CHAUDHARY MUHAMMAD TAJ. J.-----This appeal has been filed against the judgment and order of the Shariat Court of Azad Jammu and Kashmir passed on 13-3-2002, whereby the orders allowing pre-- arrest bail to respondents Nos. 1 to 3 by the District Criminal Court, Bhimber were affirmed.
2. The facts precisely stated are that the appellant lodged First Information Report No. 193 of 2001 at Police Station, Bhimber against the respondents and another accused (not before the Court) under sections 337-A. 324, 341 and 34, A.P.C. An offence under section 13 of Arms Act, 1965 was also attributed. The respondents applied for bail before arrest which was allowed vide orders, dated 11- 1-2002 and 29-12-2001. A revision petition filed with the Shariat Court for cancellation of bail allowed by the District Criminal Court, Bhimber was dismissed. Hence this appeal.
3. Ch. Muhammad Afzal, the learned counsel for the appellant, raised the following points in support of the appeal:-- (i)That a strong prima facie case existes against the accused-respondents as disclosed in the First Information Report, statements of the prosecution witnesses recorded under section 161, Cr.P.C. And recoveries of incriminating material; (ii)that the accused-respondents are ,involved in heinous offences as such the anticipatory bail could not be allowed to them unless it is shown that the case was concocted and was registered with mala fide intention.
(i.e)that the allegation of firing was attributed to the accused-respondents as such they shared common intention with the accused whose firing injured the complainant. Therefore, none of the accused is entitled to the concession of bail; (iv)that the judgments of the trial Court and the Shariat Court are against the accepted principles of law governing the bail matters; and (v)that the recoveries of weapons of offence are yet to be made from the accused-respondents.
The learned counsel for the appellant referred the following authorities in support of his contentions:--
(1) Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another (1997 PCr.LJ 1).
(2) Muhammad Sajjad v. The State (1997 PCr.LJ 872).
4. Ch. Muhammad Azam Khan, the learned counsel for respondents Nos. 1 to 3 while controverting the arguments addressed on behalf of the appellant, argued in the following manner:-- (i)That there was no prima facie case against the accused-respondents. The case required further probe as such was of further inquiry; (ii)that there were certain features which suggested that the case was doubtful as, according to First Information Report, only one fire was alleged but the police recovered five empties of 12 bore gun. Similarly, the allegation of firing was attributed to the accused-- respondents but there was no cogent evidence that the accused-respondents were present at the spot; and (i.e)that both the Courts below, District Criminal Court and the Shariat Court, after careful consideration of the facts and law proceeded to allow the bail to the respondents. It was also added that weight is to be given to the opinion of the trial Court. This Court rarely interferes in the orders passed by the Court below unless those have been recorded arbitrarily and capriciously.
The learned counsel relied upon the following authorities in support of his contentions:--- (1)Muhammad Miskeen v. Muhammad Ayub (1992 SCR 379) (2) Muhammad Yunus v. Malik Muhammad Nawaz and 5 others (1997 SCR 125).
5.Sardar Abdul Razzik Khan, the learned Additional Advocate-General, did not address the arguments. However, he produced the record.
6. We have heard the learned counsel for the parties and also gone through the record carefully.
The trial Court allowed pre-- arrest bail to the accused-respondents on the ground that the matter in view of the facts and circumstances was of further probe. It was also held that according to the police record the accused-respondents were not found present at the spot in addition to filing of affidavits of four respectable persons in support of the aforesaid fact. The learned Chief Justice in the Shariat Court also reached to the same conclusion and thus the order passed by the Court below was affirmed.
7. After giving careful thought the following important features are noticed:-- (1)That the allegation of causing fire-arm injury was only attributed to accused Mehdi Khan who is not before the Court.
(2)That according to the First Information Report the only allegation of firing a single shot with 12 bore gun was attributed but the police recovered five empties from the spot. Similarly, five empties of 222 gun were recovered alongwith recovery of five empties of Kalashnikov from the spot.
(3)That both the Courts below keeping in view of the police diaries arrived at the conclusion that there was no cogent evidence suggesting the presence of accused-respondents at the spot alongwith the fact that four respectable persons filed their affidavits in support of the aforesaid fact before the Investigating Officer.
(4)That challan has been submitted before the Court.
8. The learned counsel representing the appellant laid a stress that all the respondents shared common intention with the accused Mehdi Khan who injured the complainant with his fire-arm as such were not entitled to the concession of bail. It may be stated that under sections 497 and 498, Cr.P.C. Any person accused of any non-bailable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life unless the case is covered by any of the provisos of subsection (1) of section 497, Cr.P.C. The accused involved in a non-bailable offence shall be released on bail at any stage of the investigation, inquiry or trial, as the case may be, if there are not reasonable grounds for believing that. The accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt under subsection (2) of section 497, Cr.P.C.
9. In the present case the allegation of firing against the respondents requires further probe in view of the circumstances particularly in the light of observations made by the trial Court as well as the Shariat Court by holding that their presence at the spot- was doubtful. Even otherwise, it is yet to be seen in the trial whether the allegation rings true in the circumstances when all the accused persons were firing and only one fire hit the leg of the complainant specially when fifteen empties from different weapons were recovered.
10. The case-law referred to by the learned counsel for the appellant with its distinct facts is not applicable to the case in hand. The authority reported as Muhammad Sajjad v. The State (1997 PCr.LJ 872) deals the bail matter in offence of Zina. The learned Judge in the Lahore High Court arrived at the conclusion that in such an offence where the accused was a desperate person taking law in his own hands alongwith the fact that no circumstances existed that the case was registered with malice or ulterior motive harassing and humiliating the accused, the bail earlier granted was re-called. The other authority reported as Rana Muhammad Safdar-v. Gulzar. Ali alias Papoo and another (1997 PCr.LJ 1) was also of no avail to the appellant as the Lahore High Court in a murder case held that the principle of vicarious liability can be looked into at bail stage if from the F.I.R. The accused appears to have acted in pre-concert or shared the common intention with his co-accused who caused fatal injury to the deceased.
11. By now it is a settled proposition of law that the bail allowed by the Court below cannot be cancelled on the ground of recovery to be made when challan has already been submitted in the Court of law. Reliance in this regard is placed on a case reported as Muhammad Miskeen v.
Muhammad Ayub (1992 SCR 379) wherein it was laid down as under:--- " ---------------------------------.. During the course of arguments it came to our notice that the challan against the respondent has already been filed in the Court. Obviously, the accused cannot now be handed over to police for custody on the ground that he is required by the police for the completion of investigation . . . . .. "
While dealing with the question of pre-arrest bail this Court in a case reported as Muhammad Yunus and another v. Malik Muhammad Nawaz and 5 others (1997 SCR 125) laid down as under:-- "12. Now we advert to the fundamental principles relating to the pre-arrest bail matters. In a famous reported case titled Murad Khan v. Fazal-e-Subhar, (PLD 1983 SC 82) the necessary conditions for grant of pre-arrest bail have been laid down. One of the main considerations for the grant of bail is whether the prosecution is motivated by malice so as to cause irreparable injury to a citizen's reputation and liberty and there should be apprehension of harassment and undue humiliation by means of unjustified arrest."
The Court further observed at page 137 of the report as below:----- " ---------------------. We are not oblivious of the fact that in this part of the country rival political. Factions do exaggerate the role played by their opponents and implicate the innocent people and widen the net more and more close to their political opponents. Thus some of the pre- conditions for grant of anticipatory bail in the present case, in our view, are prima facie satisfied . . . .. .. ... . "
12. It may also be stated that Supreme Court normally does not interfere in the discretion exercised by the Shariat Court unless the same is shown to be perverse or against law. A Reference may be made to the case reported as Muhammad Miskeen v. Muhammad Ayub (1992 SCR 379), wherein it was held as under: "This Court does not interfere in the discretion exercised by the Courts below in bail matters until and unless the same is shown to be pervers or clearly violative of the statutory provisions. No such eventuality exits in the present case."