' CHAUDHARY MUHAMMAD TAJ, This appeal has been filed against the judgment and order passed by the Shariat Court on 20-3-2002 whereby a revision petition filed against the order of the District Court of Criminal Jurisdiction, Mirpur was dismissed.
2. The facts are that the appellant lodged a report with the Islamgarh Police Station therein that his father Altaf Hussain was living with his second wife Mst. Shamim Akhtar, accused-respondent No,2.
It was learnt on 19-1-2001 at 8-00 a.m. That he committed suicide. The appellant alongwith his real brother Ashfaq Ahmad went to the place of occurrence where the dead body was lying on a cot.
The appellant's brother on the information furnished by accused-respondent No,2, filed a report of suicide but the correct position was that his -father was murdered. A case under section 302, A.P.C.
Was registered and after investigation challan was submitted before the District Court of Criminal Jurisdiction, Mirpur under sections 302, 201, 109 and 34, A.P.C.
3. The respondents, who were apprehended, filed their bail applications before the trial Court which were accepted. The appellant challenged the order passed by the District Court of Criminal Jurisdiction before the Shariat Court through a revision petition which was dismissed. Hence, this appeal.
4. Ch. Ali Muhammad, the learned counsel representing the appellant, contended that appellant's father was residing with his second wife accused-respondent No,2, who had illicit relations with accused-respondent No,
1. The respondents murdered the father of the appellant as accused- respondent No,2 had strained relations with the deceased. It was argued by the learned counsel that initially a suicide report was made on the information furnished by the accused-respondent No,2 but when it transpired that appellant's father was murdered, another report was lodged in this regard. It was further maintained that there is ample evidence constituting a prime facie case on the basis of circumstantial evidence that the accused-respondents have committed the offence of murder as such they were not entitled to the concession of bail. Ch. Ali Muhammad laid a stress that the post-mortem report clearly suggests that the story of suicide furnished by accused- respondent No,2 was against the true facts. It was also contended that there was evidence that accused-respondent No,1 also entered the deceased house at night time, therefore, no other view can be taken except that the deceased was murdered by the accused-respondents who were inside the house. It was also argued that a video-cassette translated in Urdu also supports the prosecution story.
5. Sardar Abdul Razzik Khan, the learned Additional Advocate-General, also adapted the arguments addressed on behalf of the appellant and prayed for the cancellation of bail.
6. Ch. Sakhi Walayat who appeared on behalf of the respondents, while controverting the arguments addressed on behalf of the appellant, argued that there was no prima facie case existing against the accused-respondents. The evidence proposed against the accused- respondents is doubtful, contradictory and is not confidence-inspiring, therefore, the case is of further probe. It was forcefully argued that the First Information Report was lodged after a delay of two months and statement of the prosecution witness in respect of accused-respondent No,1 allegedly entering the house of the deceased was made after six months before the police.
7. We have heard the learned counsel for the parties and also gone through the record. A suicide report was lodged at Islamgarh police station by the real brother of the appellant. However, subsequently another report that his father was murdered was also lodged by the appellant at the same police station. The police after investigation arrived at a conclusion that the respondents are guilty of the offence of murder under sections 302, 201, 109 and 34 A.P.C. The accused-respondents were sent to face trial under the aforesaid offences.
8. The accused-respondents after ,their arrest moved bail applications before the trial Court which were accepted. A revision petition filed against the aforesaid order on behalf of the appellant herein was dismissed by the learned Single Judge in the Shariat Court. It was held by the trial Court as well as the Shariat Court that the matter requires further probe as such is of further inquiry, therefore, the accused-respondents were held entitled to the concession of bail under subsection
(2) of section 497 Cr.P.C.
9. While considering a bail matter of an accused involved in a non-bailable offence, if there is 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. To form an opinion, the Court has to look into F.I.R. The statements of the prosecution witnesses recorded under section 161 Cr.P.C. And the order incriminating material collected by the prosecution including any plea of the accused. 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 that 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.
10. In the present case the prosecution has mainly relied upon the evidence of post-mortem report which, according to them, leads to the inference that a murder was committed. The other evidence proposed by the prosecution is the statement of Ghazanfar Ali recorded by the police under section 161, Cr.P.C. And a video-cassette containing the conversation of accused-respondent No,2 with the deceased. This evidence according to the observations made by the trial Court as well as the Shariat Court requires further probe, therefore the matter was regarded as of further inquiry. In a case rested upon circumstantial evidence it is no doubt an important fact to be considered that the deceased was lastly seen in whose, company. The post-mortem report also prima facie negates the story of suicide but the fact remains that First Information Report in respect of murder was lodged nearly after two months. Similarly, the statement of prosecution witness Ghazanfar Ali was recorded after about six months who, according to the prosecution, has seen the accused- respondent No,1 entering the deceased's house at night time. Therefore, the matter of accused- respondents connected with the offence certainly requires a further probe as it is yet to be proved in evidence that they have committed the offence. The question of filing the delayed First Information Report and the statement of the prosecution witness recorded after a considerable time would also have to be tested in the regular evidence. It is also to be seen whether a video cassette is that of the accused-respondent No, 2 and deceased and the same connects the accused respondent No,2 with the offence. The accumulative effect of all these pieces of evidence shows that the matter requires further inquiry. It is also to be seen that both the Courts below, the trial Court as well as the Shariat Court, have proceeded to allow concession of bail to the accused- respondents. Weight has to be given to the opinion of the trial Court.
' In the circumstances we do not find any illegality or arbitrary exercise of jurisdiction as such the order passed by the Shariat Court is maintained by dismissing the appeal.