' KHAWAJA MUHAMMAD SAEED, J.---The supra titled appeal is directed against the order of the Shariat Court dated 31-10-2003, whereby while allowing revision petition filed by Mst. Parveen Bibi, the bail granting order passed in favour of the appellant on 18-7-2002 by the District Court of Criminal Jurisdiction, Bhimber, was set aside.
2. The facts relevant for the decision of this appeal, briefly stated, are that on 19-3-2000 a complaint was lodged by Muhammad Siddique, deceased, to the effect that on the said day at about 10-00 a.m. He, alongwith his sister, Mst. Irshad Begum, was on his way to condole death of son of Ghulam Hussain. When they reached at a place known as Bagga Pirah, the accused party suddenly raised a 'Lulkara' that they will not allow them to go alive that day. According to the F.I.R., out of accused party, the present appellant, Ghulam Hussain, was armed with .12 bore double barrel gun, Muhammad Latif with .22 bore gun, Muhammad Hanif with Kalashnikov, Muhammad Rafiq with .30 bore pistol while Muhammad Shafi was armed with a hatchet. It is attributed in the F.I.R. That the accused-appellant fired with .12 bore double barrel gun at the complainant which hit him at his upper part of right thigh and due to this reason he fell down. Muhammad Hanif, accused, gave a blow with the butt of his rifle to his sister, Mst. Irshad Begum, which resulted into the fracture of her arm. The complainant and his sister raised hue and cry. Moreover, on account of firing, the appellant, Ghulam Hussain, Khurshid Ahmad, Muhammad Ashiq, Raj Muhammad, Rasheed Ahmad, rushed towards the place of occurrence. On seeing them coming towards the place of occurrence, the accused party raised 'Liilkara' and stated that they had killed Muhammad Siddique, complainant. The prosecution witnesses snatched the guns from Ghulam Hussain and Muhammad Latif. However, the other accused persons kept on firing and ultimately they fled away from the scene of occurrence. On the basis of this F.I.R., a case for offences under sections 341, 324, 147, 148, 149 and 337F, A.P.C., was registered against the accused party. Later on Muhammad Siddique, complainant, succumbed to the injuries and died. As such, section 302, A.P.C., was added.
The motive for this incident is a dispute of land between the parties. The accused party was apprehended and after completion of investigation, they were sent to face trial before the District Court of Criminal Jurisdiction, Bhimber.
3. There is no need to mention the details of other accused persons as their case is not before us presently. The present appellant being principal accused was denied bail in two previous rounds by the Courts. This time, the bail application was moved after the statements of prosecution witnesses were recorded by the trial Court. Another accused who had absconded was arrested and a supplementary challan was filed against him. In order to provide him a chance to cross- examine the prosecution witnesses, first prosecution witness has been summoned by the trial Court. The trial Court allowed bail to the accused-appellant. However, this concession was recalled by the learned Judge in the Shariat Court vide order under challenge in the present appeal.
4. Ch. Muhammad Azam Khan, the learned counsel for the accused-appellant, argued that the prosecution has miserably failed to prove its case against the appellant. According to the learned counsel, his client has established that the place of occurrence is the disputed piece of land which is in his possession. According to the learned counsel, for the complainant party, in order to snatch the possession from the appellant, intervened in the suit-land on the day of occurrence. They were armed with fire-arms which were used in the occurrence and on the firing of the accused party, the complainant received bullet injury which ultimately resulted into his death. It was further submitted that the person who was nominated as a co-accused has been arrested and made to face trial before the trial Court. In order to provide an opportunity to cross-examine the prosecution witnesses, the first prosecution witness has been re-summoned. This process shall cause inordinate delay. Therefore, under these circumstances, it will be in the interest of justice to allow the appellant the concession of bail. He strenuously pressed that while deciding a bail matter, the plea raised by the accused party is also to be taken into consideration. He read certain portions of statements of prosecution witnesses to establish that the defence version is more plausible that the complainant party was aggressor-. According to him, it is an established fact that the complainant party entered into the disputed portion of land which was under the possession of his client with fire-arms and indulged in firing which caused injury on the person of complainant who later on succumbed to such injury and died. According to the learned counsel, at least in the light of these facts of the case, the involvement of his client needs further inquiry into his guilt. Therefore, he, on the basis of law on the subject, is entitled to the concession of bail which was rightly allowed to him by the trial Court but was illegally deprived of the same by the Shariat Court. Reliance was placed upon a case reported as Muhammad Abbas and another v. The State PLD 1988 SC (AJ&K)
14, wherein it is laid down:-- "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
' In Barkat Ali and others v. The State 1979 PCr.LJ 147, bail was allowed to an accused person in -an offence under sections 307, 325, 148 and 149, P.P.C. On three grounds; (i) that no specific part was assigned to him in the F.I.R.; (ii) that a cross-case relating to the same occurrence was registered by the accused persons which was still under investigation; and (iii) that in the case against him, the complainant had suppressed the injuries suffered by the accused party and registration of cross-case against them. Keeping in view the circumstances of the case, it was held that the case against the accused-petitioner needed further inquiry to ascertain as to which party took lead in aggression.
' Muhammad Sadiq and 3 others v. The State 1984 PCr.LJ 2944, was again a case under sections 307, 326, 148 and 149, P.P.C. The bail was allowed to the accused party on the ground that the question as to who was in possession of the disputed property and which of the parties was aggressor was yet to be determined after recording the evidence. Therefore, the case was found one of further inquiry and the bail was granted.
5. Conversely, it was argued by Raja Mazhar Iqbal, Advocate, that the appellant is specifically nominated as a principal accused as he is alleged to have killed the deceased. The dying declaration of the deceased is on the record. On the basis of these documents, in previous two rounds of litigation, he was declined the concession of bail by all the Courts including this Court.
According to him, the prosecution had completed its evidence against the appellant when his other companion who was absconding was apprehended by the police and made answerable before the Court of law. In order to provide an opportunity to the co-accused recently apprehended by the police to cross-examine the prosecution witnesses, the prosecution witnesses have been summoned second time in the Court. According to him, at this stage no finding should be given by this Court for and against the prosecution or defence because that shall prejudice the trial Court to form an opinion while recording final judicial verdict in the case. Reliance was placed on a case of this Court reported as Nadeem Akhtar v. Muhammad Arshid 1994 SCR 211, wherein the bail granted by the Additional District Court of Criminal Jurisdiction to the appellant was recalled by the Shariat Court and this Court also rejected his appeal on the ground that prima facie his case was covered by prohibitory clause of subsection (1) of section 497, Cr.P.C.
6. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. We fully agree with the learned counsel for the appellant that the question of bail cannot be decided in vacuum. The Court has to apply its mind on material available on the record. However, at the same time it is an admitted principle of law that sifting of evidence in minute detail is not allowed at bail stage. In the same way the merits of the prosecution and defence case are not to be considered in minute details in order to draw any conclusion from the facts of the case as it is exclusive function of the trial Court and the superior Courts while deciding the bail matters, therefore, are prohibited to anticipate certain facts while dealing with ancillary matters like grant of bail pending trial. The accused-appellant was denied bail in previous rounds even by this Court. The learned counsel for the appellant, in the light of certain portions of the statements of prosecution witnesses, wants us to believe that the case, as put up by the defence, is more plausible because the occurrence took place in a portion of land which was in the possession of the accused-appellant and it was also a bone of contention between the parties. The weapon of offence was also recovered from the possession of prosecution witnesses. Let us make it clear that while appreciating the evidence, the statement of a witness is to be taken as a whole. In this case all the prosecution witnesses have blamed the appellant that he was responsible for the death of the complainant. The medico-legal report, prima facie, supports the prosecution version. At this stage we, in the light of law on the subject of bail, are required to conduct tentative assessment of evidence because minute appraisal of evidence may prejudice the case of either party. Without minute assessment of the material, no opinion can be formed for and against prosecution or defence. This Court being Constitutional Court can intervene only if in its opinion the discretion exercised either way while deciding a bail matter is violative of recognized principles relating to bail matters because a Judicial Officer is not expected to exercise his discretion on whims, inferences, suspicions and mere allegations in support of charge. In the present case, in our view, the learned Judge in the Shariat Court has committed no illegality. Therefore, the discretion exercised by him in judicial manner does not require any interference by us The appellant is facing trial of the case for the last four years. The trial Court shall ensure early disposal of the case and for that purpose it may take this case for hearing even out of turn. In the light of above, finding no force in this appeal, the same stands dismissed.