MUHAMMAD YUNUS SURAKHVI, C.J.---The above titled both the appeals have been directed against the consolidated judgment of Shariat Court passed on 15-10-2002, whereby the revision petitions titled ' Muhammad Hanif v. Zulfiqar Ali Azad and another' and 'Nisar Ahmed v. The State' were dismissed and the other revision petition titled Muhammad Hanif v. Makhdoom Hussain and another' was accepted.
2. The necessary facts, giving rise to the present appeals, are that an F.I.R. Was lodged by the complainant, Mazhar Hussain, on 21-5-2001, at 8-30 p.m. At Police Station Islamgarh, stating therein that at about 19-30 p.m. He was attracted by an alarm at home from the road side. He reached the spot where he came to know that his brother-in-law, Muhammad Hanif son of Haji Noor Hussain, alongwith his daughter, Mst. Alina, was proceeding towards home by Motorcycle when some persons injured them seriously to kill them. Both the victims, in the state of unconsciousness, were brought to the Police Station with the help of co-villagers.
3. The motive behind the occurrence was stated to be that a few days back, Nisar Ahmad son of Muhammad Ayub and Muhammad Hanif, victim, had an altercation whereupon on the point of 'Churri' the accused Nisar Ahmed threatened Muhammad Hanif to be prepared to meet the dire consequences. The accused after preparation and with the connivance of some other accused persons injured the victims with an intention to kill them. On the statement of complainant, a case for offences under sections 337-A(1), (2), 337-F(1), (2), (3), (4), (6) and 34, A.P.C. Was registered and after necessary proceedings the victims were shifted to the hospital where the innocent girl, Mst.
Alina, aged three years, succumbed to her injuries on the very next day, i.e. 22-5-2001, whereupon the offence under section 302, A.P.C. Was added. It was alleged that Nisar Ahmed, Makhdoom Hussain, Mujtahid Hussain, Sain Zulfiqar Ali, Khushal Khan, Naib Hussain and Javed, accused, had committed the alleged offences. The accused persons namely Khushal Khan, Naib Hussain and Javed are still at large while the other persons except Nisar Ahmed and Makhdoom Hussain are on bail. The application for bail before arrest on behalf of Sain Zulfiqar Ali, accused, was accepted by the trial Court vide its order dated 4-10-2001. Through another order by the trial Court dated 25-4- 2002 the concession of bail was extended to Makhdoom Hussain and Mujtahid Hussain while through the same order the concession of bail was disallowed to the accused, Nisar Ahmed. These orders were assailed through revision petitions before the Shariat Court and the Shariat Court vide its consolidated judgment dated15-10-2002 cancelled the bail of Makhdoom Hussain accused and the order dated 25-4-2002 extending him the concession of bail by the trial Court was recalled.
Similarly vide the same order, the order disallowing the bail to Nisar Ahmed, accused, was maintained. The order granting bail to Sain Zulfiqar Ali was however, upheld.
4. The above titled two appeals have been filed one by Makhdoom Hussain for his release on bail whereas the other has been filed by Muhammad Hanif for cancellation of bail of Zulfiqar Ali.
5. In support of appeal filed by Makhdoom Hussain, Ch. Ali Muhammad, the learned counsel, vehemently contended that the whole of the prosecution case is full of doubts and a false case has been registered against the accused on the basis of previous grudge and animosity.
According to the learned counsel in the F.I.R. Lodged by Mazhar Hussain, none of the accused has been named, however, the motive behind the occurrence is stated to be an altercation between accused, Nisar Ahmed son of Muhammad Ayub, and Muhammad Hanif, a few days prior to the occurrence upon which Nisar Ahmad on the point of ' Churri' had threatened him that he would never spare him alive whenever he got the suitable occasion. Nisar Ahmed, accused, after conspiring alongwith other accused persons, has injured his brother-in-law, Muhammad Hanif and his daughter, Mst. Alina, for the purpose of causing death. The learned counsel submitted that it is strange enough that Mazhar Hussain, brother-in-law of Muhammad Hanif, the injured person, and close relative of Mst. Alina, who on the very next day succumbed to the injuries, did not state the details of occurrence to any of his relatives. However, on 26-5-2001 for the first time Mst. Said Bibi, the mother of Muhammad Hanif, got her statement recorded stating therein that her son Muhammad Hanif on the day of Friday went towards the gate of their house while taking out his motorcycle whereupon Nisar Ahmed son of Muhammad Ayub, resident of the village, whose house is situated in front of gate of their house, by bringing his motorcycle stopped it in the way and as such closed the passage. Muhammad Hanif told him to remove the motorcycle from the passage; upon this Nisar Ahmed on the point of ' Churri' threatened him that whenever he got the opportunity he would not leave him alive and will try to take him to task. Mst. Said Bibi and her daughter-in-law, Nahida Bibi, separated them from each other and the matter was settled. It is stated by Mst. Said Bibi in her statement that there had been serious litigation with Nisar Ahmed who on account of this litigation had serious enmity. Nisar Ahmed had killed her granddaughter, Mst. Alina and injured Muhammad Hanif seriously.
6. Then again on 3-9-2001 after a period of about three months and some days a supplementary statement of Mst. Said Bibi was recorded by the police wherein she stated that Muhammad Zaman, his first cousin, and Karam Hussain told her that they saw that Muhammad Hanif and his daughter were lying on the ground in an injured condition who were injured by Makhdoom Hussain, Nisar Ahmed, Javed, Khushal Khan and one other person whose father's name is Bostan. The grandfather of Nisar Ahmed had sent accused Mujtahid Hussain on the spot and warned not to kill Muhammad Hanif or his daughter. On this she and her daughter-in---law, Nahida Bibi, proceeded towards the hotel wherefrom it was revealed that the injured have been taken to Police Station. Mst.
Said Bibi alongwith her daughter-in-law reached the Police Station and then to the hospital and they were told that Muhammad Hanif has been taken to Rawalpindi whereas Mst. Alina has been admitted to hospital where she had expired. The police found a single injury on the head of Mst.
Alina (deceased), while Muhammad Hanif received five injuries; out of them one was on the head.
However, from the injury memos it transpires that there is a cutting on the time of occurrence. The time of occurrence was initially 8-30 p.m. But subsequently was shown as 7-30 p.m. However, the injury memo. Of Muhammad Hanif clearly shows that the time of occurrence is 8-30 p.m. But in the injury memo. The words 8-30 have been tampered to be shown as 7-30 p.m. The learned counsel pressed into service the submission that in 'Fard-Maqboozgi' at pages 28 and 29 of the file titled Muhammad Hanif v. Zulfiqar Ali Azad and another' the recovery of one Danda' at the instance of accused, Makhdoom Hussain son of Noor Hussain, has been made in presence of Muhammad Sajawal and Noor Ahmed son of Muhammad Alam, wherein Makhdoom Hussain, accused, has stated that the 'Danda' with which he injured Muhammad Hanif and Mst. Alina could be got recovered at his instance from his residential house beneath a cot (Charpai). So the same was recovered at his instance in presence of aforesaid marginal witnesses. Similarly Nisar Ahmed, accused, pointed out that the 'Danda' with which he caused injuries upon Muhammad Hanif and Mst. Alina could be got recovered by him and .In fact at his instance the same was recovered beneath a cot (Charpai) from a room of his residential house. The learned counsel pointed out that the police has been padding up the case of prosecution wherever it felt the necessity of the same.
The statements of Mst. Said Bibi, the mother of Muhammad Hanif and Mst. Nahida Bibi, the were of Muhammad Hanif, which were recorded on 26-5-2001 show it positively that Muhammad Hanif was going for Friday prayers a week prior to occurrence that in front of the gate of their house Nisar Ahmed, accused, had blocked the passage by putting up his own motorcycle. Muhammad Hanif reprimanded Nisar Ahmed to remove his motorcycle so that he could move his own motorcycle on which an altercation took place between them and Nisar Ahmed by pulling out a 'Churri' threatened him that he would not leave him alive whenever he found the occasion. Mst. Said Bibi, the mother of Muhammad Hanif, intervened and sent Muhammad Hanif for Friday prayers.
Afterwards Nisar Ahmed had seriously injured Muhammad Hanif and his daughter, Mst. Alina, who ultimately succumbed to the injuries. The motive of Nisar Ahmed is shown to be the enmity on account of dispute over a passage near the gate of their house.
7. Controverting the arguments raised by Ch. Ali Muhammad, the learned counsel for the appellant, Ch. Muhammad Azam Khan, the learned counsel for the complainant, contended that Sain Zulfiqar Ali is the bone of contention between the parties he being a candidate in the last elections of the Legislative Assembly was demanding votes from the victims and his relatives and for this purpose particularly went to England but he was refused to be supported by them. Thus he nourished a grudge in his mind and ultimately got Muhammad Hanif and Mst. Alina seriously injured by the accused and on the basis of said injury Mst. Alina ultimately passed away. The learned counsel contended that Mst. Alina, the victim of offence, was injured by Makhdoom Hussain, accused, therefore, he was not entitled to be released on bail. The learned counsel contended that Sain Zulfiqar Ali remained fugitive from law for about three months and therefore, was not entitled to the concession of bail. The accused-respondent, Nisar Ahmed, was directly nominated by the complainant in the F.I.R. Alleging therein that due to an altercation prior to the offence, the accused Nisar Ahmed had threatened Muhammad Hanif about the dire consequences. Accused Nisar Ahmed, with the connivance of some other persons, had injured Muhammad Hanif and his daughter with an intention to kill them. Karam Hussain and Muhammad Zaman, the witnesses produced by Muhammad Hanif, disclosed that on 21-5-2001 at Friday prayers, they were heading towards their destinations when they were attracted on the alarm of some female child; they reached the spot where five persons were beating Muhammad Hanif. Makhdoom Hussain inflicted injury with 'Soti' on the head of Mst. Alina. Nisar Ahmed was also armed with ' Soti' while the other three were without arms. Makhdoom Hussain and Nisar Ahmed threatened them to remain silent while the other persons made their escape from the scene. The 'Dandas' weapons of offence, have been recovered at the instance of Nisar Ahmed and Makhdoom Hussain in presence of Muhammad Yusuf, Dilawar Hussain, Noor Ahmed and Muhammad Sajawal, witnesses. In this view of the matter, according to the learned counsel, Makhdoom Hussain, accused, is not found entitled to be released on bail and similarly in the light of above discussion the concession of bail granted to Zulfiqar Ali may also be recalled.
8. Sardar Abdul Razik Khan, the learned Additional Advocate-General, seriously opposed the bail of Makhdoom Hussain and Zulfiqar Ali on the ground that prima facie both these accused are connected with the commission of offence of murder and murderous assault. Therefore, the concession of bail granted to Makhdoom Hussain may be recalled and similarly to Zulfiqar may also be cancelled.
9. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record. The learned counsel for the appellant, Ch. Ali Muhammad, is critic of the fact that the name of Makhdoom Hussain, one of the accused, has not been mentioned in the F.I.R. Moreover the time of occurrence is 7-30 p.m. But the same has been changed from 7-30 p.m, to 8-00 p.m. Mst. Nahida Bibi and Mst. Said Bibi are respectively the were and mother of Muhammad Hanif, whose statements were recorded on 26-5-2001. Mst. Nahida Bibi has stated in her statement that on the day of occurrence it was Friday. Her husband, namely, Muhammad Hanif, at about 12 O'clock when went out of his house, saw that Nisar Ahmed by putting up his motorcycle had closed the passage. Her husband asked him to remove the motorcycle from the place upon which the altercation ensued between them and Nisar Ahmed by pointation of 'Churri' threatened Muhammad Hanif that he would not leave him alive. She and her mother-in-law intervened and sent Muhammad Hanif for the Friday prayers. It is further stated by this witness that Nisar Ahmed seriously injured her husband and has murdered her daughter, Mst. Alina. It has also 'been stated that there is a litigation of Muhammad Hanif with Nisar Ahmed. To the similar effect is the statement of Mst. Said Bibi, the mother of Muhammad Hanif. She has also stated in her statement that between Nisar Ahmed and Muhammad Hanif there is a litigation regarding the passage.
10. Although the statements of Mst. Nahida Bibi and Mst. Said Bibi were recorded on 26-5-2001 but both of them who are respectively the were and mother of Muhammad Hanif do not attribute any part to Makttdoom Hussain, appellant herein. Even no motive is suggested towards the appellant, Makhdoom Hussain. Muhammad Hanif is the most important witness in this case in front of whose house the occurrence took place. Mst. Nahida Bibj is her were whereas Mst. Said Bibi is her mother.
Had he seen the occurrence and was injured seriously by the accused as the case was developed later on, he would have told the incident to his mother and his were. Even the previous enmity was shown against Nisar Ahmed, accused, who had altercation with Muhammad Hanif prior to the occurrence and while going towards offering Friday prayers Muhammad Hanif was threatened by Nisar Ahmed by showing Churri' that whenever he had the opportunity he would not let him alive.
The police found a single injury on the head of Mst. Alina as is evident from the First Information Report. The appellant, Makhdoom Hussain, was arrested by the police in August, 2001, who moved the bail application with two other accused, namely, Mujtahid Hussain and Nisar Ahmed, before the District Court of Criminal Jurisdiction, Mirpur on 19-10-2001 which was accepted on 25-4-2002 to the extent of appellant, Makhdoom Hussain, and one Mujtahid Hussain by the trial Court directing therein that if they furnish surety bond to the tune of Rs.5,00,000 to the satisfaction of any Magistrate 1st Class, Mirpur, they shall be released on bail in case they do not do the needful, they shall remain in jail. However, the bail application of Nisar Ahmed, accused, was rejected.
11. The aforesaid order of the District Court of Criminal Jurisdiction, Mirpur dated 25-4-2002 was challenged before the Shariat Court on 11-6-2002 by filing three separate revision petitions. The learned Judge in the Sahriat. Court vide a consolidated judgment dated 15-10-2002 accepted the revision petition filed by Muhammad Hanif against Makhdoom Hussain by recalling the concession of bail which was granted to him by the trial Court and in the other two revision petitions the order under challenge was maintained.
12. The order of Shariat Court dated 15-10-2002, whereby the accused-appellant was refused the concession of bail is erroneous, perverse, arbitrary and capricious and as such is liable to be set at naught. The impugned order of the learned Single Judge of Shariat Court, according to the learned counsel for the appellant, is not akin to the principles governing the bail matters. When the bail is granted, the considerations for cancellation of bail are altogether different from those which are required for release of an accused on bail. The F.I.R. Does not disclose any person to be the eye- witness. The prosecution after five-six days of the occurrence recorded the statements of Mst. Said Bibi and Mst. Nahida Bibr, who happen to be the maternal grandmother and mother of deceased, Mst. Alina, respectively Both the said witnesses have blamed Nisar Ahmed to be the assailant and then after 13 days of the occurrence on 3-6-2001 the complainant party prepared two persons, namely, Karam Hussain and Muhammad Zaman, who being relatives and having serious animosity with the appellant, Makhdoom Hussain, implicated him in the above incident falsely, so the statements recorded after the lapse of sufficient time itself make the prosecution case not of any worth but it would be more appropriate to say that their statements create more doubt and need further inquiry in the matter. These observations are being made for the purpose of deciding the bail application and are purely tentative in nature for the limited purposes of bail. These would not adversely affect the case of any of the parties on merits.
13. The record of the case depicts as if the fact of the matter is that the occurrence, as alleged by the prosecution, has not taken place in the manner but it Was an accident of motorcycle which had caused injuries to Muhammad Hanif and deceased, Mst. Alma. The version of the accident appears to be more plausible than the version put up by the prosecution. It is a settled law that if out of the prosecution case, two versions are palpable and plausible, the version favouring the accused should be accepted and not which implicates the accused. It is also to be noted that Muhammad Hanif's statement was recorded on 5-8-2001; although it is clear from the prosecution version that after a few days of the occurrence he was in senses then the question arises in the prudent mind as to why he kept mum for such a long time. This fact is also indicative of the fact that the complainant party remained in cooking and preparing to falsely enrope the innocent people. The explanations of the site plan also support the version as suggested by the learned counsel for the defence. In Explanation No.3 a place has been shown wherefrom Muhammad Hanif, injured alongwith his daughter, Mst. Alina, fell down from the motorcycle No.1197 AJKE. It is also on record at page 28 of the file titled Muhammad Hanif v. Zulfiqar Ali and others [Criminal Appeal No.44 of 2002] that the accused-appellant, Makhdoom Hussain son of Noor Hussain, while under the arrest of police pointed out that the 'Danda' with which he injured Muhammad Hanif and Mst.
Alina was in his possession and he could got it recovered, as such the accused on his ponitation handed over the same to police with which he caused injuries to Muhammad Hanif and Mst. Alina and the same was taken into possession by the police in presence of Sajawal son of Muhammad Alam and Noor Ahmed son of Muhammad Alam. In the other document which is shown at page 29 of the same file, it has been stated by Nisar Ahmed, accused, that on the day of occurrence the 'Danda' with which he injured Muhammad Hanif and Mst. Alma could be got recovered by him, therefore, on his pointation the same was recovered and was taken into possession by the police in presence of Delawar Hussain son of Muhammad Hussain and Muhammad Yusuf son of Muhammad Alam. When we compare both these documents, a doubt arises that out of these two accused, Nisar Ahmed and Makhdoom Hussain, who caused the fatal injury on the person of Mst.
Alina. This shows that the investigation conducted by the police has been miserably -poor and the police also could not reach the definite conclusion as to who out of them is real culprit. So far as Makhdoom Hussain is concerned, regarding him no one has stated that he was seen causing injury on the person of Mst. Alina and Muhammad Hanif. Therefore, by giving him the benefit of doubt, even at the stage of bail, this accused is also admitted to bail for the sum of Rs.5,00,000 with two sureties of the same amount. If the accused-appellant furnishes bail bond in the sum of Rs.5,00,000 with personal bond of the same amount to the satisfaction of Assistant Registrar of this Court, he shall be released on bail. In case the needful is not done, he shall remain in judicial lock- up. The rest of the accused, namely Zulfiqar Ali and Mujtahid Hussain, have already been released on bail by the trial Court as well as by the Shariat Court. The F discretion having been exercised concurrently their favour does not suffer from any infirmity or illegality. The discretion having been exercised in a lawful manner does not require any interference by this Court. Therefore, their bail order also stands confirmed and there are no cogent grounds to recall the bail granted to them. To their extent the appeal of the complainant is dismissed while the appeal to the extent of Makhdoom Hussain stands accepted and the orders of Courts below are set aside.