' MUHAMMAD YUNUS SURAKHVI, C.J.--- This appeal has been directed against the consolidated judgment passed by the Shariat Court on 19-3-2003, whereby the revision petition filed by the appellant herein was dismissed while that of the accused-respondent, Mobeen, was accepted and he was also released on bail.
2. The brief facts, giving rise to the present appeal, are that a case under sections 302 and 34, A.P.C.
Was registered at Police Station Nar, District Kotli, against the accused-respondents on the written application of the appellant herein. It was stated in the application by the complainant-appellant that she is resident of Chaghjoti Kajlani, Tehsil and District Kotli. On the night between 23rd and 24th January, 2002, at about 2-00 O'Clock, she woke up on hearing someone walking. Her daughters Sakina Begum and Nagina Begum were sleeping in a room of their residential house. Her husband Muhammad Khan, alongwith one 'Zafar was sleeping in the Veranda whereas the complainant- appellant was also sleeping on the other side of the Verandah. At about 2-00 O'Clock, when she woke up on hearing someone walking, the lights were off and she-saw three or four unknown persons dragging her husband towards the stairs. She started crying for help. In the meantime one of the accused persons fired at- her husband. The fire hit him at left side of the chest. All the- accused persons ran away from the place. Of occurrence through stairs. On listening the sound of fire and hue and cry; the daughters of Complainant and other residents of the locality came at the place of occurrenee. Muhammad Khan, the husband of complainant-appellant, succumbed to the injures. It is further stated in the application that some unknown persons killed Muhammad Khan, the husband of complainant. The complainant further stated in the application that she believes that her family has no enmity with anybody.
3. After the registration of the case, the police started investigation and arrested the accused- respondents (i) Sarfraz alias Paloo, son of Sher Baz, (ii) Shahid Iqbal, son of Inayatullah and (iii)
Mobeen son of Nisar Khan, castes Rajput, residents of Chaghloti Kajlani, Tehsil and District Kotli, for the commission of offence of murder of Muhammad Khan. All the accused persons after their arrest applied for bail before the trial Court. The bail was allowed to Sarfraz and Shahid Iqbal whereas the same was refused to Mobeen vide the order of trial Court dated 20-11-2002. This order of releasing the accused-respondents Sarfraz and Shahid Iqbal was challenged through a revision petition by complainant-appellant, Mst. Maqsood Begum and through a separate revision petition by accused-respondent, Mobeen, for his release on bail. As stated earlier, a learned Judge in the Shariat Court vide his impugned judgment, dated 19-3-2003 dismissed the revision petition filed by the complainant-appellant, Mst. Maqsood Begum, and allowed the revision petition filed by accused-respondent, Mobeen, and he was also released on bail. It is the, aforesaid judgment of the Shariat Court dated 19-3-2003 which is the subject-mater of present appeal before this Court.
4. Mr. Muhammad Yunus Tahir, the learned counsel for the -complainant-appellant, while arguing the case submitted that the trial Court as well as the Shariat Court have committed a serious illegality while allowing bail to accused-respondents. It was submitted by the learned counsel that the prosecution has, a very strong case against the accused-respondents and the material collected by the Investigating Agency is sufficient enough to connect all the accused-respondents with the commission of alleged offence. He further contended that the presence of all the accused persons at the place of occurrence at the relevant time stands established. All the accused persons entered into the house of the complainant at odd hours of night and killed her husband, as such all of them are equally responsible for the commission of murder of deceased. The learned counsel contended that although the accused-respondent, Sarfraz alias Paloo and Shahid Iqbal, did not fire upon anybody, yet they were armed with deadly weapons and their presence at the scene of occurrence at odd hours of night cannot be excluded from consideration, as such all the three accused are vicariously liable for the commission of offence of murder. The learned counsel contended that the trial Court as well as the Shariat Court fell in grave error by appreciating the prosecution evidence into minute details and thus, wrong conclusions were drawn and the accused-respondents were bailed out by ignoring the fundamental principles relating to bail matters. The learned counsel contended that although both the Courts below have mentioned that the appreciation of evidence into minute details is not permissible at the stage of bail yet while releasing the accused-respondents on bail, both the Courts dived deep into the appreciation of evidence. The learned counsel further maintained that neither the trial Court nor the Shariat Court took into consideration the evidence of eye-witnesses who last saw the accused persons and identified them as Sarfraz, Shahid Iqbal and Mobeen, who were running away from the scene of occurrence after, the commission of offence. The learned counsel vehemently urged that all the accused persons soon after the commission of offence were identified by the prosecution witnesses, namely, Azad son of Nazir caste Jat, resident of Chaghloti Kajlani, and Habib alias Farid son of Aziz, caste Jat, resident of Chaghloti Kajlani and both of them have unanimously stated that when they heard the hue and cry on the night of occurrence, they went towards the house of complainant and saw the accused-respondents who were armed with deadly weapons such as .12 bore (repeater) gun. According to them, Sarfraz was armed with a gun and both Shahid Iqbal and Mobeen had wrapped Chaddars on them whereas Sarfraz had not wrapped his face by Chadar.
Both these witnesses asked the accused persons that why they were running away from the scene of occurrence with deadly weapons but all of them gave no reply to them. These witnesses then reached immediately on the scene of occurrence and saw the dead body of Muhammad Khan.
Both of them have categorically stated that the occurrence took place on 23rd of January, 2002, at the time of night. It has been explained by one of the witnesses, namely, .Azad, son of Nazir, that he did not get his statement recorded before the police as he was scared of the accused persons but after some time he realized to get his statement recorded whatever he saw at the time of night regarding the occurrence. The learned counsel for the complainant-appellant submitted that the mere fact that the statements of these witnesses were recorded by the police on 2-2-2002, does not detract the trial Court as well as the Shariat Court to disbelieve these witnesses on the ground that their statements under section 161, Cr.P.C. Were recorded after about 8 days of the occurrence.
The learned counsel further submitted that the trial Court as well as the Shariat Court even did not look into the evidence of these two witnesses who are residents of the same village and who saw the accused-respondents running away from the scene of occurrence while armed with deadly weapons at odd hours of night. The statements of these witnesses are corroborated by the supplementary statement of complainant-appellant recorded by the police on 26-1-2002, wherein she categorically stated that when the accused-respondent were running away from the scene of occurrence, after firing at the deceased, one of the accused persons said "uncle run away" and she recognized the voice of Mobeen, accused. The learned counsel also contended that, it was overlooked by the trial Court as well as the Shariat Court that all the weapons of offence, with which the accused were armed, were recovered at their instance vide recovery memos. Attached with the file of this Court from pages 13 to 16. The learned counsel also maintained that from the place of occurrence one empty of .12 bore gun was also recovered which fully corroborates the story of prosecution. The learned counsel contended that by the recovery memos, it reveals that all the accused persons were armed with deadly weapons; rifle of .222 bore was recovered at the instance of Sarfraz, .12 bore (repeater) gun at the instance of Meheen and .30 bore pistol at the instance of Shahid Iqbal, accused. The story of prosecution stands corroborated even by the medical evidence wherein it has been opined by the doctor, who conducted the autopsy of the deceased, that in his opinion the cause of death of deceased is a fire-arm injury but both the Courts below have dilated upon such material which does not justify the release of accused persons on bail. The learned counsel also contended that the prosecution version also stands corroborated by the statement of one of the accused persons recorded under section 242, Cr.P.C.
Wherein he has admitted the occurrence to be true. The learned counsel for the complainant- appellant in support of his contentions placed reliance on the cases reported as Muhammad Nasim Khan v. The State 1995 SCR 237 and unreported cases of this Court titled Asghar Ali v.
Ikhlaqat Ali and another Criminal Appeal No,11 of 2001, decided on 30-10-2001 and Shakeel Ahmed v.
State Criminal Appeal No,15 of 1987, decided on 9-6-1987.
5. Controverting the arguments raised by the learned counsel for the complainant-appellant, Ch. Muhammad Siddique, the learned counsel for the accused-respondents, contended that the prosecution story being highly doubtful needs further probe and enquiry: He also contended that the accused persons are not named in the F.I.R. And the statements of the alleged prosecution witnesses having been recorded after about a week of the occurrence cannot be held to be true when there is no explanation whatsoever on behalf of the prosecution as to why their statements were recorded so late. The learned counsel contended that the alleged .12 bore gun and the empty of .12 bore gun, recovered from the place of occurrence, were sent to Forensic Expert who has stated in his report that the empty has not been fired by the said gun, so the prosecution story is negated by the evidence of Arms Expert. The learned counsel stated that the report of Forensic Science. Laboratory shows that the crime-empty was not fired from the alleged weapon of offence as such the accused-respondents have been involved in false case on account of enmity. The learned counsel also submitted that in the F.I.R. No motive has been attributed against the accused by the complainant-appellant but with the passage of time a false motive was attributed against the accused persons in their statements recorded under section 161, Cr.P.C. It was finally contended by the learned counsel that for the aforementioned reasons the appeal filed by the complainant- appellant may be dismissed and this Court should not interfere in the judicial discretion exercised by the trial Court and the Shariat Court. The learned counsel for the accused-respondents in support of his contentions placed reliance on the cases reported as Ghulam Haider Gadehi v. The State 2002 PCr.LJ 564, Muhammad Abbas and another v. The State PLD 1988 SC (AJ&K)
14. And Mubarak Ali v. The State 2003 PCr.LJ 986.
6. Sardar Abdul Razik Khan, the learned Additional Advocate-General, fully supported the arguments raised by the learned counsel for the complainant-appellant.
7. We have heard the respective contentions of the learned counsel for the parties and perused the relevant record made available with care. It may be stated that it has been held by this Court in most of its pronouncements that at the stage of bail the prosecution evidence is not to be appreciated in minute details. Only the tentative assessment of evidence is desirable and permissible at the stage of bail and not the deep scrutiny or appreciation of evidence, but despite knowing this basic principle, both the Courts below have dived deep into the evidence and drawn the conclusions which are not desirable at this stage. A fundamental principle has been laid down by this Court that at the stage of bail if the prosecution version, as it is, remains unrebutted, it has got to be believed as such; however, at the stage of conclusion of trial, the trial Court is vested with the jurisdiction to sift the grain out of the chaff but at the stage of bail such an exercise is not desirable nor the same is in consonance with the settled principles of bail matters. The prosecution case, prima facie connects the accused-respondents with the commission of offence alleged and is supported by the ocular version of Mst. Maqsood Begum, complainant-appellant and both the eye-witnesses, namely Azad and Habib alias Farid, who saw the accused persons running away from the scene of occurrence while armed with the deadly weapons. The ocular version of prosecution is supported by the medical evidence. As stated earlier, it has been stated by the doctor, who conducted the autopsy of deceased, that the death of deceased took place on account of fire-arm injury. From the scene of occurrence, as alleged by the prosecution, an empty of .12 bore gun was also recovered by the police. The mere fact that the statement of complainant- appellant, Mst. Maqsood Begum was recorded on -26-1-2002 and the statements of the other two witnesses were recorded after about a week of the occurrence, does not detract them not to take into consideration their statements, particularly when one of the witnesses, namely Azad, has deposed in his statement recorded under section 161, Cr.P.C. That he was scared of the accused persons and for this reason did not immediately get his statement recorded. Both the witnesses as well as the complainant-appellant have to appear as prosecution witnesses in the witness-box and the accused persons and their counsel will be at liberty to cross-examine these witnesses and to ask the reason for getting their statements recorded late by the police. At the stage of bail, as observed earlier, it cannot be presumed that these witnesses are planted and untruthful witnesses.
8. In a case reported as Shakeel Ahmed v. State Criminal Appeal No,15 of 1987, decided on 9-6-1987 it was argued on behalf of the accused, Shakeel Ahmed, that the statements of prosecution witnesses were recorded after about ten days without furnishing any explanation for the late recording of statements, as such the same should not be believed to be true but the Court while dismissing the bail application of the accused, Shakeel Ahmed, observed as follows:-- "We are of the opinion that there is circumstantial evidence on the record which, prima facie, connects the accused with the commission of the offence. As has already been pointed out that, according to the statement of Sabir Hussain, on 15-7-1986 the deceased had told him that he was going to the house of the appellant; he was subsequently last seen with him; the bloodstained clothes and shoes and hatchet were recovered at the instance of the appellant. .... At the stage of bail a deep scrutiny of the evidence, ocular or circumstantial, is neither possible nor desirable. The close scrutiny of the evidence is only possible and desirable after the statements of the witnesses are recorded at the trial and they are subjected to cross-examination. At the stage of bail if there is a material which, if remains unrebutted, prima facie, connects the accused person with the offence punishable with death or transportation of life, he must be refused the concession of bail."
9. In another titled Asghar Ali v. Ikhlaqat Ali and another Criminal Appeal No,11 of 2001, decided on 30-10-2001, referred to by the learned counsel for the complainant-appellant, it was observed by this Court in a following manner:-- "Thus, without going into the deep scrutiny of the worth of the statement of last-seen witness as the same is still to be subjected to cross-examination by the defence when the witness puts himself in the witness-box who may explain the circumstances for getting his statement recorded after the delay of about 27 days but at the present moment in existence of last-seen evidence of Aftab Hussain and the recovery of weapon of offence at the instance of accused and its corroboration by medical evidence, if remains unrebutted, it is sufficient in the eye of law to refuse the concession of bail to the accused-respondent."
10. In our considered view in the instant case the material collected by the prosecution is on much more strong footing than the cases of Shakeel Ahmed and Ikhlaqat Ali, referred to above. In the instant case the evidence of eye-witnesses like complainant-appellant and that of Azad and Habib alias Farid, who saw the accused persons running away from the scene of occurrence at the odd hours of night and were armed with deadly weapons and when they were asked by the witnesses as to wherefrom they were coming and their giving no reply whatsoever, the medical evidence, the crime-empty recovered from the place of occurrence and the weapons of offence recovered at the instance of accused-respondents, coupled with the inculpatory confession of one of the accused, namely Sarfraz, who admitted the occurrence in his statement recorded under section 242, Cr.P.C. Is sufficient material to connect the accused-respondents with the commission of alleged offence as was observed in a case reported as Zulfiqar Ali Bhutto v. State PLD 1979 SC 53 that admission by an accused person of his own guilt affords some sort of sanction in support of truth of his confession against the others as well as himself. Such considerations, however, were held not to be applicable for the use against its maker when the statement partly inculpatory and partly exculpatory, but in the case in hand, one of the accused, namely Sarfraz, has prima facie made a inculpatory statement which can safely be used against the other accused persons.
11. We are also aware of the fact that normally this Court does not interfere in the judicial discretion exercised by the Courts below but where the discretion, on the face of it, appears to be artificial and capricious, this Court always interferes even at the stage of bail and can exercise the power vested in it for setting right the things which were not taken into consideration by the Courts below.
The case in hand appears to be a case of non-reading of material evidence as well. Therefore, where there is a total misreading of evidence, this Court has the jurisdiction to interfere at the stage of bail.
12. Ch. Muhammad Siddique, the learned counsel for the accused-respondents, in support of his contentions has relied upon a case reported as Mubarak Ali v. The State 2003 PCr.LJ 986. This case is not applicable to the case in hand keeping in view the facts and circumstances of the present case. When this citation was read over during the arguments, it was rightly pointed out by us that the same appears to have been recorded while setting aside the conviction of an accused person.
It was observed in the aforesaid authority that the occurrence had taken place during night but no source of light was mentioned in the F.I.R. It was further observed that law did not provide for any supplementary statement which was always recorded to fill up the lacunas of the case of prosecution. No reasons for the murder of deceased was disclosed in the F.I.R. Crime-empties collected from the spot were sent to Fire-arm Expert after 25 days of the occurrence. The incident was unwitnessed one. The prosecution case was replete with doubts, the benefit of which was to go to accused as of right. The accused was acquitted in the circumstances.
13. We have no quarrel with the abovementioned principle laid down in the citation but suffice it to say that this authority was given while finally acquitting the accused person as his case was doubtful and it was observed that benefit of doubt always goes to the accused not as a matter of grace but as a matter of right. Moreover the said case there was no explanation for crime-empties which were collected from the spot and the Expert's evidence was given after 25 days of the occurrence while furnishing no explanation whatsoever and thus the same was rightly excluded.
14. The other two authorities cited by the learned counsel for the accused-respondents, titled Ghulam Haider Gadehi v. The State 2002 PCr.LJ 564 and Muhammad Abbas and another v. The State PLD 1988 SC (AJ&K) 14 having nothing common with the facts and circumstances of the case in hand, are not applicable to the present case. It may also be pointed out that an authority in one bail matter is not necessarily to be applicable in the others bail matter because every case is to be decided keeping in view its own peculiar facts and circumstances.
15. For the aforestated reasons, by allowing the appeal, we set aside the impugned judgments passed by the Shariat Court on 19-3-2003 and that of the trial Court, dated 20-11-2002 and order for cancellation of bail of all the accused-respondent who are prima facie vicariously liable for the commission of alleged offences. With these observations, the appeal, as stated above, stands accepted. The personal as well as the surety bonds executed by the accused-respondents are set aside. The accused-respondent shall be immediately arrested and confined to judicial lock-up for facing their trial before the trial Court, however, they will be at liberty to renew their prayer for bail after having recorded the evidence of complainant-appellant and two witnesses, namely' Azad and Habib alias Farid, by the trial Court.