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Criminal Miscellaneous Revision No. 1 of 1984, decided on 16th July, 1984.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 307/34‑‑Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss.15 & 25‑‑Bail application rejected by District Criminal Court‑‑Appeal or revision against such order, under S. 25, Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974, held, competent.

‑‑‑S. 497‑‑Penal Code (XLV of 1860). S.307/34‑‑Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974). Ss.15 a 25 Due weight to be given to discretion exercised by trial Court Discretion exercised arbitrarily or in a fanciful manner, held, required interference.

------Ss. 439 a 497‑‑Penal Code (XLV of 1860), 5.307/34‑‑Azao Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S. 15‑ Case against accused not a case in which maximum penalty was death or life imprisonment‑‑Bail allowed to accused in circumstances.

1981 P Cr. L J 723; 1981 P Cr. L J 685; P L D 1983 Azad J&K 47 (49); Muhammad Ashraf Khan and others v. The State P L D 1978 Azad J a K 8 and Ch. Muhammad Latif v. The State P L D 1978 S C (A J a K) 83 ref.

Raja Shabir Ahmad Tabassum for Petitioner.

M. Nisar Mirza, Addl. A.‑G. for the State.

This is revision petition filed by Muhammad Taj through counsel, Raja Shabir Ahmad Tabassum, whim is directed against the judgment of the learned District Court of Criminal Jurisdiction, Kotli whereby application of Muhammad Taj petitioner has been rejected by the Court.

2. The revision arises out of the following facts:‑‑

(i) A case was registered under section 307/34, A.P.C. read with section 15 Islamic Penal Laws Act against Taj Muhammad petitioner son of Saghir Khan, resident of Village Maira Pothi and 3 others. The police has not put up a complete challan as yet despite the fact that more than 15 days have elapsed since the date of case was registered against the petitioner and the others.

(ii) All the 4 petitioners (accused) moved an application for bail before the learned District Court of Criminal Jurisdiction on 8‑7‑1984. They alleged in their application that they had been under custody of the police since 30‑6‑1984, and recoveries have been made now nothing is to be recovered from them. They also alleged that the Tehsil Court of Criminal Jurisdiction is not complete in Nakyal as one learned Members of the Courts i.e. the learned Qazi, is on leave; hence this application was moved before the District Court of Criminal Jurisdiction, Kotli.

(iii) After hearing the learned P.P. and the learned counsel for the petitioners, the learned members of the District Court rejected the application for bail as regards to the petitioner, vide their judgment pronounced on 12‑7‑1984. The reason given by the learned Members of the District Court of Criminal Jurisdiction was that Muhammad Taj petitioner inflicted an injury on the head of Muhammad Khalid with a knife and has also injured Muhammad Fazal, the brother of the complainant. As the injuries were inflicted with a sharp weapon (knife), therefore, the bail was refused to Muhammad Taj while the other three petitioners were allowed bail by the District Court of Criminal Jurisdiction.

3. Aggrieved by the judgment of the learned District Court of Criminal Jurisdiction, the petitioner has moved this revision petition to set aside the order of the lower Court and allowed him bail under law.

4. A question arose in this Court, whether an appeal or a revision lies against the order of the learned District Court of Criminal Jurisdiction and after perusal of the relevant law, I find that under section 25 of the Islamic Penal Laws Act, the appeal or a revision is competent before this Court.

5. The learned counsel for the petitioner has impeached the judgment of the lower Court and has raised the following points:‑

(a) That according to the two Medical Reports, the injuries on the persons of the two injured persons, are simple therefore, the bail may be allowed to his client, Muhammad Taj, the petitioner;

(b) That it is not a case in which the maximum sentence is death or transportation of life/life imprisonment. He has submitted that the general trend of law in Azad Jammu and Kashmir is that the accused who are not involved in a case punishable with death or life imprisonment should be enlarged on bail as a rule;

(c) That the discretion exercised by the Court below, is arbitrary, fanciful and capricious. The learned District Court of Criminal Jurisdiction should have enlarged this accused also on bail;

(d) That the Tehsil Court of Criminal Jurisdiction of Nakyal is not complete and it is not known as to when the learned Tehsil Qazi will come back to attend his Court in Nakyal and as such his client should not be deprived of his liberty of person which is a very valuable right; and

(e) That the bail cannot be withheld as a punishment.

5. The learned counsel for the petitioner has cited:‑ --

(1) 1981 P Cr. L J 723.

(2) 1981 P Cr. L J 685 S.C.

(3) P L D 1983 Azad J & K 47 (49).

6. The learned Additional Advocate‑General, appearing on behalf of the State, placed the police d1aries at my disposal and conceded that the injuries caused by the petitioner to the .2 injured persons were simple. However, he contended that it is a case of Qasas under section 15 of Islamic Penal Laws Act and as such the District Court of Criminal Jurisdiction was justified in refusing bail to the petitioner.

7. I have given my anxious thought to the arguments addressed at the Bar. I have gone through the police diaries and the file of the learned District Court of Criminal Jurisdiction, Kotli.

8. It is a settled principle of law that the discretion exercised by the trial Court is always given due weight but if that discretion is 18 exercised arbitrarily or in a fanciful manner, the superior Courts are duty bond to interfere. In this case, all the injuries attributed to the petitioner are simple and it is not a case in which the maximum penalty is death or life imprisonment, therefore, it appears to be proper to enlarge the petitioner on bail.

9. I have studied the authorities cited by the learned counsel for the petitioner which are very much relevant in‑this case.

10. In Sultan Muhammad and others v. The State 1981 P Cr. L J 985, the principles governing grant or refusal of bail in criminal matters are mentioned at pages 688 and 689. I reproduce the following portion from judgment delivered by Raja Muhammad Khurshid Khan, Acting Chief Justice of our Supreme Court:‑

10. Considerations in granting bail, of course in offences punishable with death or transportation for life are very much different from the considerations on which bail can be granted in other offences. In the former case it is necessary to look into the evidence to see as to whether a prima facie case exists for believing that a person is guilty of these offences. When the High Court grants or withholds bail in a case involving sentence of death or imprisonment for life, the order should give some intelligible indication that the matter was objectively looked into otherwise this Court will not be in a position to satisfy itself whether the order of the High Court is sound to be upheld or not.

11. Subsection (2) of section 497, Cr.P.C. makes it obligatory for the Courts to allow bail to an accused person in all kinds of non‑bailable offences including those punishable with death or transportation for life, where no reasonable grounds exist for believing that the accused has committed an offence and a further inquiry is warranted. Of course such an order is interlocutory in nature pending inquiry.

12. It is settled law that an accused is presumed to be innocent till the contrary is proved, therefore, the ultimate conviction and incarceration of a guilty person can redress the wrong caused by a mistaken relief of interim bail granted to him but no satisfactory reparation can be afforded to an innocent man for his unjustified incarceration at any stage of the case if he is acquitted in the long run."

11. In Muhammad Yaqub and others v. The State 1981 P Cr. L J 723 it was observed at page (725) A:‑‑

"In Azad Jammu and Kashmir, the latest trend of the Court is to allow bail even in non‑bailable cases except murder and in case of public policy. In Sardar Muhammad Ashraf Khan and others v The State P L D 1978 Azad J & K 8 Mr. Justice Kh. Muhammad Yusuf Saraf, C.J. (as he then was), traced history of case‑law in bail matters and concluded as under:‑‑

"Grant of bail in all cases except murder is a rule and refusal has been exception unless of course, the case is one of the public policy."

In Ch. Muhammad Latif v. The State P L D 1978 S C (AJ&K) 83 it was held as under:

"It is elementary that grant of bail specially in offences where the penalty is not death or transportation for life, is a rule and refusal an exception and the mere amount involved is not by itself sufficient to refuse bail."

12. In the case of Sardar Akhlaq Ayub Khan v. The State P L D 1983 Azad J & K 47, my learned brother, Mr. Justice Sardar Muhammad Ashraf Khan, observed at page 49:‑

"After giving my due consideration to the arguments addressed at the bar and the facts and circumstances of the case, I am of it case where bail should be disallowed the opinion that it is not a to the petitioner. The learned counsel for the State has also admitted that the case of the petitioner does not fall within the prohibitive clause of section 497, Cr.P.C. which places a bar on the grant of bail of a person accused of an offence punishable with death and transporation for life. This being the case grant of bail becomes discretionary with the competent Court and from the pronouncements of the superior judiciary of Pakistan as well as Azad Kashmir the policy of the law appears to be that such a discretion should be exercised in favour of the accused person. The grant of bail in cases where punishment is not death or transporation for life should be a rule and refusal thereof should be an exception to that rule. The above rule is based on a presumption that an accused is innocent till his guilt' is proved and as a presumably innocent person, he is entitled to every freedom and every opportunity to look his own case."

13. Under these circumstances, I accept this revision petition and allow bail to the petitioner Muhammad Taj or Taj Muhammad son of Muhammad Saghir, resident of Maira Pothi, Tehsil Nakyal who is involved in a case under section 307/34 read with section 15 Islamic Penal Laws Act. He shall be released on bail if he furnishes bail bond in the sum of Rs.5,000 (five thousand only) with a personal bond in the like amount of the satisfaction of any Magistrate Ist Class at Kotli (if he is not wanted in any other case).

14. I have been very much impressed by the learned. Advocate Raja Shabbir Ahmed Tabassum, for his brief and sweet arguments. I think that if this budding lawyer works hard and brings up‑to‑date law before the learned Judges (before whom he appears), he will prove to be a very good Advocate

S.G.D. Bail granted.

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