' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been preferred against the order of the Shariat Court: dated 9-2-1999, whereby the convict-respondent No,1 was released on bail after suspension of his conviction and sentence under section 426, Cr.P.C.
2. The brief facts giving rise to the present appeal are that an F.I.R. Was lodged alleging that on 13- 11-1998, at about 7-30 p.m. Muhammad Yusuf, deceased, alongwith Ahmad Din, complainant, and Muhammad Hanif, injured witness, were on their way to a marriage ceremony when they were attacked by the accused persons, nine in number, including Muhammad Tazeem, the convict- respondent. It was alleged in the F.I.R. That Muhammad Younus, acquitted accused, fired with .12 bore gun, Muhammad Iqbal, accused, caught hold of Muhammad Yousuf and Muhammad Tazeem, convict-respondent, inflicted injury with hatchet on the head of Muhammad Yusuf who died on the spot. Muhammad Hanif, one of the witnesses was injured in the incident by Manzoor Ahmad. The District Criminal Court convicted and sentenced the convict-respondent to eleven years rigorous imprisonment under section 3 read with section 24 of the Islamic Penal Laws Act, 1974, for committing the murder of Muhammad Yusuf whereas Muhammad Manzoor, who was found guilty of inn' ting injury to Muhammad Hanif, was se tenced to three years rigorous imprisonment. On application made by 1 thammad Tazeem, the convict-respondent, before the Shariat Court, his conviction and sentence were suspended and he was released on bail vide impugned order against which the present appeal has been preferred to this Court.
3. Assailing the impugned order, Ch. Muhammad Afzal, Advocate, the learned counsel for the appellant, has argued that the Shariat Court has committed an error while enlarging the convict- respondents on bail under section 426, Cr.P.C. He has contended that the prosecution has proved the case against the convict-respondent by -lroducing ocular as well as circumstantial evidence.
The learned counsel has argued that the testimony of Ahmad Din, complainant, and Muhammad Hanif, the injured witness, cannot be brushed aside, especially so when their presence at the spot at the time of occurrence is beyond any doubt. He has further contended that ocular evidence adduced by the prosecution is corroborated by the circumstantial evidence, i,e, the recoveries of the incriminating articles and the medical report. He as further submitted that after the conviction in a criminal case, the nitial presumption of innocence enjoyed by an accused person is no more available to him and, thus, the powers under section 426, Cr.P.C. Are exercisable only in exceptional cases and not as a matter of routine. The learned counsel has further submitted that in the instant case, the appeal filed by th convict-respondent against his conviction and sentence was at the stage of arguments and, thus, it was not proper to release him on bail after deep appreciation of evidence which is tantamount to decide the appeal itself. The learned counsel has referred to the impugned judgment of the Shariat Court and has contended that the Shariat Court is appeared to have been influenced by some omissions by the Investigating Officer which are of no legal co, equence. The learned counsel has further submitted that the observations made by the Shariat Court about the testimony of eye-witnesses are not only unwarranted but are premature and are likely to adversely affect the case of the prosecution. The learned counsel for the appellant has submitted following authorities in support of his contentions:-- ' In case reported as Muhammad Sharif Khan v. The State 1983 PCr.LJ 22, while dealing with the scope of sections 426 and 497, Cr.P.C., it was observed that ordinarily, a convict who is accused of committing murder should not be released on bail on the ground that ultimately his conviction might be set aside. It was further observed that although the bar contained in section 497, Cr.P.C.
Which envisages that if an accused person is reasonably connected with the commission of offence which is punishable with death or transportation for life, is not applicable to section 426, Cr.P.C. Yet the same must always weigh with the Courts while passing an order of suspension of the sentence of an accused person.
' In case reported as Muhammad Nawaz v. Muhammad Nawaz alias Naji 1997 SCM R 1521, it was observed that the accused who was convicted and sentenced on the charge of murder, the High Court had no jurisdiction to suspend his sentence under section 426(I), Cr.P.C., on the ground that no injury was attributed to the concerned convict and he merely fired ineffectively during the incident.
4. In reply, Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the convict-respondent, has argued that in the instant case, the eye-witnesses are related to the complainant party and do not inspire confidence. He has submitted that even the trial Court has observed about the said witnesses that they were not found "Adar . The learned counsel has referred to the injury sheet, the inquest report and has submitted that the same are contradictory and create a reasonable doubt about the truth of the prosecution case. According to the learned counsel for the convict- respondent, the statements of the alleged eye-witnesses are not only contradictory but they (witnesses) are inimical to the convict-respondent and, thus, cannot be relied upon without corroborative evidence, which is not available in the present case. The learned counsel has stressed that there is no corroboration of the statements of the prosecution witnesses by any circumstantial evidence or otherwise. He has also submitted that in view of the time of occurrence, the identification of the alleged assailants was not possible, specially when as many as nine persons are alleged to have attacked the complainant party. He has further submitted that according to the prosecution case, the assailants fired at the complainant party but none of the members of the complainant party sustained injury by fire-arm neither any empties were recovered. He has further argued that the hatchet, the alleged weapon of offence, was not found stained with the human blood and recovery of the same is also doubtful. The learned counsel has maintained that the hatchet was not sent to the Serologist and, thus, it cannot be said that the same was used as a weapon of offence as has been alleged by the prosecution. The learned counsel has also referred to the entries of the site plan and has submitted that the name of Ahmad Din, complainant, one of the prosecution witnesses, does not figure in the site plan. Similarly, according to the learned counsel for the respondent, the trial Court has failed to appreciate the inherent defect in the prosecution story and the fact that the major part of the prosecution story was not believed by the trial Court and, thus, the other accused persons were acquitted. The learned counsel has submitted that in these circumstances, the Shariat Court did not commit any error in extending the concession of bail the convict-respondent under section 426, Cr.P.C. The learned counsel submitted following authorities in support of his contentions:-- ' In case reported as Muhammad Aslam v. Yaqoob 1984 SCM R 103, the petition for leave to appeal against the judgment of the High Court was rejected observing that the tentative view formed by the High Court that the conviction of the concerned accused who was convicted for vicarious liability, was doubtful and that another accused who was , also convicted for sharing the common intention with the principal accused was released on bail.
' In case reported as Abdul Ghaffar v. Anwarul Hassan 1978 SCM R 149, the facts were that the accused-convict was sentenced to life imprisonment in a case under section 302/34, Penal Code.
It was observed that the conviction of the accused concerned was based on circumstantial evidence; the learned Sessions Judge who convicted the concerned accused also observed that the circumstantial evidence against the accused was of weak nature. The High Court in the circumstances, suspended the conviction and sentence of the accused and released him on bail under section 426, Cr.P.C. The Supreme Court rejected the petition for leave to appeal against the order of the High Court.
' In case reported as Karamatullah v. The State 1989 PCr.LJ 236, the accused person was convicted under section 302/34, Penal Code, and was sentenced to life imprisonment and fine by the trial Court. His conviction and sentence were suspended by the High Court on the ground that the names of the culprits, including the concerned convict, were not mentioned in the F.I.R. And that it transpired from the record that the incident took place in darkness. The trial Court had observed that eye-witnesses could not identify the culprits due to darkness at the time of commission of offence. Thus, under these circumstances, the conviction and sentence of the accused person were suspended.
' In case reported as Khurshid Ahmad v. Muhammad Ilyas 1994 SCR 136, it has been observed that the discretion exercised by the Shariat Court in allowing bail to an accused person cannot be interfered with unless it is shown that the order passed by the Shariat Court suffers from an illegality. This case does not relate to the suspension of the conviction and sentence under section 426, Cr.P.C. And, thus, the observations made therein have no nexus with the case in hand.
5. We have given due consideration to the arguments raised at the Bar. We may state at the very outset that normally in a murder case, after conviction, the bail is not allowed to a convict by suspending his conviction and sentence until and unless exceptional circumstances are shown to be existing for doing so. We have no quarrel with the A discretionary powers of the Shariat Court available to it under section 426, Cr.P.C. But such powers are subject to the conditions including the one that the same are to be exercised in exceptional circumstances particularly in heinous crimes like murder and not as a matter of routine. In the instant case, the prosecution story has been held proved by the trial Court so far as the convict-respondent is concerned, there is, prima facie, ocular and circumstantial evidence against him. The question as to whether the said evidence was rightly relied upon by the trial Court or not can be considered only at the stage of the disposal of the appeal and not at the stage of bail under section 426, Cr.P.C. The question with regard to the identification has also been dealt with by the trial Court and it has been held that the identification of the convict-respondent was not doubtful in view of the fact that the incident took place when there was moon light and the light of torch. The deep appreciation of the prosecution evidence and the attending circumstances, particularly the alleged discrepancies in the injury sheet, inquest report and the post-mortem report, could not be made basis for releasing the convict-respondent on bail at this stage; the said aspects of the case could be duly considered only at the time of disposal of the appeal by the Shariat Court. It may also be stated here that while releasing a person on bail after suspending his conviction and sentence under section 426, Cr.P.C. The Court is apt to make observations consciously or unconsciously with regard to the merits of the case which is not proper. Any such observations at bail stage are likely to give rise to apprehensions in the mind of one party or the other which offend against the normal course of justice and are tantamount to prejudice the merits of appeal before its hearing. Thus, we cannot help to observe that when the appeal itself was ripe for arguments, why the Shariat Court chose, to resort to the provisions contained in section 426, Cr.P.C. For releasing the convict-respondent on bail instead of hearing the appeal itself. We have held in a number of cases that the bail after conviction, especially in a murder case, is a rare phenomenon which should be only resorted to in exceptional circumstances and not as a matter of routine. A reference may be made to the observations made by this Court in an unreported case entitled Abdul Khaliq v. Jehangir Criminal Appeal No,16 of 1998 decided on 4-5-1991, wherein while setting aside the order of the Shariat Court passed under section 426, Cr.P.C. In a murder case, it was observed as under:- "The Shariat Court lost sight of the fact that after conviction in criminal jurisdiction initial presumption is against innocence of convict. Initial presumption of innocence in favour of accused is substantially dislodged upon his conviction by a competent Court. Person convicted of a non- bailable offence by a competent Court would not be entitled to be enlarged on bail normally by the Appellate Court except in circumstances mentioned in section 426, Cr.P.C. Our aforesaid view stands fortified by the case reported as Muhammad Latif and 3 others v. The State 1984 PCr.LJ 1503 and Muhammad Murad v. The State 1986 PCr.LJ 64."
' In the light of what has been stated above, we set aside the judgment of the Shariat Court whereby Muhammad Tazeem, respondent, was released on bail by the Shariat Court.
Consequently, the bail bend and personal bonds furnished by him stand cancelled. It is directed that he shall be arrested forthwith and committed to prison.