' CHAUDHARY MUHAMMAD TAJ, J.--This appeal has been filed against the judgment and order passed by the Shariat Court of Azad Jammu and Kashmir on 9-7-2003 whereby the bail allowed by the trial Court was cancelled.
2. The facts giving rise to this appeal are that a case under sections 302/458, 324/34, A.P.C. Was registered at Police Station Rawalakot on the report of Muhammad Rahim Khan. It was alleged that on the night falling between 20 and 21 December, 2002 at about 1-00 a.m. Four unknown persons entered the house after switching off the main switch. They went to Mst. Fatim Jan wife of Pervaiz Akhtar and injured her hand with knife. Meanwhile, on alarm Mst. Sakhiy Begum woke up who was seriously injured by them through knife blows. She succumbed to the injuries. Thereafter Mst.
Zahurat was attacked who also received injury on her leg.
3. After investigation the police submitted a challan under sections 302/458, 324/34, A.P.C. And 10 Z.H.A. Before the District Court of criminal jurisdiction Rawalakot. The appellant moved an application for grant of her bail before the trial Court which was allowed. However, a criminal revision filed with the Shariat Court on behalf of complainant was accepted and the bail was cancelled. This appeal challenges the aforesaid order.
4. Mr. Sardar Khan, the learned counsel representing the appellant raised the following points in support of appeal:--
(i) that there is no prima facie case existing against the appellant it was explained that she was the inmate of the house where her mother-in-law Mst. Sakhiy was murdered by unknown accused persons. The F.I.R. Was lodged on the next day after deliberations but she was not nominated;
(ii) that the prosecution has failed to bring any evidence which may connect the accused- appellant with the offence charged;
(iii) that the whole prosecution case depends upon the confession statement of the appellant recorded under section 164, Cr.P.C. Which was secured after consistent torture and was neither voluntary nor true. It does not find any corroboration proposed by the prosecution as well;
(iv) that the trial Court after due appreciation of the facts and law proceeded to allow the bail to the appellant and the learned Chief Justice in the Shariat Court without appreciating the law in this regard cancelled the bail on the grounds not tenable in law.
5. Mr. Shamshad Hussain Khan, the learned counsel for the compOinant and the learned Assistant Advocate-General while defending the order argued in the following manner: - -
(i) That there was a strong prima facie case disclosed by the prosecution against the appellant and other accused persons. It was contended that the appellant through a voluntary statement made before the Magistrate recorded under section. 164, Cr.P.C. Confessed the crime committed by her. It was argued that the statement disclosed that the accused appellant had illicit relations with the accused-persons. Therefore, with her connivance the accused entered the house and murdered Mst. Sakhiy Begum her mother-in-law to remove her from the scene who had previously noticed her meetings with the accused-persons and also threatened her to get her divorced from her son;
(ii) that the judicial confession was further supported by the recovery of appellant's Shalwar stained with semen taken into possession by the police. The Chemical Examiner's report also supported the aforesaid fact. It was explained that accused persons had committed Zina with the appellant on the day of occurrence;
(iii) that this Court ordinarily does not interfere in the orders passed by the Shariat Court unless a glaring illegality is noticed.
' We have heard the learned counsel for the parties and also gone through the record carefully. The prosecution's case precisely is that the appellant connived with the accused-persons for the murder of Mst. Sakhiy Begum her mother-in-law to do her away as she had on previous occasion noticed her meeting with the accused-persons in objectionable manner. The prosecution case rested on the confessional statement recorded under section 164, Cr.P.C. And recovery of her Shalwar stained with semen alongwith the report of Chemical Examiner brought on record.
6. While considering a bail matter of an accused involved in non-bailable offence if there appear 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 of subsection 1 of section 497, Cr.P.C. 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 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.
7. It is important to be considered that the Court while dealing with the question of bail can assess the incriminating material and the evidence brought by the prosecution as there are no restrictions on Court's power to assess the evidentiary value of the material placed before it. Though the Court is not called upon to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has nevertheless, to see whether there exist reasonable grounds upon which its belief can be founded. It is required that material placed before it by the Investigating Agency be looked. The proposition can be better understood through a judgment passed by the Supreme Court of Pakistan in case titled Khalid Javed Gillani v. The State PLD 1978 SC 256 where following observations were made:-- "It follows that the Court has to make a tentative assessment of its evidentiary value in order to decide a bail application, the moreso, as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it. But the section is a part of a Code under which the guilt or innocence of the accused has to be determined in the light of the evidence which is produced when the trial of the accused begins, therefore, whilst deciding a bail application, the Courts, and especially the superior Courts must refrain directly or indirectly, from giving any conclusive finding on the question of the guilt or innocence of the accused, and it may be that an application for bail may fail, if it cannot be decided without any elaborate sifting of evidence. But because the Court must not prejudge the case of the prosecution or of the accused, this does not mean that the Court can shrike its obligation to decide the application for bail before it, and that application can only be decided by Courts' belief about the material produced before it."
7. A similar proposition also came under consideration before the Supreme Court of Azad Jammu and Kashmir in a case titled Zahid Paris v. The State 1995 SCR 104 wherein it was held as under:-- "At the bail stage it is neither permissible nor desirable to make a deep scrutiny or minute study of the evidence on record. At the same time Courts are not expected to make an order in vacuum.
The Courts of law are supposed to make a tentative assessment of the F.I.R., statements of P.Ws.
Recorded under section 161, Cr.P.C., the recovery evidence, the defence plea if any and other circumstances and facts of the case and to reach a conclusion whether in the given circumstances the accused are entitled to the concession of bail or not."
8. To ascertain reasonable grounds it would be appropriate to see whether a prima facie case is disclosed against the accused for which the F.I.R., the statements of prosecution's witnesses recorded under section 161, Cr.P.C. And other incriminating material brought by the prosecution including the recoveries etc. Are to be taken into account.
9. In the present case as said earlier the allegation attributed to the accused-appellant is that with her connivance the accused persons murdered Mst. Sakhiy Begum. The prosecution relied upon the confessional statement recorded under section 164, Cr.P.C. Where she allegedly confessed the crime and the recovery of Shalwar stained with semen. It would be relevant to see without entering into the deeper appreciation to avoid any prejudice to either party, that the aforesaid confession according to the appellant was not voluntary and true which was retracted during the trial. The appellant moved applications in this regard to the trial Court as well. To see as to whether the aforesaid matefial does disclose prima facie case we have to see as to what is the evidentiary value of the confession whether retracted or unretracted, judicial or extra-judicial. The proposition was debated' before the Supreme Court of Pakistan in a case titled The State v. Minhun alias Gul Hassan PLD 1964 SC 813 where the same was resolved in the following words at page 822:- "As for the confessions the High Court, it appears, was duly conscious of the fact that retracted confessions, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well-settled that as against the maker himself his confession, judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture on coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. As observed even by Munir, C.J. In his commentary on the law of Evidence at page 168 (Vol.1) "it is a settled rule of evidence that unless a retraced confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength along. It is the duty of the Court that is called upon to act upon a retracted confession to enquiry into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true."
10. A similar question arose before the Federal Shariat Court of Pakistan in a case titled Ali Akbar v.
State 2001 PCr.LJ 890 where it was held:-- "It is unfortunate that the prosecution agencies after extracting confessional statement of the accused person take it for granted that they have won the war against the crime and that there is no need to find out the voluntariness and truthfulness of such confession through other circumstantial evidence with special reform to the fact stated in such statement. The agencies do not proceed scientifically and do not apply their mind to its contents.
' Basing reliance only on confessional statement, 'as stated above, has hampered and eroded the efficiency of Investigation Agencies, In large number of cases, when confessional statement is retracted in absence of any corroborative evidence in line with the contents of the statement results in failure of prosecution case"
11. We noticed the following important features of the prosecution case:--
(i) That the F.I.R. Though made on the subsequent day did not nominate the appellant or otherwise show her complicity, connivance or otherwise any connection with the offence;
(ii) that the confessional statement before the Magistrate under section 164, Cr.P.C. Was recorded after 24 days of the occurrence. The appellant has retracted from confession, therefore, it is yet to be proved that it was voluntary, true and without any duress or inducement;
(iii) that none of the inmates of the house including the deceased disclosed anything against the appellant in relation to the appellant's complicity though the deceased, according to the prosecution, succumbed to the injuries after half an hour and others including the complainant arrived to the place of occurrence;
(iv) that no evidence whatsoever was proposed to corroborate the confessional statement except the recovery of alleged Shalwar stained with semen which was taken into possession after 13 days of the occurrence and it also requires further inquiry as to whether the said Shalwar belongs to the appellant and semen is also that of accused persons, who according to prosecution. Committed Zina with appellant; ( v) that the deceased Sakhiy Begum, the mother-in-law of the appellant, in her life time did not tell the story of appellant's meeting on earlier occasion with accused persons to any one;
(vi) that the appellant's case does not fall in the prohibitory clause of section 497, Cr.P.C., for being a lady.
' In view of the above it is held that the matter is of further inquiry, therefore, we are of the view that the order passed by the learned Judge in the Shariat Court was not a lawful exercise of jurisdiction, therefore, the same is set aside by accepting the appeal. The appellant shall be released on bail on executing a bail bond in the sum of Rs.2,00,000 with one surety and a personal bond in the like amount to the satisfaction of any Magistrate 1st Class, Muzaffarabad/Rawalakot provided she is not required in any other case or offence.