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Criminal Appeal No.6 of 1988, decided on 7^thDecember, 1988.

(On appeal from the judgment of the Shariat Court dated 10 3 1988 in Criminal Revision No.114 of 1987).

S.497 Penal Code (XLV of 1860), S.302 --Bail Bail in non bailable cases is a matter within discretion of Court, which is to be exercised with due care and caution on facts and circumtances of each case.

S.497 Penal Code (XLV of 1860), S.302 Bail Determination of point as to whether bail could be allowed to a person accused of an offence punishable with death or transportation for life, will depend on facts of each case-- Courts are not to evaluate evidence in minutes details but are required to consider as to whether upon the material on record, grounds for belief that the accused has or has not committed offence punishable with death or imprisonment for life exist or not.

-- S.497 Penal Code (XLV of 1860), S.302 Bail Plea of self--defence No material on record showing that accused had acted in self defence Such questions require deep and detailed appreciation of evidence which is primarily function of Trial Court.

5.497 Penal Code (XLV of 1860), S.302 Bail Whether-complainant party had assumed role of aggressive or accused had exercised their right of self defence in firing, at the deceased, cannot be possibly decided at bail stage.

S.497 Penal Code (XLV of 1860), S.302 Bail Mere fact that accused was found injured could not be a ground for bail, there being nothing on record to show as to how and by whom he was injured.

S.497 Penal Code (XLV of 1860), S.302 Bail Reasonable grounds for believing the accused to be connected with commission of "offence of murder, appearing on record Discretion exercised by lower Court in refusing bail was not disturbed by Supreme Court:

Kh. Muhammad Saeed, Advocate for Appellants.

Manzoor Hussain Gilani, Advocate General for the State.

This appeal seeks exception to the judgment passed by the Azad Jammu and Kashmir Shariat Court on 10th of March, 1988, whereby the Shariat Court declined to allow concession of bail to the appellants, Muhammad Hanif and Muhammad Yusuf, and proceeded to dismiss the revision petition.

2. The case of the prosecution, in brief, is that the complainant party had obtained a decree for the possession of land under survey No.171 situate in the area of village Chhota Gala, Tehsil Rawalakot, against the accused appellants and some other persons from the Court of Sub Judge, Rawalakot. Muhammad Tufail, deceased, who was attorney of the decree holders, occupied the said land after the decree. The appellants, according to the prosecution, on 29 6 1986, accompanied by Dalawar Khan, Muhammad Khan and Muhammad Hussain entered into the suit land and started ploughing the same; on which Muhammad Tufail, Said Akbar (deceased) and Muhammad Akram Khan, proceeded towards that land but in the way Muhammad Hanif, appellant, and Muha4nmad Khan, co accused, fired at Muhammad Tufail with their 12 bore guns causing injuries on his belly while Muhammad Yusuf, fired a gun shot at the belly of Said Akbar. Both the injured persons succumbed to fire7arm injuries. It appears that the Shariat Court, in its judgment, was mistaken to place the site of occurrence to be in the field which, according to the prosecution, was under plough at the time of occurrence.

3. All the accused mentioned above were sent to face trial for the double murder before the District Criminal Court, Poonch, Rawalakot.

4. The appellants accused sought concession of bail through an application moved before the District Criminal Court but the same was rejected vide order dated 29th September, 1987. This rejection order was unsuccessfully called in question by way of a revision petition in the Shariat Court, which was disallowed on 10 3 1988. Hence this appeal to assail the said judgment of the Shariat Court.

5. In support of his stand it was contended by Kh. Muhammad Saeed, the learned counsel for the appellants, that the complainant party including the deceased had attempted to forcibly take possession of the land, which was in possession of the accused appellants; and while doing so they had also caused grievous injury to one of the accused, namely, Dalawar Khan. The learned counsel, thus, seeks reversal of the rejection order of the bail made by the Courts below on the ground that the appellants fired at the complainant party in exercise of the right of self defence of person and property and, therefore, they are entitled to be released on bail pending decision of the case. It was further contended that the appellants had lodged a private complaint wherein it is specifically stated that the occurrence took place in the field which was under plough and the complainant party was aggressor; and as there are counter versions pending adjudication, the appellants are to be released on bail and the learned Shariat Court has misdirected itself in refusing bail to the appellants.

6. The learned Advocate General, on the other hand, had contended that the occurrence never took place in the way the Shariat Court has narrated in the impugned judgment; rather the deceased were fired at a place distant from the disputed field and the site of occurrence falls within the area of village Kuian and the disputed land falls within the area of village Chhota Gala. Therefore, the learned counsel maintained that the question of self defence of person or property" does not arise at all. He further maintained that mere cross versions without any evidence has never been considered to be a suffid9ent ground to allow bail in a murder case and if such proposition of law is accepted the parties would be given a chance in every case, to concoct counter versions.

7. We have considered the arguments addressed at the Bar in the light of the facts and circumstances of the case and material on the record. We are of the opinion that the appellants are not entitled to the concession of bail at this stage.

8. Bail in non bailable cases is a matter within the discretion of the Court, which is to be exercised with due care and caution on the facts and circumstances of each case. The determination of the point as to whether bail can be allowed to a person accused of an offence punishable with, death or transportation for life will depend on the facts of each case. However, it is not for the Courts at the bail stage to evaluate the evidence in minutest details but they are required to consider as to whether upon the material on record such grounds, for belief, that the accused has or has not committed the offence punishable with death or transportation for life exist or not.

9. In this case there is no materialf on the record to satisfy us that the appellants had acted in self defence. Besides, the question of self defence requires deep and detailed appreciation of the evidence"" which is primarily the function of the trial Court. At bail stage it would be premature for this Court to have a word on this aspect. Therefore, even if we assume that the complainant party was aggressor, it cannot be said at this stage that the appellants were justified to inflict gun shot injuries to the deceased. Besides this is the exclusive function of the trial Court.

10. Apart from the above, the appellants have also not pleaded self defence in the lower Court in their statements under section 242 Cr.P.C. nor there is evidence on it. Therefore, the argument that the appellants had acted in self defence has nd force and is to be rejected.

11. Likewise, the argument of Kh. Muhammad Saeed that the occurrence took place in survey No.171 is not supported by the record. The F.I.R., the evidence so far recorded by the prosecution and site plan prima facie, show that the occurrence took at a place, which falls within the area of village Kuian while the land under survey No.171 is situated in the area of village Chhota Gala. Therefore, the argument that the occurrence took place in survey No.171 is not available to the learned counsel for the appellants and stands repelled. The question as to whether the land under survey No.171 was in possession, of the complainant party or the accused party has little bearing at this stage in determining the question of bail.

12. Our conclusion, therefore, is that at this stage it cannot be possibly said that the complainant party has assumed the role of aggressor in occupying the land under survey No.171 nor it can be I said that the appellants had exercised their right of self defence of property or person in firing at the deceased. Similarly the mere fact that Dalawar Khan, accused has also been found to have received injuries on his person cannot be made a ground for release of the appellants on bail. There is nothing on record to show as to how and by whom he was injured. Besides, there is little material at this stage to say that the act of injuring Dalawar Khan could provide justification for killing two persons by fire. Therefore, the argument that the appellants had exercised the right of self defence causing death of Muhammad Tufail and Said Akbar stands rejected.

13. In view of the above, prima facie there appears reasonable ground for believing the appellants to be connected with the commission of offence of murder in which bail is prohibited by law. The learned Shariat Court in our view has exercised the discretion in legal way and nothing could be brought out in arguments to disturb the discretion in refusing bail to the appellants.

For the aforesaid reasons this appeal is dismissed hereby.

M. A.K./233/S.C.A.

Bail refused

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