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Criminal Reference No.22 of 1988, decided on 24th December, 1988.

-----S. 497--Penal Code (XLV of 1860), S.307--Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss.15 & 25(4)--District Criminal Court, jurisdiction of--Bail granted by Tehsil Criminal Court--Difference of opinion between District Qazi and Sessions Judge while sitting in appeal as District Criminal Court---Reference made to AJ&K Shariat Court--District Criminal Court, held, had no jurisdiction to entertain appeal in view of S.25(2) of Azad Jammu and Kashmir Islamic Penal Law Enforcement Act against bail granting order of the Tehsil Criminal Court which could be challenged in revision before the AJ&K Shariat Court.

---S. 497--Penal Code (XLV of 1860), S.307--Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss.15 & 25(2)(4)--Right of appeal before District Criminal Court against decisions of Tehsil Criminal Court provided in earlier enactment--Later enactment provided right of appeal only against order of conviction by Tehsil Criminal Court--Appeal against order of acquittal by Tehsil Criminal Court made competent only before AJ&K Shariat Court--Interim orders of Tehsil Criminal. Court to be challenged in revision before AJ&K Shariat Court--Provisions of earlier enactment though not expressly repealed yet by implication it stood repealed by the later amending enactment.

---S. 497(5)--Penal Code (XLV of 1860), S.307--Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss.15 & 25(2)--Azad Jammu and Kashmir Shariat Court Ordinance, S.8--Revisional jurisdiction--Suo motu exercise in cancellation of bail--Day time occurrence--Fire-arm injury caused on vital part of body--Prosecution version supported by two eye-witnesses--Bail granted on the ground that accused was of young age, being a student of 9th Class--School certificate as evidence of his being student of 9th class produced-No evidence on record showed accused to be 15/16 years of age--Court found to have not applied its mind to facts of case--Bail granting order, he was passed in total disregard of rules governing bail matters and it was a 6t case for interference in exercise of the revisional powers available under the Code by virtue of S.8 of AJ&K Shariat Court Ordinance--Bail cancelled in circumstances.

---S. 497--Penal Code (XLV of 1860), S.307--Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.15--Bail, grant of--Affidavit of one witness exonerating accused, produced--Prosecution version supported by injured and still another witness coupled with corroborative medical evidence--Accused prima facie connected with crime--Bail refused in circumstances.

Muhammad Bashir v. Muhammad Zaman P L D 1985 (AJ&K) SC 48 ref.

-----When two enactments or provisions of law relate to the same point, later in time would be held applicable and operative.

Khalid Masud Public Prosecutor for the State.

M.Y. Surakhvi for the Complainant.

Ch. Ali Muhammad and Raja Muhammad Siddique Khan for Respondent.

Facts as disclosed in the F.I.R. briefly stated are that on 9-5-1988, Muhammad Akhlaq, Muhammad Shafique son of Sultan and Muhammad Shafique son .of Abdur Rashid left Dudyal on a motor-cycle for Potha Sher. On their way when reached on a place called Khari they found accused-respondent Azhar Mahmood standing in the road with a hockey in-his hand and the tune as listed in the F.I.R. was about 6 p.m. When they got close the accused is alleged to have attempted a hockey blow on Muhammad Shafique son of Abdur Rashid. Motor-bike got turned over in the process. The accused while uttering abuses took out revolver from his side pocket and fired a shot at Muhammad Shafique but missed him. Second shot fired by him however hit Muhammad Shafique on the left side of his chest. On alarm raised by the complainant and his companion Muhammad Shafique son of Sultan, the accused left the scene. Injured person thereafter was taken to the hospital by Muhammad Shafique son of Sultan. The complainant also followed them and went back to Dudyal on a motor-cycle belonging to one Ansar Mahmood: Written report was filed by Muhammad Akhlaq complainant with Dudyal police in the same evening at about 6-30 p.m. Occurrence is claimed to have been witnessed by the complainant and Muhammad Shafiq son of Sultan. Motive for the crime is stated to be the previous enmity on account of altercation and a fight between the parties some two months prior to the incident.

2. After having been arrested accused-respondent applied for bail which was allowed by the Tehsil Criminal Court, Dudyal on 15-5-1988. This order passed by the Tehsil Criminal Court, Dudyal allowing bail to the accused respondent was challenged by the State through an appeal filed before the District Criminal Court, Mirpur. Accused-respondent, in the estimation of the learned District Qazi, was entitled to the concession of bail. The order allowing bail to the accused passed by the Tehsil Criminal Court was, therefore, held by him to have been passed in accordance with law. The learned Sessions Judge however was of the view that in view of the facts available on record the accused could not be released on bail and the order passed by the Tehsil Criminal Court was held by him as having been passed violative to the rules governing bail matters. On account of this difference of opinion between the learned Members constituting District Criminal Court a reference has, therefore, been made to this Court.

3. By way of preliminary objection, Mr. Ali Muhammad Choudry, learned counsel for the accused-respondent submitted that in view of the provisions contained in Islamic Penal Laws (Enforcement) Act appeal against the bail order passed by the Tehsil Criminal Court before the District Criminal Court was not competent. Since the District Criminal Court did not have the jurisdiction to hear the appeal, the only way in which reference could, therefore, be answered is to hold that the hearing of the present appeal by the District Criminal Court is beyond its jurisdictional competence, submitted the learned counsel.

4. As regards merit, Mr. Muhammad Younus Surakhvi learned counsel for the complainant with the permission of the learned Additional Advocate-General contended that occurrence took place during the broad daylight wherein fire-arm has been used resulting in a serious bullet injury on a very vulnerable part of Muhammad Shafique"s body. As there existed sufficient evidence on record clearly connecting the accused-respondent with the crime, it could not be said that there was no prima facie case against the accused. In view of the facts available on record bail has been allowed to the accused by the Tehsil Criminal Court in total disregard to .the norms governing bail matters. The order therefore, was not maintainable. On the point of maintainability of the, appeal, Mr. Muhammad Yunus Surakhvi learned counsel contended that since the order allowing bail passed by the Tehsil Criminal Court, Dudyal could not legally be termed as interim in nature, appeal under section 25(4) of the Islamic Penal Laws (Enforcement) Act was competent before the District Criminal Court. In support of his arguments the learned counsel referred to an unreported judgment of the Supreme Court of Azad Jammu and Kashmir in Criminal Appeal No. 12/MR of 1986 title Muhammad Farooq v. State decided on 5-11-1986.

5. It was further contended by the learned counsel that the appeal before the District Criminal Court, even if be assumed, was not competent still the flagrant disregard of the settled norms governing bail matters by the Tehsil Criminal Court in passing the impugned order necessitated interference by this Court in exercise of its revisional powers available to it under law. The impugned order allowing bail to the accused-respondent was not in any case, therefore maintainable, submitted the learned counsel.

6. Controverting the arguments advanced or, behalf of the State-appellant, Choudri Ali Muhammad learned counsel for the accused-respondent contended that the prosecution"s case suffers from serious defects. From the facts available on record no prima facie case can be said to have been made out against the accused. Muhammad Shafique son of Sultan the alleged eye-witness of the occurrence denies his presence and knowledge of the incident. He also denies having made any statement before the police to the effect that he had seen the occurrence. His affidavit to this effect which has been placed on record is clear manifestation of the falsity of the prosecution case. Besides, challan has been submitted and the trial has started. The accused-respondent is on bail for last six months. No useful purpose under the circumstances would now, therefore, be served by cancelling his bail. The facts available on record do not warrant interference by this Court in the bail order which was passed by the Tehsil Criminal Court in proper exercise of its discretion, submitted the learned" counsel. On the point of affidavit, the learned counsel in support of his submission referred to P L D 1985 (AJ&K) SC 48. It was further contended that the accused respondent being 15/16 years of age and in view of the circumstances of this case was entitled to the concession of bail.

7. I have heard the learned counsel for the parties and have examined the record with care. The question in view of the points canvassed on behalf of the parties that now therefore, need determination are:-

(a) Whether the State"s appeal before the District Criminal Court was competent;

(b) Whether the revisional powers provided under the Criminal Procedure Code were available and if those could be exercised by this Court suo motu; and

(c) Whether the facts of the present case warrant interference by this Court in the impugned order passed by the Tehsil Criminal Court.

8. As regards the competency of the appeal before the District Criminal

Court, case of the appellant precisely put is that the bail order passed by the Tehsil Criminal Court although is not a final disposal of the case against the accused-respondent yet it determines the question of bail conclusively. As the point involved stood decided, it was final to that extent and was a decision. Since subsection (4) of section 25 of the Act has neither been repealed nor amended, appeal under it was, therefore, according to the learned counsel for the complainant competent.

9. The argument on careful consideration is found to have no substance. In order to have a correct perception of the point involved, it would be helpful to have a reference to section 25 of the Act both, in its original as well as in its amended form. Section 25 under the Act reads:-

This section after the Amendment Act of 1986 reads as:

10. Under subsection (4) of section 25 of the Act right of revision was provided for only against the interim orders passed by the Tehsil Criminal Court. Decisions by it were made appealable and the appellate forum was the District Criminal Court. Under subsection (2) of section 25 of the Amendment Act of 1986, appeals against acquittal orders by the Tehsil Criminal Court could be filed in the Shariat Court within six months while the forum for appeals against conviction orders was the District Criminal Court. Interim orders or the decisions of the Tehsil Criminal Court could be challenged only through a revision petition before the Shariat Court.

11. The argument that subsection (4) of section 25 of the Ad has neither been expressly repealed nor has it been amended by the Amendment Act of 1986, has no substance for the reasons:-

(a) Under subsection (4) of section 25 of the Ad, right of revision was provided only against interim orders and the forum was the Shariat Court. Against the decisions of Tehsil Criminal Court, right to appeal before District Criminal Court was made available under this subsection. As against this, now under subsection (2) of section 25 of the Amendment Act, 1986, right of appeal has been made available only in cases of acquittal and conviction orders passed by the Tehsil Criminal Courts. Even under the amended Act, appeal before the District Criminal Court was competent only against an order of conviction. Forum for appeal against the order of acquittal was the Shariat Court. The interim orders passed and decisions made by the Tehsil Criminal Court could be challenged through revision petitions before the Shariai Court. It is important to note that m subsection (4) in relation to revision petitions; the word used is only interim orders". Term decision" used in C it relates to appeal. In subsection (2) of section 25 of the amending Act in respect of revisions alongwith the word interim orders" has of Tehsil Criminal Court. Right of appeal has been provided under the subsection only in cases of conviction and acquittal but even appeal before the District Criminal Court has only been made available when filed against the order of conviction. By placing these two provisions; viz. subsection (4) of section 25 of the Act and subsection (2) of section 25 of the L amending Act, 1986, in juxta-position and from their comparative perusal, the difference between the two thus becomes evident. Subsection (4) of section 25 though not expressly yet by implication, in, my view, stands amended by the Amendment Act, 1986.

(b) The proposition may be considered yet from another angle. Assuming that subsection (4) in its original form, still stands intact on the statute book, note has to be taken of the fact that a fresh enactment on the same point covering the same subject has been brought about by the Legislature through the amending Act of 1986. It is a cardinal principle of interpretation that when two enactments or provisions of law relate to the same point, later in time would then be held to be applicable and operative.

12. I have also gone through the Supreme Court judgment in Criminal Appeal No. 12/MR of 1986 titled Muhammad Farooq v. State. In that case, on a bail application moved by the accused in a murder case, there was difference of opinion between the learned members constituting the District Criminal Court. On reference made to it, the Shariat Court agreeing with the finding arrived at by the learned Sessions Judge, held that the petitioners were not entitled to bail. On appeal before the Supreme Court, objections were taken as regards the competency of appeal before the Supreme Court on the ground that under subsection (2) of section 23 of the Ad, there was a difference of opinion at the time of final decision of the case between the members constituting the District Criminal Court and not under subsection (3) of section 23 when difference of opinion occurs not at the conclusion of but during the trial. While considering the proposition, it was observed by the Supreme Court that the word used in subsection (2) of section 23 and subsection (1) of section 25 of the Act is decisions" and not the decision culminating either into acquittal or conviction. It is thus dear that the facts of that case are quite distinguishable to those now under consideration in the present case and the legal principle enunciated in that case by the Supreme Court though perfectly valid to that case, has also no relevancy to the present case in view of the expressed and dear language employed by the Legislature in subsection (2) of section 25 of the amending Act. For the afore-stated reasons, appeal in the case before the District Criminal Court was not competent. The argument on the point on behalf of the appellant, therefore, stands rejected.

13. The question next needing resolution is as to whether this Court has the revisional powers available to it as provided under the provisions contained in the Criminal Procedure Code. Section 8 of the Azad Jammu and Kashmir Shariat Court Ordinance provides a complete answer to the proposition which reads as:-

The provisions of the Code of Criminal Procedure, 1898 (Ad V of 1898), shall apply mutatis mutandis, in respect of cases under this Ordinance.

Provided that in the said Code the word High Court, Sessions Court, and Magistrate First Class wherever occurring, shall be construed to mean the Azad Jammu and Kashmir Shariat Court, District Criminal Court and Tehsil Criminal Court, as the case may be, for the purposes of this Ordinance.

This legal position is not disputed by the learned Advocates for the parties either.

14. The plea of the learned counsel for the accused-respondent, however, is that the facts of this case do not justify interference by this Court suo motu in the order which has been passed by the Tehsil Criminal Court in proper exercise of the discretion that was vested in it under law. The question that now, therefore, remains to be determined is whether the facts and circumstances of this case warrant interference by this Court by having resort to the revisional powers available to it as provided under the Code. I have examined the record made available with utmost care. The incident, as already stated in the earlier part of this judgment, is alleged to have taken place at about 6 p.m. in the month of May, 1988 in which fire-arm was used. As a consequence of shot fired by the accused respondent, Muhammad Shafique was hit on the left side of his chest, a very vital F part of his body. There is evidence to the effect that from Dudyal he was taken to Mirpur C.M.H. and then referred to Rawalpindi for operation and treatment. Apart from the injured person, the occurrence is alleged to have been witnessed by two other persons. Their statements were recorded by the police under section 161, Cr.P.C. From the perusal of the record a dear prima face case connecting the accused with crime appears to have been made out. It cannot, therefore, be said that there do not exist reasonable grounds for believing that the accused committed a non-bailable offence.

15. The grounds made basis for claiming bail, listed in his petition before the Tehsil Criminal Court by the accused were:-

(a) That he was innocent and had falsely been implicated in the case; and

(c) That he being a student of 9th Class and of young age was entitled to the concession of bail". Precise word use in the application is

It is important to note that nowhere in the petition for bail has been listed the exact age of the accused. Only a school certificate as an evidence of his being a student of 9th Class was placed on record before the Tehsil Criminal Court. There was nothing whatsoever before the Court showing as to what was the exact age of the accused. While getting the certificate about his being a student, accused, if in fact was a minor could also get a school certificate as regards his age but did not choose to do so. Bail was allowed to the accused mainly on the grounds of his being 15/16 years of age and that he was a student. On what evidence Tehsil Criminal Court dime to the conclusion that the accused was of 15/16 years age, has not been shown by the Court in the bail order. Perusal of the record reveals that there was nothing on record before it at the time when the V bail order was passed showing the accused was of 15/16 years age. The Court, it appears, did not even care to apply its mind to the facts involved. The ground made basis for allowing bail is therefore, found to be artificial. Besides, age of 15/16 years in itself is seldom a ground for bail. Attending circumstances and conduct of the accused are also the factors to be taken into consideration.

16. It is no doubt correct that the trial Court had the competency to allow" bail in proper cases but then the Court is also expected under law to exercise its discretion with due care and caution and in judicial manner. The order allowing bail to the accused in the present case is found to have been passed in total disregard to the rules governing bail matters.

17. An affidavit alleged to be of Muhammad Shafique P.W. was placed on record of this Court on 26-11-1988 not by deponent but by the learned counsel for the accused-respondent and on the basis of this document it was argued that the accused has been involved in a false case. Police, according to him, had introduced the deponent as a witness of the occurrence while the witness denies having had witnessed the occurrence or that he ever made any statement before the police. This fact alone, according to the learned counsel, was reason good enough to allow bail to the accused. The argument in my view has no force for the reasons.

(a) Apart from the fact that the alleged deponent did not appear himself and filed the affidavit, the question still is as to what took him so long to I come forward and deny his having had witnessed the occurrence. Why did he not appear before the police or for that matter before the trail Court or the District Criminal Court.

(b) The argument has no force yet for another reason. Even if it be take: that this witness has resiled from his police statement, there still remain the statement of the injured person himself and that of Muhammad Akhlaque P.W. alongwith the supportive evidence in the shape of medico-legal report. This evidence available on record discloses a prima facie case against the accused-respondent clearly connecting him with the crime.

18. I have carefully gone through the report of the case titled Muhammad Bashir v. Muhammad Zaman P L D 1985 (AJ&K) SC 48. Large number of persons were named as accused in that case. Some senior Advocates filed affidavits that from among the accused-respondents who were three in number in that case were seen in the Court premises at the relevant time. The Supreme Court held that since discretion has been exercised in their favour which in view of the facts of that case did not appear to have been exercised improperly. It was held, therefore, that it was not a case fit for interference by the Supreme Court.

In a later case titled Muhammad Nazir v. State Criminal Appeal No.l of 1987 decided on 21-4-1987 the proposition again came to be considered by the Supreme Court of Azad Jammu and Kashmir under the following circumstances:-

Three of the prosecution witnesses in that case resiled from their police statements and filed affidavits that they could not identify the assailants at the time of occurrence that took place during the darkness of the night. It was held by the Azad Jammu and Kashmir Supreme Court that there still remained sufficient evidence available on record making out a prima facie case against the accused. Bail was, therefore, held to have rightly been declined to the accused in that case.

The principle enunciated in the case relied upon by the learned counsel for the accused-respondent was no doubt perfectly valid in relation to the facts of that case but has no application to the case now under consideration in view of its own attending circumstances. The argument on the point, therefore, is rejected.

19. As already stated in the earlier part of this judgment, the order allowing bail to the accused-respondent was passed by the Tehsil Criminal Court in total disregard to the rules governing bail matters. Even the learned District Qazi while recording his reasons for allowing bail in relation to section 15 of the Islamic Penal Laws (Enforcement) Act did not even bother to consult the record and as a result of this lapse committed by him it escaped his notice that one of the offences accused-respondent is charged with is under section 307 of the Penal Code as well punishment for which could be upto life imprisonment. In ultimate analysis the bail order is found to have been passed by the Tehsil Criminal Court without proper application of mind and it was a case of arbitrary exercise of discretion.

20. For the aforestated reasons and in view of the facts and circumstances of this case, it is a fit case for interference by this Court in exercise of its revisional powers made available to it under the Code. The order passed by the Tehsil Criminal Court allowing bail to the accused-respondent for having been passed without proper application of the mind, is, therefore, set aside. The bail allowed to the accused-respondent stands cancelled.

SA./351/HCA

Bail cancelled.

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