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Criminal Appeals Nos.26, 27 and 28 of 1987, decided on 17th February, 1988.

(On appeal from the order and judgment of the Shariat Court dated 26 8 1987 and 27 9 1987 in Criminal Appeals Nos.19 and 49 of 1987).

S.497 Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.5 Penal Code (XLV of 1860), S.307/34 Bail Nature and scope of scrutiny of evidence at bail stage Making a deep scrutiny of prosecution evidence or expressing any opinion on vital aspects at bail stage is not desirable. [Evidence].

S.497 Bail At bail stage if on tentative assessment of evidence whether ocular or circumstantial, Court care to the conclusion that there were reasonable grounds for believing that accused person was guilty of an offence punishable with death or life imprisonment, accused should be refused concession of bail When Court came to conclusion that further probe into guilt of accused person was necessary to make out a prima facie case against him, he could be released on bail.

S.497 Bail Further inquiry Whether case of a particular accused person falls within ambit of further inquiry depends upon peculiar circumstances of each case.

S.497(5) Bail, cancellation of High Court will not ordinarily interfere with discretion exercised in bail matter by Court below, until and unless same was capricious, perverse or violative of settled principles of law on the subject.

S.497 Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.5 Penal Code (XLV of 1860), S.307/34 Bail Perusal of first information report, testimony of eye witnesses and post mortem report showing that case against accused did not fall within ambit of further inquiry as stipulated under S.497, Criminal Procedure Code and on tentative assessment of evidence accused prima facie was connected with offence of murder Bail refused.

S.497 Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.5 Penal Code (XLV of 1860), S.307/34 Bail, grant of Co accused Only one stick blow on head of deceased attributed to co accused and in absence of statement of doctor it could not be said whether stick blow by co accused contributed to fracture of skull of deceased Discretion exercised by Court below in granting bail to co accused, neither perverse, nor capricious or violative of "settled law on the subject Order of Court below, granting bail to co accused, upheld in circumstances.

Appellant in person.

Muhammad Ibrahim Khan and Muhammad Saeed, Advocates for Respondent No.1.

Mirza Muhammad Nisar, Additional Advocate General for Respondent No.2.

Malik Rabnawaz Noon, Advocate for Appellant.

Muhammad Ibrahim Khan and Muhammad Saeed, Advocates for Respondent No.1.

Mirza Muhammad Nisar, Additional Advocate General for Respondent No.2.

Muhammad Ibrahim Khan and Muhammad Sated, Advocates for Appellant.

Mirza Muhammad Nisar, Additional Advocate General for the State.

As the above titled three appeals arise out of a single incident, we propose to dispose of the same together.

These appeals have been directed against the judgments of the Shariat Court dated 26 8 1987 and 27 9 1987, whereby Muhammad Yusuf, appellant, was refused bail, whereas Sher Alam was released On bail and prayer for the cancellation of the bail allowed to Shakoor Alam was declined.

The brief facts of the case are that the parties .are refugees and there has been litigation between them regarding the possession of land comprising survey Nos.728/656/387 situated in village Dothan, District Poonch. The accused party after obtaining a decision in their favour from the High Court approached the Rehabilitation Authority (A.R.C.) for the ejectment of Baqa Muhammad and others, The A. R. C. issued a notice to the persons concerned as to why they should not be ejected from the land in dispute, but they failed to appear before him. Consequently a warrant ordering the ejectment of the unauthorised occupants was issued on 5 5 1987. On 7 5 1987 the concerned "Girdawar" alongwith two Constables; namely, Liaqat Ali and Sadiq, arrived at the disputed piece of land for the execution of warrant issued by the A.R.C. Baqa Muhammad, who resided at a small distance from the land in dispute, was already present in the land and was sowing maize seed therein. On the arrival of Muhammad Yusuf and others, Baqa Muhammad told them not to disturb the status quo because Akbar alias Akoo had gone to secure a stay regarding the ejectment. Meanwhile a quarrel ensued between the parties and, according to the prosecution case, Muhammad Yusuf, appellant, gave a severe blow on the head of the deceased, Baqa Muhammad, with the blunt side of a "Ranbi", while Sher Alam inflicted a stick blow to Baqa Muhammad on the left side of his head. As a result of the aforesaid blows the victim of the assault fell down on the ground and Sher Alam and Shakoor Alam, accused, gave further stick blows on the other part of his body. The women folk belonging to the complainant party reached the spot so as to prevent the accused persons from giving further beating to Baqa Muhammad and they were also given beating by the accused persons.

The police after investigation challaned the accused under section 5 of the Islamic Penal Laws Act and section 307, A. P. C. read with section 34, A.P.C. All the three accused sought their bail from the District Criminal Court; Shakoor Alam, respondent, was granted bail by the District Criminal Court, while Muhammad Yusuf and Sher Alam were refused the same. An appeal by Muhammad Yusuf and Sher Alam to the Shariat Court partly succeeded and Sher Alam, respondent, was also granted bail while Muhammad Yusuf was refused the same. The above entitled appeals have been directed against the aforesaid order of the Shariaf Court. Muhammad Yusuf seeks bail, whereas in the other two appeals the Orders of grant of bail to Sher Alam and Shakoor Alam is the subject of challenge.

We have heard the arguments and gone through the record. It has been contended by Sardar Muhammad Ibrahim Khan, Advocate, appearing on behalf of Muhammad Yusuf, that Muhammad Yusuf, appellant, is entitled to bail because his case falls within the ambit of further inquiry. The learned counsel has maintained that there are contradictions between the contents of the F.I.R. Post mortem report and the statements of the prosecution witnesses recorded under section 161, Cr.P.C. and thus, the case against the appellant is doubtful. He has argued that in the F .I. R. there is no allegation that Sher Alam inflicted any injury with stick on the head of Baqa Muhammad, deceased, but after the post mortem report witnesses improved upon the version given in the F.I.R. and attributed a stick blow to Sher Alam, accused, The learned counsel has submitted that the overall circumstances of the case indicate that there was a sudden fight between the parties and it was not a case of premeditation; as such it cannot be said at this stage that there are reasonable grounds to believe that the accused are guilty of an offence punishable with death or the transportation of life. The learned counsel has stressed that the accused had a legal warrant for the ejectment of Baqa Muhammad and others and the complainant party had no justification to offer resistance to the execution of the same. The learned counsel has also contended that the fact that only one injury each has been attributed to Muhammad Yusuf and Sher Alam on the head of Baqa Muhammad, deceased, lends support to the inference that they had no intention to kill Baqa Muhammad or any other member of rival faction. On the aforesaid premises the learned counsel has submitted that the cases of the accused, Muhammad Yusuf, as well as Sher Alam, respondent, fall within the purview of "further inquiry" and thus, Muhammad Yusuf appellant, should also be granted bail, whereas the bail granted to Sher Alam should be kept intact. The learned counsel has cited following authorities in support of his contentions:

In the case reported as The State v. Matloob Hussain Shah 1983 P Cr. L J 745, it was held that where the case requires "further inquiry" into the guilt of the accused, the accused should be granted the concession of bail.

In Hiddu alias Hidayatullah v. The State 1982 P Cr. L J 30, the bail was allowed on the ground that there was inconsistency between the deposition of the eye witnesses and the Doctor"s report regarding the time of occurrence and thus, the case was one of "further inquiry".

In Zakaullah v. "Muhammad Khan and State 1984 P Cr. L J 2461, the bail was granted on the ground that the post mortem report, prima facie, adversely reflected on narration given in the F.I.R.

In Muhammad Abbas v. The State P L D 1988 S C (AJ&K) 14, the bail was allowed on the ground that as the two eye witnesses had filed affidavits disowning their statements under section 161, Cr.P.C. and the report of the Ballistic Expert was also not on the record, the case is one of "further inquiry".

In reply it has been contended by Malik Rab Nawaz Noon, Advocate,, appearing on behalf of the complainant, that in fact there were no contradictions between the contents of the F. I. R. , post mortem report and the statements of the witnesses recorded under section 161, Cr.P.C. The learned counsel has maintained that the F.I.R. was lodged by Akoo, who was not an eye witness, therefore, the mere fact that he had not attributed the stick blow to Sher Alam on the head of the deceased would not render the testimony of the prosecution witnesses doubtful. The learned counsel has argued that according to the statements of the eye witnesses and the post mortem report two blows were inflicted on the head of the deceased. The dimensions of the injuries on the head of the deceased show that the same were inflicted with different weapons. Thus, the learned counsel has maintained that apart from the injury by Muhammad Yusuf with "Ranbi", the other injury on the left side of the head of the deceased was inflicted by Sher Alam with stick and thus, the statements of the eye witnesses are corroborated by the medical evidence rather than contradicted by the same. He has further maintained that in cases where F.I.R. is not lodged by the eye witnesses, the same cannot be used for corroborating or contradicting the prosecution witnesses. He has referred to Siraj Din v. Kala and another P L D 1964 S C 26 and Sohni v. Bahaduri and 5 others P L D 1965 S C 111.

The learned counsel has further maintained that as according to the medical report, the death of Baqa Muhammad was caused as a result of injuries Nos.1 and 2 inflicted on his head, Muhammad Yusuf and Sher Alam both are individually liable for committing his murder. He has also maintained" that in view of the statements of as many as 6/7 eye witnesses, it cannot be said that there is no, prima facie, case against the accused persons connecting them with the commission of the murder of Baqa Muhammad. The learned counsel has argued that according to the prosecution case the accused party launched attack on Baqa Muhammad not as a result of any positive resistence offered by him to the execution of warrant of ejectment; rather he was attacked when he was only imploring for the postponement of the ejectment because Akkoo had gone to obtain a stay order in the matter. Thus, according to the learned counsel for the complainant, there is no room for arguments that the accused party had any justification to launch a sustained assault on the deceased and the women folk who tried to rescue Baqa Muhammad from their assault. The learned counsel has frankly conceded so far as the bail granted to Shakoor Alam is concerned; he does not assail the same.

We have given our due consideration to the arguments advanced at the Bar. It may be stated that it is not desirable at the bail stage to make a deep scrutiny of the prosecution evidence or express any opinion on, vital aspects of the case. At the bail stage if on the tentative assessment of the evidence, whether ocular or circumstantial, the Court comes to the conclusion that there are reasonable grounds for believing that the accused person is guilty of an offence punishable with death or life imprisonment, he shall be refused the concession of bail but if the Court comes to the conclusion that a further probe into the guilt of the accused person is necessary to make out a prima facie case against him, he may be released on bail. Whether the case of a particular accused person falls within the "ambit of "further inquiry" depends upon the peculiar circumstances of each case. Reference to the authorities based on the facts of other cases is not helpful in such matters. We may also observe here that this Court would not ordinarily interfere with the discretion exercised in bail matter by the Court below, until and unless the same is capricious, perverse or violative of the settled principle of law on the subject. In the instant case after giving tentative consideration to the contents of the F. I. R. the testimony of the eye witnesses and the post mortem report, we are not persuaded by the arguments advanced by the learned counsel for the appellant that the case of Muhammad Yusuf falls within the ambit of further inquiry" as stipulated under section 497, Cr.P.C. On the tentative assessment of the evidence he is, prima facie, connected with commission of the offence of murder. So far as the case of Sher Alam, accused/ respondent, is concerned we are of the view that only one stick blow on the head of the deceased has been attributed to him. The recovery memo of the stick used by Sher Alam shows that the same is about 3 feet 4 inches long; the breadth of the same has not been recorded in the recovery memo. Besides, after perusing the post mortem report we come to the conclusion that until and unless the statement of Doctor is recorded, it cannot be definitely said at this stage that the stick blow attributed to Sher Alam also contributed to the fracture of the skull of the deceased. In the aforesaid view of the matter we are constrained to observe that the discretion exercised by the Shariat Court in favour of Sher Alam cannot be said to be perverse, capricious or violative of the settled law on the subject.

The upshot of the discussion is that finding no force in the above titled appeals, the same are hereby dismissed.

M.Y.H./209/S.C.A. Appeals dismissed:

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