassed on the disputed land comprising Survey No,591 and started ploughing the same. The father of complainant, Abdul Rehman, reprimanded the accused party and refrained them from ploughing the disputed piece of land upon which appellant Nazir Ahmed Khan, Abdul Majid, Muhammad Naseer Khan, Muhammad Shafique, Muhammad Ashraf, A'shfaque Khan, Sarwar Khan, Arsalah Khan, Abdul Qayyum, Abdul Latif, Mst. Taj Begum, Mst. Rafique Begum, Mst. Tahira Begum and Mst.
Zuhra Begum, fourteen in number, launched an attack upon the father of complainant in the land which belonged to one Hidayatullah. According to the F.I.R. The accused persons were armed with sticks and mattocks. The complainant alongwith his brother, Rehmat Khan, rushed to the scene of occurrence to rescue their father. The appellant in the meantime inflicted an injury with the mattock he was carrying on the head of Rehmat Khan, the brother of complainant. Resultantly the victim fell down. The accused-appellant continuously started hitting upon his body with the handle of mattock whereas the co-accused Naseer Khan, Abdul Majid and Muhammad Shafique, caused injuries to Abdul Rehman, father of the complainant, with sticks and mattocks which were in their hands. It is further disclosed in the F.I.R. That Abdul Qayyum, Abdul Latif, Ashraf Khan, Ashfaq Khan, Mst. Taj Begum and Mst. Rafique Begum caused injuries on the person of complainant with their sticks. The occurrence was witnessed by Ibrahim Khan, Aziz-ur-Rehman, Inam Khan and Arshad Khan. The brother of complainant, namely, Rehmat Khan, died on October 18, 1996, the very next day of the incident. In this case the accused persons were sent to face trial before the District Criminal Court and statements of about four eye-witnesses have been recorded so far. Except other accused persons, the accused-appellant was refused bail by the trial Court, the Shariat Court as well as by this Court previously. However, subsequently, he was allowed bail by the trial Court on the ground that the accused party has got a counter-version as the complainant party has also been made answerable in the counter-case about the same occurrence before the same Court.
3. Before proceeding further it appears useful to mention in detail the counter-F.I.R. Lodged on October 18, 1966 by Sarwar Khan, one of the accused, against Abdul Rehman, Rehmat Khan, Sarwar Khan, Riazur-Rehman, Ejaz Khan, Muhammad Ilyas and Aziz-ur-Rehman, complainant party, stating therein that on October 17, 1996 at about 4-30 p.m. He was engaged in sowing the seeds of wheat in his land bearing Survey No,591 when he was attacked by the above-named persons.
According to him the deceased Rehmat Khan was armed with a .12 bore gun while the accused Riaz-ur-Rehman was carrying a revolver with him. Both these accused persons started firing with the fire-arms which they were carrying and resultantly his son Naseer Khan and a bull were injured.
He further disclosed in the F.I.R. That the other accused persons were armed with sticks. During the scuffle, according to the complainant the gun belonging to deceased Rehmat Khan was snatched by him. The accused party on account of this reason ran away from the scene of occurrence. He also claimed to have received injuries during the scuffle with the accused party. On the basis of this F.I.R. The complainant party is facing trial in a case under sections 324, 147, 148, 149, 337 and 34, A.P.C. Before the Court of competent jurisdiction on the ground that they wanted to dispossess Sarwar Khan and others from the disputed land in order to obtain its possession by force.
4. Mr. Ghulam Mustafa Mughal, the learned counsel for the accused-appellant, argued that no doubt in the first round of litigation the bail was declined to his client but the same was allowed to him in the light of challan which was submitted before the competent Court by the police in the counter-F.I.R. Wherein the Investigating Agency has drawn the conclusion that the accused party in fact wanted to dispossess the complainant Sarwar Khan forcibly from the disputed land in order to take its possession through illegal and coercive method. In the light of this counter-version, the learned trial Court was justified in law to hold the case of the appellant one of the further inquiry. He further added that even from the statements of prosecution witnesses recorded by the trial Court it becomes clear that there are material discrepancies in the statements of prosecution witnesses and on account of this reason their evidence cannot be relied upon and the same may give rise to benefit of doubt in favour of the accused party. He further argued that even from the statement of Abdul Rehman, P.W., the defence version finds support, as disclosed in the counter-F.I.R. According to him the learned Judge in the Shariat Court has committed an error in law while considering the judgment of this Court recorded in the previous round of litigation or the refusal of bail to the appellant. While elaborating his point of view, he argued that previously the bail was declined to the appellant on the ground that at that time there was mere counter-version on behalf of the accused party and no challan was filed before the trial Court. After the filing of fresh challan against the complainant party in the counter-F.I.R. By the police a fresh ground has become available to the appellant. He in support of his contentions relied upon a case titled Shabir Hussain v. The State PLD 1982 SC (AJ&K) 100 wherein it was held that bail was previously declined to the accused party when no challan was presented before the trial Court in the counter-version. After the filing of the challan in the counter-F.I.R. The accused in that case moved the trial Court for his release on bail. However, the bail was refused to him on the ground that the same had not been moved on fresh ground. The judgment was maintained by the High Court. However, the Supreme Court held that after filing of challan in the counter-case a fresh ground has become available to the accused person, therefore, the District Criminal Court was directed to decide the application of the accused within fortnight. The learned counsel also relied on another case titled Muhammad Bashir and another v. The State PLD 1983 SC (AJ&K)
8. In this case it was held that the bail is not to be refused as a punishment nearly on the allegation that a person has committed an offence punishable with death or transportation for life unless reasonable ground appear or exist to disclose their complicity. In this case the bail was allowed to accused on the ground that the genuineness of prosecution case is still to be tested by the trial Court in view of conflicting stands of the parties.
5. While opposing the appeal, it was argued by Syed Ejaz Ali Gilani, the learned Assistant Advocate- General appearing on behalf of the State, that the learned Judge in the Shariat Court was justified in law in setting aside the bail order passed by the trial Court in favour of the appellant. According to him all the prosecution witnesses, so far examined by the trial Court, have prima facie proved the case of the prosecution. According to him all the points which were given weight by the trial Court in allowing bail to accused-appellant were discussed in detail by this Court previously and in the light of peculiar facts of the case the accused-appellant who is responsible for the murder of a young man was declined concession of bail. He further argued that the mere registration of a case or submission of a counter-challan is not a sufficient ground for enlarging the appellant on bail.
According to him even if this case is one of free fight between the parties even then every participant is responsible for his conduct. The question of aggression in such circumstances becomes immaterial and determination of such question, as was done by the trial Court, in a bail matter was premature. The learned counsel relied on a case reported as Ghulam Muhammad v.
Khan Muhammad and others 1975 PCr.LJ 604 wherein the bail was claimed before the High Court as of right on the ground that the complainant party was on bail in a cross-case, therefore, accused were also entitled to bail as of right. This view was not accepted. The accused person, in the light of his part attributed to him in the F.I.R. Was refused the concession of bail. The learned counsel also referred to another case reported as Sardar Khan and others v. The State 1983 PCr.LJ
292. In this case bail was sought in a case under sections 302, 307, 148 and 149, Penal Code on the ground that the accused party had also got a cross-version. However, in the light of facts of the case in which the bail was sought, the High Court rejected the bail application of four petitioners therein on the ground that they had played active role in the occurrence and admitted two persons to bail on the ground. That the question of their vicarious liability needed further inquiry as they had not caused any injury to the deceased.
6. We have considered the respective arguments of the learned counsel for the parties and have gone through the record of the case. In a murder case normally the bail is refused to a person who is prima facie found involved in the murder of a human being. The bail is allowed only when there are reasonable grounds for believing that the accused was not guilty of the charge he is made to face or that his act requires detailed inquiry as such his case does not come within the ambit of prohibitory clause of section 497, Cr.P.C. In criminal cases the matter of bail is to be decided with due care and caution in the light of matrial collected by the Investigating Agency during the investigation. In the present case when in the previous round of litigation the question of bail of appellant was under consideration before this Court, the counter-version was considered by this Court but in the light of part attributed to accused-appellant he was not allowed the concession of bail rather it was observed as follows:-- "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."
After passing of the judgment of this Court, the trial Court has recorded statements of four witnesses. At the stage of bail the Courts are not expected to enter into the deeper appreciation of evidence available on record but all the same the Courts make a tentative assessment of the relevant material, i,e, F.I.R., the recoveries made, the alleged statements of prosecution witnesses and other evidence and thereafter decide the matter one way or the other. The Appellate Courts are not expected to evaluate the evidence in such a manner which may prejudice the case of either party before the trial Court. Therefore, any observation recorded in a case related to a bail matter must be considered to the extent of bail only and not in the main case. The opinion expressed by this Court in its earlier judgment, therefore, shall be considered to the extent of bail matter of the appellant and not otherwise. In the present case, prima facie the accused-appellant is alleged to have inflicted the fatal injury on the head of Rehmat Khan which in the wisdom of medico-legal report was sufficient to cause his death. This allegation initially contained in the F.I.R.
Was prima facie supported by the statements of P.Ws. Recorded before the trial Court. In the instant case it is alleged by the prosecution that the complainant and deceased, Rehmat Khan, came at the place of occurrence to rescue their father from the accused party; initially he was not a party to the occurrence. In the light of these facts, the accused-appellant at this stage is not entitled to the concession of bail. The learned Judge in the Shariat Court was, therefore, justified in cancelling the bail of the appellant granted to him by the trial Court.
7. In view of above, finding no force in this appeal the same is hereby dismissed.
8. Alongwith the appeal an application was separately moved by the appellant seeking bail during the pendency of the appeal. As we have rejected the main appeal and have refused the concession of bail to the appellant, therefore, this application also stand dismissed.