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Criminal Appeals Nos.23 and 25 of 1987, decided on 23rd February, 1988.

(On appeal from the judgment of the Shariat Court dated 1 8 1987, in Criminal Appeal No.8 of 1987).

S.497 Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss. 5 & 15 Murder Bail Furtherinquiry Evidence showing that accused indulged in firing and thus killed a goat which belonged to deceased and as per Ballistic Expert"s report at least three empties were fired from the gun which was allegedly recovered from accused Case of further inquiry, held, was not established Mere fact that firing resorted to by accused only killed a goat belonging to deceased was not, prima facie, sufficient to give concession of bail to the accused in circumstances.

S.497 Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss.5 & 15 Murder Bail Only one shot was reported to have been fired from the gun recovered from accused and his fire did not hit the deceased or her goats Possibility that accused might have indulged in firing merely to scare away the accused persons and one another who had reached the spot as a result of hue and cry raised by deceased could not be excluded Case of "further inquiry" as envisaged under S.497, Cr.P.C., held, was established in circumstances.

Ss.497 & 498 Bail Precedent Each case in bail matters, having its own peculiar circumstances, observations made in one case would not constitute authority for another case having different circumstances. [Precedent].

Ss.497 & 498 Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss.5 & 15 Bail Accused attributed only the act of instigation and no other act Discretion exercised in favour of accused by Shariat Court being not capricious or perverse was not interfered with by the Supreme Court.

Appellant in person (in Criminal Appeal No. 23 of 1987).

Kh. Muhammad Saeed for Respondent (in Criminal Appeal No.23 of 1987).

Kh. Muhammad Saeed for Appellants (in Criminal Appeal No.25 of 1987).

Mirza Muhammad Nisar Addl. Advocate General for Respondent (in Criminal Appeal No.25 of 1987).

. As the above entitled appeals arise out of a single incident, we propose to dispose of the same by this single order.

2. The brief facts of the case are that according to the F .I. R. lodged at Police Station Sehnsa on 9 1 1987, at 11 30 a.m., that there was a dispute regarding the possession of land comprising survey No.273, measuring 15 kanals 14 marlas. The land in dispute is "khalsa" land, a part of which is alleged to be in use of the complainant party as graveyard. According to the complainant, Muhammad Shabbir, a hedge was also raised around the graveyard. On 9 1 198"7, at about 10 00 a.m. Fazal Dad and others accused persons, seven in number, came to the place of occurrence and started demolishing the hedge around the disputed piece of land. Mst. Fatima Begum, deceased, who was tending her goats nearby asked the accused persons not to undo the hedge on which Fazal Dad, accused/ respondent, instigated the other accused, who started firing at Mst. Fatima Begum; Abdul Qadoos, accused, fired at Mst. Fatima Begum, who was injured and subsequently succumbed to the injuries while a goat belonging to Mst. Fatima Begum was also killed at the spot as a result of firing by Muhammad Mushtaq, appellant. Out of the seven accused, Abdul Qadoos, Muhammad Mushtaq and Muhammad Majid are alleged to have been armed with .12 bore guns, while the others were armed with sticks and a rambi. The accused persons other than Abdul Qadoos, Fazal Dace: Muhammad Mushtaq and Muhammad Majid were released on bail by the trial Court, whereas the prayer for bail made by the aforesaid four accused was turned down by the Shariat Court. Fazal Dad, Muhammad Mushtaq and Muhammad Majid preferred an appeal before the Shariat Court which allowed bail to Fazal Dad and refused bail to Muhammad Mushtaq and Muhammad Majid, appellants. Muhammad Shabbir has challenged the order of the Shariat Court so far as it pertained to the bail granted to Fazal Dad, whereas Muhammad Mushtaq and Muhammad Majid preferred appeal against the order of the Shariat Court whereby they were refused bail.

3. We have heard the arguments advanced by the learned counsel for the parties i.e., Kh. Muhammad Saeed, Advocate, and Mirza Muhammad Nisar, Additional Advocate General. Mr. Mumtaz Hussain Rathore, Advocate, subsequently submitted written arguments in appeal filed for the cancellation of bail allowed to Fazal Dad.

4. Kh. Muhammad Saeed, Advocate, has argued that the case against the appellants as well as Fazal Dad, respondent, falls within the purview of "further inquiry" and the Shariat Court should have also allowed the concession of bail to Muhammad Mushtaq and Muhammad placed, appellants. He has argued that the entries of "khasra girdawari" pertaining to year 1984 A. D. show that Fazal Dad, accused respondent, is in possession of the land measuring 3 kanals out of total area of land comprising survey No.273, which measures 15 kanals 14 marlas. The learned counsel has maintained that the prosecution has not placed on record the copy of the "khasra girdawari" pertaining to year 1986, and thus, the presumption is that the entries regarding the possession of the land in the year 1986, also go against the prosecution. The learned counsel has contended that the possession of the complainant party has not been recorded on any part of the land comprising survey No.273, which is indicative of the fact that the same was in possession of Fazal Dad, and the complainant party intended to forcibly dispossess them. The learned counsel has also referred to F.I.R., a copy of which has been placed on the record by the prosecution. The said F.I.R. was lodged by Fazal Dad on 4 1 1987, five days before the present occurrence took place, against Munshi and others alleging that they had trespassed into the disputed land and thus, a case was registered against them under sections 147/149, 447/427 A.P.C. The learned counsel has also submitted that Muhammad Mushtaq and Muhammad Majid are not ascribed any injury to Mgt. Fatima Begum, deceased, and as such the charge of constructive liability against them needs "further inquiry". Therefore, they should be granted the concession of bail. The leaned counsel has also cited some authorities in support of his contention.

5. In Muhammad Razzaq and others v. The State 1982 P Cr. L J 1105, bail was allowed in a murder case where "the principal accused had been found innocent and the co accused, whose bail matter was in question, was not attributed the fatal injury to the deceased.

6. In Muhammad Bashir and another v. The State P L D 1983 SE (AJK) 8, bail was allowed to the accused person other than the principal accused on the ground that there was no explanation as to how the accused party Also sustained injuries during the incident and that in view of the revenue record the question of possession also needed "further inquiry".

7. In Khan Bahadur and another v. The State 1982 P Cr. L J 26, the accused persons were released on bail in a case under section 307, P. C. on the ground that the case is one of "further inquiry" because the injury caused was simple in nature is the accused had been in the custody for ten months.

8. In Muhammad Nawaz etc. v. The State 1981 P Cr. L J 1232, the bail was allowed to the accused persons, who were attributed injury to the eye witnesses and no injury was alleged to have been caused to the deceased by the accused.

9. In reply it was contended by Mr. Muhammad Nisar Mirza. Additional Advocate General that the case of the prosecution is that the disputed piece of land was in the use of the complainant party as graveyard. He has contended that the site plan shows that at least two old graves existed on the disputed piece of land; this fact corroborates the prosecution story that in fact the particular portion of the land which was the bone of contention between the parries was in possession of the complainant party and not of the accused persons. He has argued that the counter report, which was made by Fazal Dad previous to the occurrence, records that dispute pertained to the land comprising khasra No.373, whereas in the present case the dispute relates to the land comprising survey No. 273. He has also argued that assuming for the sake of arguments that the F.I.R. lodged by Fazal Dad prior to the present incident pertained to the land in question, it cannot be interpreted to mean that the land was in possession of Fazal Dad; he might have lodged previous F.I.R. so as to create a defence in his favour because he was intending to forcibly dispossess the complainant party from the disputed piece of land. The learned Additional Advocate General has further argued that as many as 10 empties were seized by the police from the place of occurrence, out of which at least 3 empties, according to the Ballistic Expert, were fired from the gun recovered from Muhammad Mushtaq, accused, whereas one was fired by Muhammad Majid, accused. This shows that they have played active part in the commission of the offence.

10. We have given our due consideration to the arguments advanced at the Bar. It is not desirable to comment with regard to the factum of possession at this stage or to make a deep scrutiny of the evidence. So far as Muhammad Mushtaq, appellant, is concerned there is, prima facie, evidence that he indulged in firing and thus, killed a goat which belonged to Mst. Fatima Begum, deceased. According to the Ballistic Expert"s report at least 3 empties were fired from the gun which was allegedly recovered from Muhammad Mushtaq, Appellant. Therefore, we are not convinced by the argument of the learned counsel for the appellant that the case of Muhammad Mushtaq falls within the ambit of "further inquiry" because, prima facie, there is no evidence that he shared common intention with the principal accused. The case against Majid, accused, is distinguishable because only one empty is reported to have been fired from the gun recovered from Muhammad Majid, accused. It is also not the prosecution case that his fire hit either the deceased or any of the goats belonging to the deceased. Therefore, at this stage, the possibility cannot be excluded that he might have indulged in firing merely to scare away the complaint and one another, who had reached the spot as a result of hue and cry raised by Mst. Fatima Begum. In the aforesaid circumstances his case is one of "further inquiry" as envisaged under section 497, Cr. P. C. So far as the authorities cited by the learned counsel for the appellant, Muhammad Mushtaq, are concerned suffice it to say that in criminal cases, especially in bail matters, each case has got its own peculiar circumstances and the observations made in one case do not constitute authority for another case having different circumstances. The mere fact that the firing resorted to by Muhammad Mushtaq only killed the goat belonging to Mst. Fatima Begum, and did not cause injury to the deceased is not, prima facie, sufficient at this stage to give concession of bail to Muhammad Mushtaq, appellant, on the ground that his case also falls within the ambit of "further inquiry".

11. So far as the cancellation of bail of Fazal Dad, respondent, is concerned we have perused the written arguments submitted by Raja Mumtaz Hussain, Rathore, Advocate. He is attributed only the act of "instigation" and no other overt act is attributed to him. Thus, discretion exercised in his favour by the Shariat Court cannot be regarded as capricious or perverse. Therefore, we see no reason to interfere in the discretion exercised by the Shariat Court in his favour.

In the light of what has been stated above we dismiss the appeal entitled Muhammad Shabbir v. Fazal Dad, while partly accept the appeal entitled Muhammad Mushtaq and Majid v. State and order that if Muhammad Majid, appellant, furnishes a surety bond in the sum of Rs.2 00,000 (two lac) with a personal bond in the like amount to the satisfaction of any Magistrate 1st Class of Kotli, he shall be released from the judicial lock up. So far as Muhammad Mushtaq, appellant, is concerned his appeal stands dismissed.

M.B.A./215/S.C.A Order accordingly.

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