' CHAUDHARY MUHAMMAD TAJ, J.--- The above captioned two appeals arise out of a single judgment passed by the Shariat Court of Azad Jammu and Kashmir on 15-10-2001, therefore, these are disposed of by this common order.
2. The facts, precisely stated are, that a case under sections 302, 324, 147. 148, 149 and 337, A.P.C.
Was registered at Police Station Khuiratta on February 12, 2001 at 7-50 a.m. Against the appellant (Appeal No,41 of 2001) respondents (Appeal No,40 of 2001) and other accused persons (not before the Court) on the complaint of Muhammad Sadiq son of Sakhi Muhammad. The trial Court accepted the pre-arrest bail of Muhammad Nisar, accused-respondent, and also allowed after arrest bail to Mehboob Khan, respondent No,2, and declined for the rest of the accused persons.
Two revision petitions, one on behalf of the complainant for cancellation of the bail allowed to the above named accused persons, and the other on behalf of other accused for grant of bail were filed in the Shariat Court of Azad Jammu and Kashmir. The learned Judge in the Shariat Court accepted the revision petition filed on behalf of the accused Maulvi Walayat Khan, Sakhi Walayat, Khushal Khan, Shahpal Khan, Javed Khan and Israr Khan and released them on bail while the other revision petition on behalf of the complainant was dismissed. Hence, these two appeals, one on behalf of the complainant and the other. On behalf of Muhammad Bashir, appellant (Appeal No,41 of 2001).
3. Raja Bashir Ahmad Khan, the learned counsel appearing for the accused-appellant Muhammad Bashir and also representing respondents in cross-appeal, raised following points in support of the appeal:-
(1) That no prima facie case existed against the accused-appellant and respondents in other appeal as there were no reasonable grounds appearing against them as such the matter were of further probe.
(2) That the allegations attributed in the First Information Report are contradicted by the Medical Report; as such all the accused persons, the appellant and he respondents are entitled to the concession of bail.
(3) That no recovery was affected upon accused Muhammad Nisar and Mehboob Khan as such the matter with regard to their involvement is of further inquiry.
(4) That according to the prosecution story the deceased died because of fight between two groups, therefore, it is yet to be determined as to which party was aggressor. It was explained that police informed the doctor that deceased died because of a fight between two groups.
(5) That the accused persons have falsely been implicated in the case as the story is unbelievable for having called a "Punchayat" at 7-00 a.m. In the month of February.
(6) That all the witnesses are closely related inter se and' to the deceased as such the case is doubtful and the accused persons are also entitled to the benefit of doubt even at the bail stage.
The recovery witnesses do not qualify to be the witnesses as none of the respect tables of the locality was recovery witness.
(7) That the discretion exercised by the Court below to the extent of respondents (in Appeal No,40 of 2001) in consideration of the facts and circumstances does not warrant any interference except the order to the extent of Muhammad Bashir who is also entitled to the concession keeping in view the accusation made against him.
4. Mr. Abdul Majeed Mallick, who appeared on behalf of the complainant, while opposing the appeal tiled on behalf of Muhammad Bashir appellant and seeking cancellation of the bail through appeal, granted by the Shariat Court, argued in the following manner:--
(1) That a strong prima facie case existed against appellant Muhammad Bashir and respondents in Appeal No,40 of 2001. There were reasonable grounds which connected the accused persons with the offence as such the prohibitory clause of section 497, Cr.P.C. Was attracted as such none of the accused was entitled to the grant of bail.
(2) That the trial Court after due consideration of the facts and law proceeded to disallow the bail to the accused-respondents except Muhammad Nisar and Mehboob Khan who were illegally extended the concession of bail.
(3) That accused-respondent Muhammad Nisar was attributed to have caused injury at the vital part of the deceased with a lethal weapon, therefore, his petition for anticipatory bail was to be looked into on different grounds keeping in view the principles established by the superior Court but the trial Court illegally allowed bail against which the Shariat Court also dismissed the revision petition against law.
(4) That Shariat Court has allowed bail in an arbitrary way of exercising the discretion which is absolutely contrary to the principles of law established in this regard. The learned Judge in the Shariat Court has failed to look into the matter that all the accused persons were attributed overt act. The allegations were supported by the prosecution witnesses and also corroborated by medical and other corroborative evidence like recoveries.
(5) That the observations of the Shariat Court that facts do not suggest. That accused in furtherance of their common intention caused injuries to the complainant party and deceased Muhammad Hanif as such no unlawful assembly was constituted, are against law particularly in the circumstances when all the accused persons were loaded with lethal weapons and everyone of them did an overt act in giving injuries to the deceased and the other members of the complainant party.
(6) That the learned Judge in the Shariat Court also failed to appreciate while giving this observation that the prosecution has failed to explain injuries on the person of accused as there is none of the injuries which requires to be explained.
5. Sardar Abdul Razzik Khan, the learned Additional Advocate-General, appearing on behalf of the State, supported the arguments addressed on behalf of Mr. Abdul Majeed Mallick, the learned counsel for the complainant
6. We have heard the learned counsel for the respective parties and also gone through the record.
According to First Information Report it was alleged that the complainant and the accused persons belong to sane village. There was a business dispute between Muhammad Akram and Khushal son of Sakhi Walayat, therefore, a "Punchayat" was called at 7-00 a.m. At Chowk Bhayal. It was further disclosed that when the complainant alongwith his brother Muhammad Hanif, Muhammad Sagheer, Muhammad Shafaat, Abdul Hameed, Abdul Karim, Muhammad Tariq and Muhammad Akram reached near Chowk Bhayal, all the accused persons who were armed with lethal weapons forming unlawful assembly launched an attack upon the complainant party with the intention to kill them. Matloob Hussain accused who was armed with pistol shot a fire which hit on the chest of his brother Muhammad Hanif. Muhammad Nisar accused inflicted two injuries upon his forehead with the butt of kalashnikov. Ashfaque accused pelted stone which hit upon the chin of Muhammad Hanif. Accused Maulvi Walayat and Sakhi Walayat inflicted the injuries upon right leg and right arm of Muhammad Hanif With sticks. Accused Kala gave injury upon the head of Muhammad Shafaat with the rod.. Accused Sakhi Walayat and Maulvi Walayat also inflicted injuries on the right hand, left hand and right arm of Muhammad. M Shafaat with sticks.
Muhammad Bashir shot a fire with .12 bore gun which hit upon the abdomen of Muhammad Shafaat who also fell down. Shahpal and Javed accused gave stick blows upon the right arm, left arm, right hand, and on the right eye of Muhammad Sagheer. Khushal accused caused injury with the butt of kalashnikov on the head of Muhammad Akram who was also given a stick blow by Mehboob Khan on the back of his head. Muhammad Israr and Adalat accused persons pelted stones upon the right cheek and shoulder of Muhammad Akram. Sakhi Walayat and Maulvi.
Walayat accused also inflicted injuries upon the right wrist, right hand and right leg of Muhammad Akram while Muhammad Farooque and Muhammad Asghar fired with .12 bore gun and a pistol.
Due to the injuries caused Muhammad Hanif died at the spot.
7. The above allegations made in the First Information Report were supported by the prosecution witnesses including the injured eyewitnesses. The medical evidence also supported the version disclosed in the First Information Report.
8. To consider the 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 under 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 no reasonable grounds for believing that the accused has committed a non-bailable offence but 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. It may also be stated that the matter of pre-arrest bail has to be dealt with in accordance with the conditions laid down by the superior Courts from time to time in addition to the conditions laid down under section 497, Cr.P.C. The most essential of' them are that the intended arrest would be tainted with mala tide and it must be established that the accused- petitioner apprehends his arrest on account of ulterior motive or the prosecution is motivated by malice as to, cause irreparable injury to his reputation and liberty and police is motivated on political consideration or other ulterior reasons. The extraordinary jurisdiction of anticipatory bail which has the effect of diverting the normal course of law, has to be exercised with caution.
9. The power conferred by section 497. Cr.P.C, is not arbitrary power. It has to be exercised by reference to material placed before the Court and as to what that material should be. That material would consist of accusation made in the report made to the police, nature and credential of evidence which the prosecution proposes to lead in the case and all other relevant circumstances surrounding the occurrence. The other relevant circumstances would include the evidence produced by the accused and bail has to be allowed or rejected on the basis of this material. It follows that the Court has to make a tentative assessment in order to decide a bail application as the section does not in terms contain F any restriction on the Court's power to assess the evidentiary value of the material produced before it.
10. The Shariat Court allowed the bail to accused-respondents Nos.3 to 8 and also maintained the order passed by the trial Court in respect of allowing the bail to Muhammad Nisar. Accused- respondent, on the ground that: (i) in post-mortem report the doctor was furnished information by police that. Deceased died in a fight between two groups; (ii) the benefit of section 169, Cr.P.C. Has been extended to one of the accused, Muhammad Asghar; (iii) Sakhi Walayat, one of the accused, was also shown injured during the incident but no explanation about his injury was given; (iv) accused Maulvi Walayat was about 75 years old, therefore, his case was covered in proviso of subsection (1) of section 497, Cr.P.C.; and (v) that none of the accused persons was attributed to have caused injuries to the deceased except Maulvi Walayat and Sakhi Walayat who were also alleged to have caused simple injuries on the leg and right arm of deceased which were declared abrasions. Therefore, it was yet to be determined as to whether the accused persons shared common intention and, therefore, were vicariously liable for death of Muhammad Hanif.
11. Before adverting to the tentative assessment of the material it would be necessary to mention that the learned Judge in the Shariat Court failed to apply the settled principles of law established by the superior Courts while making observations on certain facts and thereby allowing the bail to the accused persons. The Shariat Court made basis for its order that post-mortem report disclosed about the information furnished by the police that the deceased Muhammad Hanif died due to a fight between two groups. It was also mentioned that accused Muhammad Asghar was extended the benefit of section 169, Cr.P.C. We are unable to agree to the learned Judge of the Shariat Court that aforesaid grounds could be made basis for extending concession of bail to the accused persons. Similarly it was claimed that one of the respondents, Sakhi Walaya*. Was injured and no explanation was offered by the prosecution. The injury according to the record was an abrasion and it was hardly necessary to explain such injury in the circumstances the occurrence took place.
The learned Judge in the, Shariat Court further observed that accused Maulvi Walayat is above 75 years old, therefore, his case is covered under subsection (1) of section 497, Cr.P.C. The old age per se has never been considered a ground for bail to be covered under proviso 4 of subsection (1) of section 497, Cr.P.C. It may also be added that there Was no proof on the record that Maulvi Walayat accused was of 75 years old. It would also be relevant to mention that the trial Court allowed bail to Muhammad Nisar, accused-respondent, on the ground that he produced certain affidavits in support of his plea of alibi before the Investigating Officer. The learned Judge in the Shariat Court also concerned with the view taken by the trial Court ignoring the law on the point that mere filing of affidavits would not furnish a ground for grant of bail for establishing plea of alibi.
12. In the present case Matloob Hussain, accused (not before the Court) was attributed to have fired a shot with pistol at Muhammad Hanif deceased while Muhammad Nisar accused is alleged to have caused injuries on the head of Muhammad Hanif with the butt of kalashnikov. The other accused Sakhi Walayat and Maulvi Walayat have also been alleged to have caused injuries on the leg and arm of the deceased apart from the fact that aforesaid accused have also inflicted injuries to prosecution witnesses, Muhammad Shafaat and Muhammad Akram which are grievous in nature. Muhammad Bashir, accused-appellant, is alleged to have fired at abdomen of Muhammad Shafaat with .12: bore gun while all other accused are alleged to have caused injuries to the prosecution witnesses and none else is attributed to have caused injury to Muhammad Hanif. The allegations made in the First Information Report are supported by the eye-witnesses who are injured as well and are also corroborated by the medical evidence.
13. As said earlier, the question of pre-arrest bail of an accused involved in a case attracting death penalty or transportation for life Is dealt quite differently against the accused involved in the aforesaid offence in the matter of after-arrest bail. The aforesaid question came under consideration of the Shariat Court of Azad Jammu and Kashmir in a case reported as Gul Sanaubar v. Nazir Ahmed PLD 1984 Sh.C. (AJ&K) 1 wherein it was held as under:-- ' .... The relevant provision of law relating to bail is covered under sections..496, 497, 498 and 561-A, Cr.P.C. Section 496, Cr.P.C. Covers bailable offences. Non-bailable cases are dealt with in under section 497. Cr.P.C. Section 497(1) provides that bail shall not be allowed in cases where sentence is likely to be awarded as death or life imprisonment. Subsection (2) of section 497, Cr.P.C. Vests discretion to the Court to consider the question of grant of bail when in its opinion, the case was considered as one of further inquiry. The cases of bail pre-arrest are settled under section 497, Cr.P.C. And the Court is vested with jurisdiction to grant or refuse bail in the light of such scheme.
The cases of bail pre-arrest, on the other hand, are dealt in a different fashion. It is always in presence of mala tide; apparent concoction fabrication and proposed compassionate grounds which are considered the grounds for allowing bail pre-arrest. The Court is authorised to allow pre- arrest bail in presence of all or any one of the aforesaid reason. In the present case, the lower Court seems to ignore the basic principle of bail before arrest. The case was not decided in a judicial fashion. It may be mentioned that in case of non-bailable offences, the Court should be slow in granting bail before arrest in absence of the reasons mentioned above. The tendency of leniency arid latitude in bail has, in fact, aided in increase in the crimes."
' Similar proposition also came under discussion before the Supreme Court of Pakistan in a case reported as Murad Khan v. Faza!-e-Subhan and another PLD 1983 SC 82 wherein while dealing with pre-arrest bail matter, the following observations were made:-- "As already observed, it has been reiterated by this Court in earlier noted cases that the condition of arrest being for ulterior motives, for example, that of humiliation. And unjustified harassment is a necessary condition for pre-arrest hail. It would not be out of place to notice another case Rao Qadeer Khan v. The State PLD 1981 SC 93 wherein indiscriminate grant of anticipatory bail was commented upon as follows-- ' We are also in agreement with the learned Courts below that the conduct of the petitioner by making repeated applications for anticipatory bail, trying to gain advantage thereunder and then absenting for periods of time, amounted to abuse of the process of law and Court.'
It has not been denied that there are other cases as well confirming the rule that one of the main considerations for grant of bail is whether the prosecution is motivated by malice so as to cause irreparable injury to a citizen's reputation and liberty -........
14. It may also be mentioned that mere filing of affidavits for establishing the plea of alibi, as dealt in the earlier part of the order, Would not constitute a ground for bail either before the Investigating Officer or the Court. The aforesaid plea has to he established before the trial Court. The aforesaid question came under consideration before this Court in a case reported as Abdul Haq v. Ghazanfar Ali and 3 others PLD 1992 SC (AJ&K) 33 wherein the proposition was resolved in the following words:-- ".. The broad principle is that bail is refused in murder cases if the material on the record tends to connect the accused person with the offence. Another test which has been laid down by the superior Courts while dealing with bail matters in cases in which death or life imprisonment is the prescribed sentence is that an accused would not be granted bail if the prosecution evidence, if left unrebutted, would prove the charge. We have already indicated the material which is available on the record on which the prosecution relies. In our view to enlarge Ghazanfar Ali in presence of this material would only be possible if we tentatively declare that this material is not enough to connect the accused with the offence. In our considered view there is no such situation in the case.
The plea of alibi is yet to be gone into by the trial Court, as has been pointed out by the learned Judge of the Shariat Court himself, and we would rather leave this function to be performed by the trial Court which initially rejected the application for bail moved by Ghazanfar Ali accused."
15. The result of the above discussion is that the Shariat Court of Azad Jammu and Kashmir illegally allowed bail to the accused-respondent Muhammad Nisar by upholding the order passed by the District Court of Criminal Jurisdiction, Kotli as he was prima facie involved in the non-bailable offence attracting the prohibitory clause of section 497, Cr.P.C. For having attributed the allegation of causing injuries on the vital part of body of deceased. Therefore, the order to the extent of aforesaid accused-respondent is not maintainable. Similarly, appellant Muhammad Bashir having caused fire-arm injury at the abdomen of Muhammad Shafaat, the prosecution witness, prima facie is involved in a non-bailable offence attracting the prohibitory clause of section 497, Cr.P.C.
As such he is also not entitled to the concession of bail as held by the Courts below. However, the order passed by the Shariat Court for the other respondents (Appeal No,40 of 2001) is not interfered with for the following reasons:--
(1) Accused Sakhi Walayat and Maulvi Walayat though alleged to have caused injuries to deceased Muhammad Hanif but the aforesaid injuries have been declared simple and are abrasions in nature. It may also be mentioned that those injuries have not been caused on the vital part of the deceased's body. The view finds support from 1988 PCr.LJ 325.
(2) That none other accused-respondent was alleged to have caused injuries to deceased Muhammad Hanif but were attributed to have caused to the prosecution witnesses. Most of the alleged injuries are simple in nature. The alleged grievous injuries shown are also on non-vital part of the body apart from the fact that the matter with regard to the injuries being grievous in nature also requires further probe. The proposition is supported by 1981 P(Cr LJ 1232.
(3) The bail has been granted to the above-named accused-respondents by the Shariat Court in exercise of its discretion; therefore, the order is not to be lightly interfered with. Therefore, it is held that the question of vicarious liability should not be deeply examined at the bail stage. Whether or not the respondents shared common intention to commit murder of Muhammad Hanif and launched a murder assault on prosecution witnesses is a matter which needs further inquiry. The case apparently falls within the purview of subsection (2) of section 497, Cr.P.C.
16. In the light of what has been stated above, the appeal filed by Muhammad Bashir appellant (Appeal No,41 of 2001) is dismissed. The other appeal filed on behalf of complainant Muhammad Sadiq for the cancellation of bail of Muhammad Nisar and others (Appeal No,40 of 2001) is partly accepted to the extent that the bail granted to Muhammad Nisar, respondent, is cancelled while the appeal fails to the extent of other respondents whose bail order is maintained.