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Criminal Appeals Nos.20 and 26 of 1987, decided on 27th February, 1988.

(On appeal from the judgment of the Shariat Court dated 16 3 1987, in Criminal Appeal No.42 of 1986 and judgment of the Shariat Court dated 14 9-1987 in Criminal Appeal No. 1 of 1987).

Ss.497 & 498 Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss.5 & 15 Penal Code, (XLV of 1860), S.307/34 Murder BailFurther inquiry InferenceDifference between contents of F.I.R. and Roznamcha Waqiati, if any, does not justify the inference at bail stage that the F.I.R. in the case was substituted for falsely implicating the accused Vote seizing of blood at the place of occurrence or the fact that the bullet recovered from the body of the deceased was not sent to the Ballistic expert is not sufficient for drawing inference at bail stage that the case against accused comes within the purview of further inquiry as envisaged under S.497, Cr.P.C. especially in view of the facts that there were four witnesses which supported prosecution case and testimony of such witnesses, prima facie, connected the accused with the commission of offence and deep scrutiny of same was not desirable at bail stage.

Ss.497 & 498 Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss.5 & 15 Penal Code (XLV of 1860), S.307/34 Bail, grant or refusal of Discretion of Court Where discretion exercised by Shariat Court in releasing accused on bail was neither perverse nor patently capricious, Supreme Court declined interference with the discretion exercised by the Shariat Court in favour of accused.

Abdul Khaliq Ansari for Appellants. (in Criminal Appeal No.20 of 1987).

S.M. Zaffar assisted by M.S. Tariq for Respondents (in Criminal Appeal No.20 of 1987).

S. M. Zaffar assisted by Basharat Ahmed Sheikh for Appellant (in Criminal Appeal No.26 of 1987).

Mirza Muhammad Nisar Addl. Advocate General for Respondent (in Criminal Appeal No.26 of 1987).

The above entitled appeals have been directed against the judgment of the Shariat Court dated 16 3 1987, whereby Abdul Aziz and Javid Hussain, respondents, were allowed bail; and the judgment dated 14 9 1987. whereby the appeal filed by Liaqat Ali, appellant herein, seeking bail was dismissed.

2. As the above entitled two appeals have arisen out of a single incident, we propose to dispose of the same together.

3. The brief facts giving rise to the present appeals are that, according to the prosecution, on 22 7 1986, at about 11 30 p.m., when Muhammad Shafique, complainant, Muzaffar Ali and Abdul Rehman were sitting with Abdul Shakoor, deceased, at the Octroi Post, Chitterpari, Mirpur, a Suzuki Van bearing No.ID 1995 arrived at the Post from Mangla side; Toyota Corolla Car No. AJK A 260, which was driven by Abdul Aziz, respondent, followed the Van in, which Liaqat Ali, appellant, and Javid Hussain, respondent, were sitting. The aforesaid occupants of Car directed the driver of the Suzuki Van to drive away the van, who in compliance of their direction speedily rushed towards Mirpur Town and Liaqat and others followed the van without paying the octroi. Abdul Shakoor, deceased, suspected that the Suzuki Van was either carrying some prohibited goods or the accused persons were otherwise avoiding the payment of the octroi. Consequently, Abdul Shakoor, Contractor, to whom the aforesaid Octroi Post has been leased out, pursued the aforesaid two vehicles bar boarding his Car No.1HE 3213, in which Shafique, complainant, Jhazanfar Ali, Abdul Rehman and Muzaffar Ali, P.Ws., were sitting. At 11 45 p.m., when the pursuers arrived at Allama Iqbal Road, in front of the Para Medical College, their car was stopped by Abdul Aziz, accused, by blocking the road by halting their car in the middle of the road. When both the cars came to halt, the accused persons came out of their car and directed the driver of the Suzuki Van to drive away his vehicle and consequently he speedily drove away the van. Thereafter, Liaqat Ali, appellant, took out his revolver and fired at Ghazanfar Ali, P.W., which hit his right elbow; he fired a second shot which missed the complainant and hit the door of the Car. Javid Hussain, respondent, also fired at Muhammad Shafique, complainant, but the shot missed its target; Abdul Aziz, respondent, attempted to give a "Danda" blow on the head of the complainant, but as the complainant made an effort to avert the blow with his hand, his "right hand was injured. When the complainant party was running away for safety, Liaqat Ali, appellant, fired with his revolver at Abdul Shakoor, which hit the back side of his chest and he succumbed to the said injury. The Police, after investigation, filed challan against the accused persons under sections 5, 15 of the Islamic Penal Laws Act, and 307, A.P.C. read with section 34, A.P.C. All the accused sought bail from the District Criminal Court, but they were refused the same. Two separate appeals, one by Liaqat Ali and the other by Javid Hussain and Abdul Aziz, were filed in the Shariat Court. The Shariat Court allowed bail to Javid Hussain and Abdul Aziz holding that their case falls within the purview of "further inquiry", whereas the appeal filed by Liaqat Ali was dismissed.

4. We have heard the arguments and gone through the record. Mr. S.M. Zaffar, the learned counsel for the appellant, Liaqat Ali, has argued that the Courts below have not properly exercised the discretion while refusing bail to Liaqat Ali, appellant. He has argued that there are sufficient circumstances on the record which bring the case of the said appellant within the purview of "further inquiry" and thus entitle him to the concession of bail. He has raised the following points in support of his contention:

(i) That the entries made in the "Rozenamcha Waqiati" are at variance with the entries of the F.I.R. He has contended that no specific role has been attributed to Liaqat Ali, accused, in "Rozenamcha Waqiati" whereas firing has been attributed to him in the F.I.R. by which he is alleged to have caused the death of Abdul Shakoor. The learned counsel has argued that out of the 4 forms on which the F.I.R. of the incident has been recorded, one of the copies has No.16 printed on it, whereas the other form bears No.15. Thus, the learned counsel has maintained that the F.I.R. was subsequently changed. Had the F.I.R. been not replaced, all the four copies of the F.I.R. would have had the same serial number. The learned counsel has contended that the difference between the contents of "Rozenamcha Waqiati" and F.I.R. makes the case against Liaqat Ali, appellant, doubtful;

(ii) that the bullet taken out of the body of Abdul Shakoor at the time of post mortem has not been sent to the Ballistic Expert; only the empties were sent. This makes the case against Liaqat Ali further doubtful;

(iii) that no blood was found at the place of occurrence nor any blood stained earth was seized; this makes the identity of the place of occurrence and manner in which incident took place dubious;

(iv) that according to the prosecution case the Suzuki Van which was suspected to carry the prohibited goods or the goods which were subjected to octroi had escaped and there was no reason for the accused to attack their pursuers. Thus, the possibility that the accused persons acted in self defence or it was a case of "sudden fight" cannot be excluded. He has further submitted that complainant party had no justification either to chase the accused party or arrest any of them; and

(v) that the prosecution witnesses are partisan and their testimony is not above board.

5. In reply Mr. Muhammad Abdul Khaliq Ansari, the learned counsel for the complainant, has contended that the difference in number printed on the forms used for recording the F.I.R. is due to the misprinting. He has argued that in fact the F.I.R. was recorded on form No.15 and the serial No.16 on one of the forms was misprinted. The learned counsel has maintained that the F.I.R. written on form which originally bears No.16 pertains to some other case. Replying the point regarding the alleged variance between the F.I.R. and "Rozenamcha Waqiati", the learned counsel has maintained that only a brief account of F.I.R. was to be recorded in the "Rozenamcha Waqiati", and it was not necessary to mention all the contents of the F.I.R. in the "Rozenamcha". There is no material difference between the contents of the F.I.R. and the "Rozenamcha". He has further argued that mere fact that the bullet recovered from the body of Abdul Shakoor, deceased, was not sent to the Ballistic Expert does not make the case of the prosecution doubtful, specially so when there is ocular evidence in support of the prosecution case. Similarly, the absence of the blood stained earth at the place of occurrence might be due to the fact that mostly the haemorrhage from the wound of the deceased was internal and any small quantity of blood coming out of the wound might have been absorbed in the" garments which the deceased was wearing. So far as the question of self defence or sudden fight is concerned, the learned counsel has contended, there are no circumstances on the record at present to justify any such plea. He has argued that the eye witnesses cannot be regarded as partisan because they had no motive to falsely implicate the accused persons. The learned counsel has further maintained that no plea of self defence or sudden fight has been taken by the appellant in his examination under section 242, Cr.P.C. or by way of making any suggestion in cross examination to eye witnesses whose statements have been recorded. The learned counsel has further maintained that at the bail stage the prosecution evidence, whether circumstantial or ocular, cannot be subjected to the close scrutiny.

6. We have given our due consideration to the arguments raised at the Bar and we are of the opinion that there is no reason to differ from the view of the Shariat Court that, prima facie, difference in serial numbers of the forms on which the F.I.R. was recorded might be due to the misprinting. We also sent for the relevant Register containing "forms" on which the first information reports are recorded and have found some other printing mistakes regarding the serial numbers; out of the four forms which normally should bear identical serial number, some of the same were bearing different serial numbers as a result of misprinting. Difference between the contents of the F.I.R. and "Rozenamcha Waqiati", if any, does not justify the inference, at this stage that the F.I.R. in the case was substituted for falsely implicating the accused persons. Similarly, the absence of the seizure of blood at the place of occurrence or the fact that the bullet recovered from the body of the deceased was not sent to the Ballistic Expert is not sufficient for drawing an inference at this stage that the case against Liaqat Ali comes within the purview of "further inquiry" as envisaged under section 497, Cr. P.C especially in view of the fact that there are four eye witnesses which support the prosecution case.

The testimony of the eye witnesses, prima facie, connects the appellant Liaqat Ali with the commission of the offence of murder and a deep scrutiny of the same is not desirable at this stage. It is only after the completion of the trial that a proper assessment regarding their testimony is possible. We are also not impressed by the argument advanced by the learned counsel for the appellant, Liaqat Ali, that as the Suzuki Van had escaped from the place of occurrence, the accused persons might have acted in self defence, especially so when at this stage there is nothing on the record to justify such a contention.

7. Mr. Abdul Khaliq Ansari, Advocate, assailed the order of the Shariat Court, whereby Javid Hussain and Abdul Aziz were allowed bail. He has contended that the said respondents acted in furtherance of common intention to take away the life of any of the pursuers, if it became necessary to prevent them from having access to the Suzuki Van. The learned counsel has contended that Suzuki Van was not only carrying goods on which the octroi was to be paid but probably the same was also carrying some contraband goods; and it was for that reason that the accused persons had resolved even to take the life of any of the pursuers if it became necessary to prevent him from having access to the said vehicle. He has further maintained that the facts that Javid Hussain also resorted to firing with his revolver and Abdul Aziz gave a "lathi" blow to the deceased support the prosecution"s allegation that they are constructively liable for the murder of Abdul Shakoor.

8. The learned counsel for the respondents, Mr. S.M. Zaffar, has contended that in view of the circumstances which he has brought to the notice of the Court while arguing the appeal of Liaqat Ali, accused, and coupled with the fact that Javid Hussain and Abdul Aziz were not directly responsible for the death of Abdul Shakoor, it cannot be said that the discretion exercised by the Shariat Court in releasing them on bail is capricious or perverse. The learned counsel has argued that the Supreme Court ordinarily does not interfere with the discretion, exercised by the subordinate Court in bail matters until and unless it is shown that the same was exercised perversely or in violation of the settled principles, of law on the subject.

9. After giving our due consideration to the arguments advanced by the learned counsel with regard to the cancellation of bail of Javid Hussain and Abdul Aziz, we are of the view that in the circumstances of the case it cannot be said that discretion exercised by the Shariat Court, in releasing them on bail, is either perverse or patently capricious. Thus, we are not persuaded to interfere with the discretion exercised by the Shariat Court in their favour.

10. Before parting with the case it may be observed that the question as to whether the Shariat Court has been validly established through successive Ordinances without placing the same before the Legislative Assembly need not be decided in the instant appeals because the slime is directly involved in another appeal and would be decided therein. The present appeals can be conveniently disposed of without deciding the said question.

The upshot of the above discussion is that both the above titled appeals fail and, are hereby dismissed.

M.B.A./214/S.C.A. Appeals dismissed.

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