' MUHAMMAD YUNUS SURAKHVI, C.J.--- This appeal has been directed against the judgment passed by the Shariat Court on 30-4-2002, whereby respondent Ghulam Hussain Shah was released on bail
2. The necessary facts, giving rise to the present appeal, are that the complainant, Dayam Mir, lodged a report on 27-3-2002 at 7-30 p.m. At Police Post Rara, on the basis of which a case was registered at Civil Secretariat Police Station Muzaffarabad on 28-3-2002 at about 12-35 a.m. It was alleged that the accused-respondent was raising pillar on the back side of the house of his cousin, Yousuf Mir the complainant reprimanded him not to raise pillar in the thoroughfare but he took it as his disgrace. On 27-3-2002 at about 7-30 p.m. He alongwith Qayyum Mir, Yaseen Mir, Ch. Feroze Din, Yousuf Mir and Altaf was standing at the place of occurrence. The accused-respondent alongwith Altaf Shah, Ejaz Shah, Haleem Shah and Faisal Shah, co-accused, by forming an unlawful assembly with a common object launched an attack with fists and kicks upon his brothers Qayyum Mir and Yaseen Mir. The accused-respondent was armed with a hammer who, with an intention to kill, inflicted an injury of hammer on the head of Qayyum Mir who fell down and became unconscious.
The other accused have been beating the .Members of the complainant party. The persons present on the place of occurrence intervened and got them released. On this a case under sections 324, 147, 148 and 14-9, A.P.C. Was registered.
3. After the accused persons having been arrested, all of them except Faisal Shah moved an application for their release on bail before the Additional Tehsil Criminal Court, Muzaffarabad which was allowed to the-accused except Ghulam Hussain Shah, respondent No,1 herein. Ghulam Hussain Shah, accused-respondent, approached the District Court of Criminal Jurisdiction, Muzaffarabad but the concession of bail was declined to him by the said Court vide its order dated 8-4-2002. Against the order of the District Criminal Court, Muzaffarabad, the accused-respondent applied for his bail before the Shariat Court which was allowed to him vide its impugned order dated 30-4-2002. It is the afpresaid order of the Shariat Court which is the subject-matter of present appeal.
4. Arguing the case on behalf of the complainant-appellant, Mr. Muhammad Noorullah Qureshi, the learned counsel, vehemently submitted that the accused-respondent has been released on bail by the Shariat Court without any cogent reason and against the settled principles relating to grant or .Refusal of bail tatters. The accused-respondent has been named in the F.I.R. And a specific role has been attributed to him. The prosecution witnesses fully support the contents of F.I.R. Given by the complainant. The learned counsel contended that the respondent inflicted an injury on the head of Qayyum Mir with hammer clearly having the intention to do away with his life. The learned counsel also submitted that the medical evidence fully corroborated the prosecution story; according to which the scalp bone of the injured person was broken. The learned counsel contended that the prosecution has a prima facie case against the accused-respondent who is involved in a non-bailable case which provides the sentence up to 10 years, therefore, the discretion exercised by the Shariat Court by releasing the respondent on bail is perverse, capricious and against the settled principles relating to bail matters. In support of his arguments the learned counsel has relied upon the cases reported as Jamaluddin v. State and another 1999 PCr.LJ 973, Ali Qadir v. State 1998 PCr.LJ 516, Kazim Hussain v. State and another 2000 PCr.LJ 793 and Ghulam Rasool v. State 2000 YLR 1693.
5. Controverting the arguments raised by Mr. Muhammad Noorullah Qureshi, the learned counsel for the accused-respondent, Kh. Farooq Ahmed, has argued that a false case has been registered against the accused-respondent on the basis of previous animosity. He has further argued that the prosecution witnesses are closely related to complainant and the occurrence took place in a thickly populated area where so many independent witnesses were available but none of them has been cited as a prosecution witness. The learned counsel further, contended that the injured person has been caused only one blow of hammer and the accused-respondent did not repeat the second blow, as such it could not be said at this stage that the accused had any intention to cause the death of the injured person rather the circumstances show that he had the intention to cause injury to the brother of the complainant. The learned counsel pointed out that all the other accused have been released on bail and the Shariat Court rightly allowed the concession of bail to the respondent keeping in view the rule of consistency. The learned counsel submitted that according to the facts and circumstances of the case it was yet to be determined as to whether the intention of the respondent was to launch a murderous attack or to cause an injury, therefore, the Shariat Court has committed no error in releasing the accused on bail. The learned counsel submitted that the hammer which was used by the respondent for inflicting' injury on Qayyum Mir was of a small size (Hathorri) and the injury was not sufficient in the ordinary course of nature to cause the death of injured person. The learned counsel submitted that the discretion thus exercised by the Shariat Court suffered from no illegality or infirmity.
6. Mr. Riaz Navid Butt, the learned Additional Advocate-General, fully supported the arguments advanced by Mr. Muhammad Noorullah Qureshi, the learned counsel for the complainant- appellant.
7. After hearing the respective contentions of the learned counsel for the parties and carefully examining the relevant record with the assistance of the learned counsel for the parties, it may be stated that the Shariat Court has clearly committed an illegality by allowing the concession of bail to the accused-respondent, Ghulam Hussain Shah. The Shariat Court while allowing the concession of bail to the accused-respondent observed that the prosecution did not produce police record in the Court despite the fact that the learned Additional Advocate-General undertook to produce the same, as such the revision petition is disposed of without examining the police record. It was further observed by the Shariat Court that the perusal of the impugned order shows that the ad interim bail of co-accused Faisal Shah has been confirmed by the Court below whereas the other accused Altaf Hussain Shah and Ejaz Hussain .Shah were also released by the Additional Tehsil Criminal Court, Muzaffarabad. The Shariat Court also opined that the perusal of F.I.R. The order of Additional Tehsil Criminal Court dated 9-4-2002 and the title of the impugned order dated 18-4-2002 reveals that a case against the accused-petitioner (respondent herein) alongwith other accused persons was registered under sections 324, 147, 148 and 149, A.P.C.
Whereas the Court below has opined in para.11 of the impugned order that the case has been registered under sections 324 and 337, A.P.C. Thus the Court below arrived at the conclusion that 10 years' punishment has been provided under section 324, A.P.C. And 7 years alongwith 10 per cent.
Diyyat has been provided for the offence under section 337, A.P.C. And after giving it a joint effect the bail was refused to the accused-petitioner (respondent herein). The Shariat Court further opined that the alleged weapon of offence is a hammer and it has not been alleged by the complainant that the accused-petitioner (respondent herein) repeated the attack by inflicting the hammer blow therefore, according to peculiar facts and surrounding circumstances of the case, it is yet to be determined as to whether the intention of the accused was to inflict an injury or to launch a murderous attack upon the complainant. The petitioner (respondent herein) is behind the bars for about a month and challan has also been presented against him before the trial Court, therefore, he is no more required for investigation. Thus, his further stay in the lock-up will not serve any suitable purpose. The learned Shariat Court also observed that all the accused launched a joint attack with common intention and started beating Qayyum Mir with fists and kicks. The respondent herein was attributed infliction of injury with a hammer on the head of Qayyum Mir whereas the other accused persons remained busy in beating him. It is admitted on the record that except the petitioner (respondent herein) all other accused persons have been released on bail. Therefore, the rule of consistency demands that the concession of bail may also be extended in favor of accused-petitioner (respondent herein).
8. The aforesaid observations made by the Shariat Court, in our considered view, seem to be absolutely artificial and superficial for the purpose of releasing the accused-respondent on bail in such a heinous offence which was alleged to have been caused by the accused-respondent. The accused-respondent and other accused cannot be placed at par or their role cannot be of equal nature, therefore, the principle of consistency has no application whatsoever in this case. The role attributed to the accused-respondent, Ghulam Hussain Shah, is that he caused injury with a hammer, in order to cause death, on the head of injured person, Qayyum Mir, which is the most vulnerable part of the body. The other accused are attributed only the role of causing injuries with fists and kicks and they were not allegedly armed with any weapon. We have examined the medical report which fully corroborates the case prosecution to the extent of injury on the head of Qayyum Mir has to the following effect:- "Bruise with swelling over left parietal area of the head with depressed fracture of left parietal bone.
Injury is Shajja-eHashima. The kind of weapon used is hammered blunt."
9. The learned counsel for the accused-respondent half-heartedly contended that the weapon which was used in the commission of offence was not an iron hammer but is a Mallet (Hathorri).
This contention of the learned counsel for the respondent is factually incorrect. The weapon of offence is an iron hammer which was recovered at the instance of the accused on 31-3-2002 in presence of marginal witnesses, Abdul Latif and Shahin Ahmed, vide recovery memo. Prepared by the S.H.O., Police Station Civil Secretariat. Even in the challan form the weapon of offence is shown as iron hammer with a handle. For our own satisfaction we also sent for the weapon of offence and it is found to be an iron hammer and if an injury is inflicted with the same, it has the capacity o cause the death of any person in the ordinary course of nature. Therefore, it belies the contention of the learned counsel for the respondent that the hammer was not used in the commission of offence but only Mallet (Hathorri) was used which is of a very small size.
10. The contention of the learned counsel for the accused-respondent is also incorrect that all the four eye-witnesses are closely related to the injured person. No doubt these witnesses are closely related to Qayyum Mir, the injured person, but it is wrong to suggest that no independent witness has been cited by the prosecution. A perusal of the challan will show that Ch. Feroze Din and Yousuf Mir are independent witnesses who also saw the occurrence and they were duly cited by the prosecution as witnesses.
11. As stated earlier, the Shariat Court has advanced very strange reasons for releasing the accused on bail such as that the accused never repeated further infliction of blow by hammer and that the accused is behind the bars for about a month and challan has also not been presented against him and that he is no more required for further investigation. These are hardly the grounds for releasing an accused on bail who is allegedly involved in a case which provides the punishment of 10 years or above in an offence.
' In case reported as Jan Muhammad v. The State 1971 SCM R 351, Mr. Justice Hamood-ur-Rehman, who spoke for the Court observed at page 352 as follows:-- "In the present case the injuries on the deceased were by a blunt weapon. Two were on his head and the third was on his arm. All of them, according to medical report, were grieve injuries on the head were scribed by all except one prosecution witnesses to the petitioner and his brother Shah Muhammad. In these circumstances it can hardly be said that the commitment was manifestly unwarranted or that there were no reasonable grounds for believing that the petitioner was guilty of an offence punishable with death or transportation for life. Whether the witnesses should be believed or not and whether the plea of self-defence set up by the accused should be accepted or not will be for the trial Court to decide. Such disputed questions of fact cannot be decided in the bail application. At this stage the Court is only concerned with determining as to whether upon the material placed before the Court there are reasonable grounds for believing that the petitioner is guilty of having committed such non-bailable offence as is punishable with death or transportation for life, if that material remains unrebutted."
' In a case reported as Ghallo v. The State 1986 PCr.LJ 700 it was observed that from the plain reading of provision of law (section 326, Penal Code) it is very much clear that no weapon at all has been mentioned in section 325, P.P.C. And that whoever causes grievous hurt by any instrument, which used as weapon of offence is likely to cause the death, would be guilty of an offence punishable under section 326, P.P.C. Since Dang is an instrument which used as a weapon of offence is likely to cause death, therefore, .Grievous injury caused by it would not fall within section 325, but would definitely be punishable under section 326, P.P.C.
' In a case reported as Muhammad Siddique and another v. The State PLD 1986 Sh.C. (AJ&K) 56 it was observed that the record showed that the deceased had died due to injury caused by the accused on his head with a stick. The said injury was described as dangerous in the medical report. The accused knew that the injury was likely to cause death of the deceased. The bail was thus refused in the circumstances.
12. In the light of what has been stated above, we accept the appeal and set aside the impugned judgment passed by the Shariat Court dated 30-4-2002 'thereby cancelling the bail of accused:respondent. The accused-respondent, Ghulam Hussain Shah, shall be taken into custody and sent to judicial lock-up. However, the accused-respondent will be at liberty to move afresh for his release on bail after recording the statements of eye-witnesses and the Medical Officer.
Bail cancelled.