' MUHAMMAD YUNUS SURAKHVI, This appeal has been directed against the judgment passed by the Shariat Court of Azad Jammu and Kashmir on 30-7-2002, whereby the accused-respondents, Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah, were released on bail.
2. The necessary facts, giving rise to the present appeal, are that an F.I.R. Was lodged against the accused-respondents Muhammad Mushtaq and others on 26-1-2001 at 3-45 a.m. At Police Station Kotli by the appellant, Muhammad Arshad, son of Muhammad Akbar, for the commission of alleged offences under sections 302, 324, 337-A, 458/34, A.P.C. After the necessary investigation, the police submitted a challan No,51 of 2001 under section 173, Cr.P.C. Before the District Court of Criminal Jurisdiction, Kotli on 10-3-2001, wherein the accused-respondents, Muhammad Mushtaq, Muhammad Ashfaque, Ishtiaq Hussain Shah, Muhammad Fazil and Gulzar Khan, were found guilty of offences under sections 302, 324, 337/F-3, 458, 34 and 109, A.P.C. The occurrence was stated to have been witnessed, besides Muhammad Arshad, complainant-appellant, by Mst. Mehfooz Jan, widow of Muhammad Akbar deceased, Mst. Farzana, wife of Muhammad Arshad, Muhammad Anwar son of Muhammad Akbar and Mst. Saima, daughter of Muhammad Akbar, deceased.
3. The trial Court recorded the statements of accused-respondents under section 342, Cr.P.C. In which they denied the charges levelled against them and claimed their trial. The prosecution was ordered to produce evidence in support of its case and the case was adjourned for producing the prosecution witnesses.
4. It is alleged by the complainant-appellant that after some time one Muhammad Arshad son of Ali Dad, was apprehended by the local police in connection with some other case with the connivance of accused-respondents. S.H.O. Police Station Kotli, Muhammad Jamil Khan, subjected him to a severe torture and under the coercion got divulged from him that he had committed the murder of Muhammad Akbar. Later on the confessional statement of accused, Muhammad Arshad son of Ali Dad, was recorded by the Magistrate on 23-4-2001, however, he remained in the custody of police instead of being sent to judicial lock-up as ordered by the S.D.M. It is also alleged by the complainant-appellant that with the ulterior motives the local police in collaboration with the accused persons put up a subsequent challan before the District Court of Criminal Jurisdiction Kotli on 17-7-2001, wherein Muhammad Arshad son of Ali Dad, Kamran Aziz and Muhammad Naseer were listed in the line of accused persons.
5. The accused-respondents, Muhammad Mushtaq and others who were challaned in, the first instance by the police, applied for their bail after arrest before the trial Court on 26-3-2001. On 9-4- 2001 the trial Court ordered for issuance of notice to the complainant. On 26-7-2001 the learned District Qazi passed an order that as the other Member (District and Sessions Judge) constituting the Court is on leave, therefore, the appropriate order on the application would be passed on 27-8- 2001. During this period, the accused-respondents moved a transfer application before the Shariat Court on 1-8-2001 on the ground that the learned District Qazi was not dealing with the case fairly and impartially, therefore, their bail application be transferred to some other Court of competent jurisdiction. The Shariat Court treated the said application as an application under section 561-A read with sections 497, 498, Cr.P.C. And ordered the release of accused-respondents vide its order dated 8-8-2001. The Shariat Court observed that as the subsequent challan has been submitted in the District Court of Criminal Jurisdiction, Kotli against Muhammad Arshad son of Ali Dad and 2 others, hence first set of accused persons were liable to be set at liberty. The complainant- appellant filed an appeal before the Supreme Court of Azad Jammu and Kashmir against the aforesaid judgment of the Shariat Court and this Court vide its judgment, dated 8-11-2001 set aside the judgment of Shariat Court. Dated 8-8-2001 and non-bailable warrants for arrest of accused- respondents, Muhammad Mushtaq and others, were issued. This Court also directed that the trial Court should decide whether proceedings against the accused persons shall be carried out in the first challan or in the subsequent challan. The District. Court of Criminal Jurisdiction, Kotli, vide its judgment, dated 31-1-2002 ordered that proceedings shall be initiated in the light of first challan submitted by S.H.O. Police Station Kotli.
6. Muhammad Mushtaq and others, first set of accused persons, as well as the second set of accused persons, on 13-2-2002 moved the District Court of Criminal Jurisdiction, Kotli for after arrest bail. The trial Court vide its order dated 8-5-2002 released accused Muhammad Fazil and Gulzar Khan on bail, however, it refused the concession of bail to accused-respondents Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah. Feelings aggrieved by the aforesaid order, two separate appeals were filed before the Shariat Court of Azad Jammu and Kashmir; one by appellants herein and the other by accused-respondents Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah.
' The first appeal was filed for cancellation of bail of Muhammad Fazil and Gulzar Khan, whereas the second appeal was filed for the release of remaining accused persons on bail. The Shariat Court vide its impugned order dated 30-7-2002 dismissed the first appeal filed by appellants herein whereas it accepted the appeal of accused, Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah for their release on bail mainly on the ground that since subsequent challan of the same occurrence has been filed wherein Muhammad Arshad son of Ali Dad, Kamran Aziz and Muhammad Naseer have been shown as accused persons and against them the trial Court has refused to entertain the challan, as such in its opinion the accused persons, Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah were entitled to bail and similar treatment has to be meted out to them. It is aforesaid consolidated order of the Shariat Court, dated 30-7-2002, against which the appellants herein have filed the present appeal for cancellation of bail of accused-respondents, Muhammad Mushtaq, Muhammad Ashfaque, Ishtiaq Hussain Shah, Muhammad Fazil And Gulzar Khan, the first set of accused persons.
7. In support of appeal, it was vehemently contended by Mallick Muhammad Zarait Khan, the learned counsel for the appellants, that the first challan was presented before the trial Court against the accused-respondents, Muhammad Mushtaq and others, after thorough inquiry and probe and after recording the statements of eye-witnesses under section 161, Cr.P.C. It was also contended that besides the statements of eyewitnesses, the recoveries of weapons of offence, i,e, three .30 bore pistols at the instance of accused persons and the medical evidence also support the ocular version of the prosecution. The learned counsel also contended that the statements of eye-witnesses are corroborated by the evidence of blood-stained clothes of deceased and injured witness, Muhammad Arshad. The eye-witnesses have clearly stated in their statements recorded under section 161, Cr.P.C. That the accused-respondents, Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah, were identified by them, as such the involvement of some other innocent persons by the police on the basis of subsequent challan was not justified and is indicative of the fact that the police wanted to give undue benefit to the first set of accused- respondents who are fully responsible for the murder of Muhammad Akbar, deceased and murderous assault on the person of Muhammad Arshad complainant. The learned counsel further contended that in the subsequent challan the accused, Muhammad Arshad son of Ali Dad, is stated to have been arrested by the police in F.I.R. No,99 of 2001, dated 25-4-2001 who has confessed the murder of deceased Muhammad Akbar. This version of the police, according to the learned counsel for the appellants, on the face of it, is unfounded and baseless because the challan submitted in the District Court of Criminal Jurisdiction, Kotli regarding F.I.R. No,99 of 2001 clearly shows that Muhammad Arshad son of Ali Dad was not shown in the column of accused persons in that case; therefore, the version 'of police regarding the statement of Muhammad Arshad, accused, stands totally belied, as he has not been challaned as an accused in the said case nor his name appears in the F.I.R. The said. Muhammad Arshad was produced before the Magistrate 1st Class, Kotli for getting his statement recorded under section 164, Cr.P.C. On 22-5- 2001. The Magistrate ordered that the accused be kept in judicial lock-up and be produced on 23- 5-2001 for getting his statement recorded under section 164, Cr.P.C. However, the S.H.O. Police Station Kotli instead of sending him to judicial lock-up, as ordered by the Magistrate, kept him under his custody at police station and sent him to judicial lock-up on 24-5-2001 after getting his statement recorded under section 164, Cr.P.C. The learned counsel also pressed into service the submission that even the statement of the said accused recorded by the Magistrate 1st Class suffers from serious infirmities, defects, lacunas and the same cannot be used against the accused persons. Even the essential prerequisites of recording statement under section 164, Cr.P.C. Were not fulfilled. The accused was not warned by the Magistrate that the statement which he was going to make could be used against him or that he was not bound to give such a statement. The accused was not even asked as to wherefrom he was coming. He was even not asked that whether he was giving statement out of his free-will and without any coercion or torture on the part of police. The record of the case shows that a Board of Doctors medically examined the accused which found so many injuries on his person and the same remained unexplained by the police before getting his confessional statement recorded. The Magistrate even did not record a note at the end of the statement that he made aware the accused of the consequences of his statement that he is not bound to make such a statement and if he does so, the same can be used against him and further that the accused made statement out of his free and sweet Will without any coercion or torture on the part of police. It was also not told by the Magistrate to the accused that he would not be sent to police custody after getting his statement recorded. The learned counsel further contended that it is the case of police that the second set of accused persons, who were nominated in the subsequent challan, entered the house of deceased, Muhammad Akbar, in order to commit dacoity whereas none of the accused tried to loot or rob any ornament, property or any valuable article from the house. The learned counsel also maintained that it is also evident from the F.I.R.
That the accused firstly knocked the door- of one room of the house and after getting no response knocked the second door. If the accused had any intention to commit dacoity, then how they kept on knocking the doors' of the house.. The learned counsel further submitted that the accused, Muhammad Arshad son of Ali Dad, Kamran Aziz and Muhammad Naseer, who were challaned in consequence of subsequent investigation, during the police custody made a request before the District Magistrate, Kotli that they were physically tortured by the police on which a Medical Board was constituted and after examining the said accused persons, medical reports were submitted, according to which Muhammad Arshad sustained five injuries, Kamran Aziz sustained two injuries and Muhammad Naseer sustained three injuries. All these injuries have been attributed during the detention of accused persons by the police. The learned counsel pressed into service the submission that against the first set of accused persons, the prosecution, besides the evidence of injured witness, Muhammad Arshad, is in possession of evidence of eyewitnesses, i,e, Mst. Mehfooz Jan, Muhammad Anwar, Mst. Saima and Mst. Farzana, who have unequivocally implicated the accused:- respondents with the commission of alleged offences.
8. Mr. Ashfaque Hussain Kiani, the other counsel for the appellants, also supported the arguments advanced by Mallick Muhammad Zarait Khan, the learned counsel for the appellants.
9. Mr. Abdul Rashid Abbasi, the learned counsel for respondents Nos.1 to 5, by controverting the arguments of the learned counsel for the appellants, submitted that in the First Information Report the occurrence, according to the prosecution, allegedly took place at odd hours of night at 2-30 a.m. According to the learned counsel, the first informant, Muhammad Arshad, did not name any accused person in the F.I.R. And it was stated by him that three persons having mask on their faces entered into his house and fired upon his father, Muhammad Akbar which hit on his chest and on his intervention the accused also fired upon him .Which hit his left hand and left thigh. On the same day, i,e, on 26-1-2001, the statements of the eye-witnesses, Mst. Mehfooz Jan, widow of Muhammad Akbar, Mst. Farzana wife of Muhammad Arshad, Muhammad Anwar, son of Muhammad Akbar and Mst. Saima, daughter of Muhammad Akbar, were recorded by the police. They stated that they saw the accused, Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah, with their own eyes who caused firing on Muhammad Akbar and Muhammad Arshad with their .30 bore pistols. The learned counsel contended that in the subsequent investigation Muhammad Jamil Khan, S.H.O. Who conducted the investigation, reached the conclusion that in fact the murder and murderous assault were committed by Muhammad Arshad, son of Ali Dad, Kamran Aziz and Muhammad Naseer and not by the first set of accused persons. The learned counsel also contended that the police are not debarred from conducting as many investigations as they want in order to arrive at a correct conclusion. According the subsequent investigation, Muhammad Arshad, son of Ali Dad, made a confessional statement before the Magistrate wherein he disclosed that he committed the murder of Muhammad Akbar and caused injuries to Muhammad Arshad son of Muhammad Akbar with the help of Kamran Aziz and Muhammad Naseer. The learned counsel further maintained that when there be two versions of the incident, then the case falls within the ambit of further inquiry and the accused become entitled to the concession of bail. The learned counsel contended that it is correct that in accordance with the subsequent investigation the eye-witnesses of the occurrences are the same, namely, Muhammad Arshad, Mst. Mehfooz Jan, Mst. Farzana, Muhammad Anwar and Mst. Saima. He also conceded that even the place of occurrence and the manner of occurrence is not disputed. He only disputed that as a matter of fact the accused who committed the offence, were not identified by the eye-witnesses, therefore, the accused in the subsequent investigation appear to be real culprits who committed the offence.
10. Raja Ibrar Hussain, the learned Advocate-General and Mr. Riaz Navid Butt, the learned Additional Advocate-General, also supported the arguments advanced by Mr. Abdul Rashid Abbasi.
11. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be pointed out that it is no doubt correct that Muhammad Arshad son of Muhammad Akbar, who is first informant, on 26-1-2001 while lodging the First Information Report did not name the accused persons for which he gave the sufficient explanation in his statement recorded under section 161, Cr.P.C. On the same day and in his supplementary statements. In his statement he stated that he was born in England and was brought up over there and had come alongwith other family members to his native village. When Mst. Mehfooz Jan told him the names of accused persons, he recognized them and stated that the accused Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah with their .30 bore pistols caused injuries on the person of Muhammad Akbar and upon him. He stated that (sic) the accused, fired with .30 bore pistol upon Muhammad Akbar over his chest, Muhammad Akbar tried to catch hold of him so in this struggle the mask of the accused was taken off who was identified as Muhammad Mushtaq son of Muhammad Fazil. Similarly when the other two accused with their .30 bore pistols caused injuries upon the person of Muhammad Arshad, he tried to repel their attack by making a struggle in which the masks of the accused were taken off and they were recognized as Muhammad Ashfaque and Ishtiaq Hussain Shah. Mst. Mehfooz Jan, widow of Muhammad Akbar, Mst. Farzana, wife of Muhammad Arshad, Muhammad Anwar, son of Muhammad Akbar and Mst. Saima, daughter of Muhammad Akbar, are the eye-witnesses of the occurrence who saw with their own eyes the first set of accused persons. The above stated all the witnesses are inmates of the house where the occurrence took place and are natural witnesses. Out of the aforesaid witnesses, Muhammad Arshad is an injured witness who is son of Muhammad Akbar, deceased. He had come to his village from England whereas Mst. Mehfooz Jan, Mst. Farzana, Muhammad Anwar and Mst.
Saima are residents of Panakh. District Kotli. Similarly the accused-respondents, Muhammad Mushtaq, Muhammad Ashfaque, sons of Muhammad Fazil, Muhammad Fazil son of Badar Din and Gulzar Khan, son of Mangoo Khan are also residents of Panakh. The accused-respondent Ishtiaq Hussain Shah, son of Nisar Hussain Shah is resident of Chakmir, District Kotli. So all the accused persons are even previously known to the eye-witnesses.
12. Mst. Mehfooz Jan in her statement under section 161, Cr.P.C. Recorded on the day of occurrence, i,e, on 26-1-2001, has categorically stated that Muhammad Mushtaq son of Muhammad Fazil threatened to kill her husband Muhammad Akbar a few days prior to the occurrence. Muhammad Akbar told the matter to Chairman Karamdad who promised that he would tell Mian Mushtaq not to do so. On the occasion of marriage of their son and daughter, Mian Mushtaq was not invited.
Lamberdar Gulzar Khan asked why you did not invite Muhammad Mushtaq upon which her husband told him that due to some enmity Muhammad Mushtaq has not been invited as he had been extending threats to kill him. After this, Lamberdar Gulzar Khan asked her husband as to when would you go to England. Her husband told that he would soon go but Lamberdar insisted upon asking the exact date. After inquiring the exact date, he went out. Ishtiaq Hussain Shah has been coming to England but on a photo-changed passport he was caught over there and deported back to Pakistan. Ishtiaq Hussain Shah was in a doubt that her husband had made a complaint regarding his passport. On the basis of this enmity, Muhammad Mushtaq and Muhammad Ashfaque, sons of Muhammad Fazil, Ishtiaq Hussain Shah son of Nisar Hussain Shah after making a pre-planning alongwith Muhammad Fazil and Gulzar Khan committed the murder of Muhammad Akbar. On the night of occurrence, at about 2-30 a.m. Three persons entered in their house where her husband was sleeping. The accused knocked the door and her husband opened the door. One accused who had masked his face fired with a pistol which hit her husband on the left side of the chest. Her husband tried to catch hold of the accused so in this struggle the mask was taken off and she in the light of bulb and tube identified accused Muhammad Mushtaq son of Muhammad Fazil. In the meantime her son Muhammad Arshad, daughter-in-law, Farzana, her daughter Saima and her son Muhammad Anwar also reached there. The other accused who was also wearing mask was caught hold by Muhammad Arshad in the compound of the house and in the struggle with him the mask was taken off upon which she identified that he was Muhammad Ashfaque son of Muhammad Fazil. When Muhammad Arshad caught hold of Muhammad Ashfaque, he immediately fired with his .30 bore pistol upon him. The third person who was also wearing mask and was near the wall, Muhammad Arshad also tried to catch hold of him and in a struggle his mask was also taken off and he was identified as Ishtiaq Hussain Shah son of Nisar Hussain Shah, who fired with his pistol upon Muhammad Arshad which hit him on his left hand. Ishtiaq Hussain Shah made a second fire which hit the left thigh of Muhammad Arshad. Muhammad Arshad fell down on account of firing and the accused made good their escape from the place of occurrence.
The accused persons, Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah, with the connivance of Lamberdar Gulzar Khan and Muhammad Fazil with a preplanning have committed murder of her husband and injured seriously her son.
13. The statement of Mst. Farzana, wife of Muhammad Arshad, is exactly the same as has been stated by Mst. Mehfooz Jan. Similarly Mst. Saima, daughter of Muhammad Akbar, deceased, is also an eye-witness who has fully supported the version of the other eye-witnesses. Besides this Muhammad Anwar, the son of Muhammad Akbar, has also supported the version of the prosecution.
14. The statements of the eye-witnesses after recording their evidence have to be examined closely and to be appreciated in minute details at the time of conclusion of the trial. At the stage of bail deep scrutiny of evidence is not permissible nor is the requirement of law. However, at the same time the Court of law is not precluded from tentative perusing the evidence of the eye-witnesses, the recovery witnesses, the medical reports, the other connecting evidence and the plea of defence, if any, and to form a tentative opinion as to whether the accused is prima facie connected with the commission of offence of murder or not. In Muhammad Hanif v. Manzoor and others 1982 SCM R 153 it was held that at the stage of deciding bail the Court needs not enter upon a detailed appreciation and examination of evidence. However, the question cannot be decided in vacuum and Court has to look at the material available. If the answer is in positive in forming a tentative opinion as to whether the accused is prima facie connected with the commission of offence of murder or where the sentence provided is either death or life imprisonment, then the refusal of bail is a rule while grant of bail is an exception. Our aforesaid view finds support from the case-law mentioned below.
' In Ghulam Nabi v. Ahmad Hussain and 2 others 1980 PCr.LJ 446 it was observed that while grant of bail in cases not punishable with death or imprisonment for life appears to be a rule but bail shall be refused as a rule in cases punishable with death or imprisonment for life unless Court finds no grounds to believe the accused having committed such offence.
' Similarly in Haji Rehmatullah and another v. The State 1979 PCr.LJ 36 it was observed that in murder cases normal rule is refusal to grant bail if there appear reasonable grounds for believing that the accused was guilty of charge. To determine if there existed reasonable grounds for believing, attention must be confined to the allegations in the First Information Report, medical report, statements of the witnesses before the police and recoveries, if any. It is not at all permissible to enter into question of evaluating respective pleas of the parties at a premature stage when there is no evidence available on the record.
' In a case reported as Gohar Rehman v. Ali Zaman and another 1982 PCr.LJ 495 it has been laid down that law is settled that in cases of murder the normal rule is refusal to grant bail and on merits bail could be granted only in cases where there are no reasonable grounds for believing that the accused was guilty of charge. To determine if there existed such grounds, attention must be confined to the First Information Report, the statements of witnesses under section 161, Cr.P.C.
Medical evidence and recoveries, if any. The Court needs not evaluate the evidence and launch upon a preliminary trial/inquiry and prejudge the merits of the case at the stage of bail.
15. However, the credibility, scrutiny and truthfulness of the witnesses is to be adjudged by the trial Court and it is not within the domain of the superior Courts while deciding a bail application. The detailed scrutiny of the eye-witnesses should be left to be appreciated by the trial Court at the time of appreciation of evidence after the conclusion of the trial.
16. It is to be appreciated that in every criminal case particularly in murder cases the evidence of eye-witnesses is of vital importance and there' are numerous cases in which the accused were convicted on the solitary statement of one eye-witness provided his statement rings true, but in the instant case the prosecution is in possession of statements of injured witness, Muhammad Arshad, and the other eye-witnesses, namely, Mst. Mehfooz Jan, Mst. Farzana, Muhammad Anwar and Mst.
Saima. In the subsequent investigation the eye-witnesses who were shown by the first Investigating Officer are the same and have been entered as eye-witnesses in the calendar of challan. These eye-witnesses have not resiled from their original statements during the subsequent investigation. This also lends'support to the first version of the prosecution that the eyewitnesses of the occurrence are the same who were shown in the calendar of challan by the first Investigating Officer and they stuck to their first stand and never resiled from their statements and they do not in any way implicate the second set of accused persons.
17. It has been admitted by the learned Advocate-General and the learned Additional Advocate- General that no subsequent statements of eye-witnesses have been recorded by the subsequent Investigating Officer, Muhammad Jamil Khan. So from the subsequent investigation it becomes clear that the first version of the incident appears to be more reasonable and plausible than the subsequent version. The counter-version or the subsequent version in the subsequent challan should be of equal substance or of some truth but mere counter-version or mere subsequent challan having no substance or appearing to be fake and fictitious, on the face of it, cannot be a ground for further inquiry and the release of accused on bail. Our aforesaid view is supported by a case reported as Muhammad Abdullah and 2 others v. The State PLD 1981 AJK 114. In this authority the counter-version was equally supported by the evidence and it was observed by the learned Judge that it should not be lightly ignored but at the same time the fundamental principle is that both the versions are to be placed in a juxta position to arrive at a correct conclusion. We have already observed that second version of the incident in this case seems to be artificial concocted and fake as was observed by the trial Court while cancelling the challan of second version.
18. The trial Court after recording the evidence of eye-witnesses and considering the other supportive evidence collected by the first Investigating Officer has to evaluate and form an opinion whether the first version is more natural, probable and truthful. If the first version seems to be more plausible and rings true, then the Court has to decide the case accordingly. A Court of law is never bound by the ipsi dixit of police nor the findings of police are sacrosanct or immuned from judicial scrutiny. The Court of law after evaluating the relevant material has to form its own opinion as to which set of accused persons is prima facie guilty of alleged offences and if the Court reaches to a certain conclusion, it has to initiate its proceedings against that set of accused persons and not as suggested by the police. At this stage any observation from our side will prejudice either the case of the prosecution or that of the defence, therefore, we are purposely avoiding to discuss the merits of the case in detail.
19. However, our tentative view is that the recovery of blood-stained clay from the place of occurrence, the evidence of eye-witnesses, the recovery of three .30 bore pistols on the pointation of Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah, seizure memo. Of clothes of deceased and injured witness, the medical evidence, the evidence of Arms Expert and the other connecting material are sufficient grounds to prima facie connect the accused- respondents, Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah, with the commission of offence of murder and murderous assault. Since the counter-version put forth by the subsequent Investigating Officer, as observed by the trial Court, appears to be afterthought and not of any substance or truth, therefore, the same cannot be made a ground for allowing bail to Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah. The Shariat Court by allowing them the concession of bail has exercised its discretion in a manner which is fanciful, arbitrary and not supported by the settled principles governing the bail matters. In these circumstances they have been illegally allowed the concession of bail on the basis of subsequent version which, on the face of it, as observed by the trial Court, appears to be fake, concocted and result of an attempt on the part of accused persons to spoil the case of the prosecution and to support the real accused persons.
20. In the light of what has been stated above, by accepting the appeal, we set aside the impugned judgment passed by the Shariat Court on 30-7-2002, whereby accused-respondents, Muhammad Mushtaq, Muhammad Ashfaque and Ishtiaq Hussain Shah, were allowed the concession of bail and uphold the judgment of the trial Court. Non-bailable warrants shall issue against these accused-respondents and they shall be taken into custody forthwith and sent to judicial lock-up. Their bail Bonds and .Personal Bonds shall be cancelled. The appeal to the extent of Muhammad Fazil and Gulzar Khan, accused-respondents Nos.3 and 4, is dismissed as the role attributed to both of them is that of abetment and hatching up a conspiracy which yet remains to be proved after the conclusion of the trial. At this stage their case falls within the purview of further inquiry and they were rightly allowed bail by the trial Court and the Shariat Court. The appeal stands disposed of in the manner indicated above.
21. A copy of this judgment shall also be sent to President of Azad Jammu and Kashmir, the Prime Minster of Azad Government of the State of Jammu and Kashmir and Inspector-General of Police, Azad Jammu and Kashmir, for necessary action against Muhammad Jamil Khan, the then Sub- Inspector Police Station Kotli, who with mala fide intentions submitted a fake and fictitious subsequent challan in order to benefit the accused-respondents.
22. Our aforesaid observations in this judgment are purely for the purpose of bail and they need not be taken either in support of prosecution or in support of defence and the trial Court or the Shariat Court should not be influenced by the said observations. accordingly.