MUHAMMAD YUNUS SURAKHVI, C.J - This appeal has been directed against the judgment and order passed by the Shariat Court of AJ&K on 11.4.2003, whereby the sentence awarded to the respondents, Muhammad Malik and Muhammad Taj, was suspended and they were allowed to be released on bail.
2. The necessary and precise facts, giving rise to the present appeal, are that against the respondents herein and some others a challan was submitted under Sections 5/15, I.P.L., 302, 147, 148, 149 and 447, APC in the District Court of Criminal Jurisdiction, Mirpur, After necessary proceedings and conclusion of trial, the Trial Court vide its judgment dated 19.2.2003 sentenced the accused-respondents under Section 15, I.P.L. To pay Rs. 10,000/- each as Hakoomat-e-Adal and were further sentenced for other offences to under the rigorous imprisonment of 10 years. The respondents preferred an appeal against their conviction in the Shariat Court and also moved application under Section 426, Cr.P.C, for the suspension of sentence and for their release on bail.
The Shariat Court vide its judgment dated 11.4.2003 accepted the application of respondents and suspended the sentence awarded to them and allowed them to be released on bail on their furnishing bail bonds in the sum of. Rs. 2,00,000/- each with one surety, It is the aforesaid judgment of the Shariat Court which is the subject-matter of present appeal.
3. In support of appeal it was vehemently contended by Ch. Ali Muhammad Chacha, the learned counsel tor the appellants, that the judgment passed by the Shariat Court is arbitrary, capricious, perverse and the same deserves to be set aside. The learned counsel contended that the conviction of respondents fell under the prohibitory clause of Section 426, Cr.P.C, and as such the benefit of impugned order could not have been given to the respondents. While elaborating his point of view the learned counsel for the appellants contended that Section 426(1-A)(c) of Cr.P.C, clearly postulates that in case of imprisonment for life exceeding 7 years and whose appeal has not been decided within a period of to years of his conviction then such person cannot be released on bail. The learned counsel argued that in the case in hand the conviction order was passed by the Trial Court on 19.2.2003 which shows that nearly after to months the learned Shariat Court released the respondents without any legal justification. The learned counsel tor the appellants in support of his contentions placed reliance upon the cases reported as Farhat Azeem v. Waheed Rasool (PLD 2000 SC 18) and Abdul Khaliq v. Jehangir and another (PLJ 1999 SC (AJ&K) 219).
In Farhat Azeem v. Waheed Rasool (PLD 2000 SC 18) it was held that the powers conferred on an Appellate Court under Section 426, Cr.P.C, to suspend sentence pending hearing of an appeal are not wider than the powers to release on bail under Sections 497 and 498, Cr.P.C. A person accused of a non-bailable offence may not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life unless strong grounds are made to appear that conviction is not liable to sustain, It was thus held that the bail under Section 426, Cr.P.C, will not be granted.
In another case reported as Abdul Khaliq v. Jehangir and another (PLJ 1999 SC (AJ&K) 219) it was observed that the factors taken into consideration by the Shariat Court are not relevant while suspending the impugned order of the Trial Court under Section 426, Cr.P.C, It was enjoined upon the Shariat Court not to embark upon the detailed appreciation of evidence brought on record by the prosecution. On the one hand the learned Judge m the Shariat Court observed that at the stage of suspending the impugned order and releasing the convict-respondent on bail detailed appreciation and scrutiny of evidence is neither permissible nor. Desirable but at the same time he dived deep into elaborate appraisal of evidence which is not the requirement of law. The Trial Court while recording the conviction relied on the ocular evidence of the eyewitnesses duly supported by the medical evidence. According jo the Trial Court, all the eye-witnesses named in the F.I.R, fully supported the prosecution version and the same stands corroborated by medical evidence and the evidence of Ballistic Expert that the deceased was shot dead by a 12-bore gun shot made by convict-respondent. At the stage of bail by exercising the powers under Section 426, Cr.P.C, the Appellate Court has no more powers than the powers vested in a Court under Section 497, Cr.P.C.
The Shariat Court was also impressed by the fact that the witnesses were inter-related and interested. This finding to could be given only when due appraisal of evidence is to be made at the stage of hearing appeal and not at the stage of suspension of sentence recorded by the Trial Court. The related witnesses cannot be disbelieved as interested witnesses unless they have a motive to falsely implicate the accused. The Trial Court after thorough scrutiny and appraisal of evidence on record reached the conclusion that the convict-respondent is responsible for the commission of murder of deceased and thus awarded him the sentence of life imprisonment Which brings the case within the purview of proviso (1) of Section 497. Cr.P.C, which prohibits explicitly release of accused on bail. Thus the convict-respondent Could not have been released on bail. The impugned order is therefore totally perverse and violative of settled principles relating to bail matters. The Trial Court bv dilating upon the appraisal of evidence has virtually decided the appeal which practice is in utter disregard of Law amounting to non-application of judicial mind which must be discouraged and deprecated. The order of Shariat Court thus stood cancelled.
4. The learned counsel for the appellants vehemently urged that as the respondents were awarded sentence of 10 years' rigorous imprisonment in the other offences mentioned in the challan besides the sentence under Section 15, I.P.L.; their sentence could not have been suspended by the Shariat Court. The learned counsel submitted that the sentence of 10 years' rigorous imprisonment awarded to the respondents shall be deemed to have been imposed upon them under Section 5, I.P.L. And there being a prohibition of such a sentence under Section 42,6, Cr.P.C., the Shariat Court committed a grave legal error in suspending the same and releasing the accused- respondents on bail.
5. Conversely, Mr. Muhammad Yunus Tahir, the learned counsel for the accused-respondents, emphasized that the Shariat Court had awarded the sentence of Hakoomat-e-Adal of Rs. 10,000/- to accused-respondents under Section 15, I.P.L., therefore, to that extent it was justified to award that sentence provided the offence had been proved but at the stage of Suspension of sentence, minute scrutiny of evidence is not desirable. So far as the sentence of 10 years' rigorous imprisonment awarded to respondents under the other offences, i.e. Section 5, I.P.L. And Sections 147, 148, 149, 307 and 447, A.P.C. Is concerned, the Trial Court fell in a grave error by awarding the sentence of 10 years' rigorous imprisonment to the accused-respondents each and thus the judgment recorded by the Trial Court becomes vitiated. The learned counsel submitted with vehemence that soon after the occurrence, the principal accused namely, Muhammad Sadiq, who was armed with Kehi after causing injuries on the persons of Fazal Hussain and his son Abdul Khaliq absconded. The injuries to Abdul Khaliq were caused on head in consequence of which he was done to death. The accused-respondents never inflicted any injury on the person of deceased.
While elaborating the provisions of Section 426, Cr.P.C, the learned counsel put much stress on the words "for reasons to be recorded by it in writing" and contended that after recording the reasons in writing, the Appellate Court can pass an order for the suspension of the sentence. He placed reliance on an authority titled Ghulam Hussain v. State (1994 P.Cr.L.J. (Lah.) 389) which lays down that the phrase "reasons to be recorded" Would not confine only to the reason relating to the delay itself but would also extend to other reasons including the merits of the case, It was held that the Court while considering the bail on statutory ground is entitled to make tentative assessment of the evidence to form an opinion vis-a-vis the merits of the case and if it is of the opinion that the case is otherwise not fit for grant of bail, giving reasons in writing, it shall be justified to refuse bail even on the statutory ground.
6. In another case cited by the learned counsel for the accused-respondents titled Abdul Khaliq v.
State (1995 P.Cr.L.J. 1528) it was observed that the Appellate Court can suspend the sentence if it is of the view that the appraisal of evidence made by the Trial Court was against law and needed examination but while undertaking such exercise it has to confine itself to the infirmities in the judgment which are apparent and tend to show that the conviction and sentence are not sustainable in law.
7. After hearing the respective contentions of the learned counsel for the parties and careful perusal of the judgment recorded by the Shariat Court, we are of the view that the only role attributed to accused respondents is that they were seen at the place of occurrence but when the accused-respondents inflicted injuries upon Fazal Hussain, Abdul Khaliq and upon other witnesses, they ran away from the seen of occurrence. Neither any overt act is attributed to these accused towards the deceased nor towards the prosecution witnesses. Their mere presence at the place of occurrence is no ground, to hold that they shared common intention of the principal accused, namely, Muhammad Sadiq, nor their bail can be cancelled on the ground that they were seen present at the place of occurrence.
8. Another important aspect of the case is that Muhammad Sadiq, accused, who was armed with Kehi and the deceased is alleged to have died on account of injuries caused by him, absconded right from the day first after committing the occurrence he was neither tried nor sentenced by any Court of competent jurisdiction. The other accused who were tried and sentenced to various punishments, as stated earlier, they are stated to have caused injuries to the prosecution witnesses and not to the deceased. If in the ultimate analysis Muhammad Sadiq, principal ,accused is tried and is acquitted, the accused-respondents who are claimed to have shared the common intention of principal accused, cannot be punished for any offence. Thus by no stretch of imagination the order of suspension of their sentence by the Shariat Court can be construed or termed to be an order which is bad in law. On the other hand the order seems to be perfectly valid.
9. We may observe here that the judgment of the Shariat Court has not been written in accordance with the provisions of Section 367, Cr.P.C. At many occasions we have found that without holding the accused persons responsible for the commission of offences, they were stated to be the culprits whereas the requirement of law is that first of all the Court is bound to give reason that for such and such material the accused are held guilty and then they can be termed as culprits but before doing so they cannot be dubbed as culprits, It is also the requirement of law that for recording the judgment under Section 367, Cr.P.C, the Court shall specify the offence, if any, and the section of Penal Code under which the accused is convicted and the punishment to which he is sentenced but m the case in hand the procedure provided in Section 367, Cr.P.C has not been adopted but has been deviated to a certain extent. The learned Judge in the Shariat Court at the end of the impugned judgment rightly pointed out the following few lines:- "The role attributed to the convict-petitioners is that they inflicted injuries to Fazal Hussain, complainant, and Matloob Hussain, respectively with the sticks which have been recovered from them vide recovery memo. Ex.PH and Ex.PK while the deceased, Abdul Khaliq, was caused no injury by them. Prima facie the conviction recorded to their extent may require re-examination, therefore the sentence of the petitioners is suspended and they are allowed to be released on bail."
It would have been much better if the learned Judge had explained that the principal accused, Muhammad Sadiq has absconded and so far he has not been tried nor convicted by any Court of competent jurisdiction, It was also enjoined upon the Shariat Court to observe that had the principal accused been convicted and sentenced, it would have been not so difficult to determine the liability of the other accused as to whether they shared the common intention of the principal accused or not. The question of vicarious liability cannot be determined in vacuum.
10. In the light of what has been stated above, the appeal being devoid of any legal force, stands dismissed and the judgment under appeal remains upheld.