KHADIM HUSSAIN QAISER, ADVOCATE/MEMBER, PUNJAB BAR COUNCIL, GUJRAT Versus PRESIDENT, BAR ASSOCIATION, GUJRAT

MUHAMMAD YUNUS SURAKHVI, J .--- This appeal, as of right, has been preferred against an order recorded by Shariat Court of Azad Jammu and Kashmir on 24th March, 1996, whereby the Criminal Revision Petition No. 14 of 1996, filed by respondents 3 and 4 herein was accepted and they were released on bail, while the Revision Petition No.26 of 1995, filed by the appellant herein for cancellation of bail of respondents 1 and 2 was dismissed.

2. The precise facts, forming the background of the present appeal are that Muhammad Waheed, the: appellant herein, lodged a written report at Police Station Trarkhal on 22nd March, 1995, at 12-30 afternoon stating therein that at about 10-30 a.m. Muhammad Saleem, Muhammad Ilyas, sons of Muhammad Sharif, Muhammad Saleem son of Muhammad Ayub Khan and Muhammad Kabir, Sudhan, by caste, residents of Kahala, Tehsil and District Pallandri started digging a Khalsa land for the construction of a house. The said land was reserved for the construction of police post and a building for Agriculture Department. According to the complainant (appellant) the land in dispute .was adjacent to the land of his father Ghulam Rasool. Ghulam Rasool, the father of complainant, Muhammad Saghir, his brother and the complainant seeing the accused party busy with the construction work went on the spot for restraining them from construction. Upon their objection to refrain from construction, the accused persons got infuriated and with an intention to kill opened the attack. The accused chased the father of complainant and caught hold of him after chasing him for about 90/100 yards. Muhammad Saleem accused son of Muhammad Sharif, caught hold of Ghulam Rasool from his neck and started pressing it while Muhammad Kabir accused son of Dil Muhammad held Ghulam Rasool from the sensitive part of his body. Muhammad Saghir, the brother of complainant was attacked with sticks and stones by accused Muhammad Saleem and Muhammad Ilyas sons of Muhammad Ayub and caused injuries on his head, face, nose and leg. Muhammad Saleem accused son of Muhammad Sharif was also carrying a .12 bore gun and a pistol in his hand who also resorted to firing with his pistol. As a result of injuries caused by the accused persons the father of complainant breathed his last and Muhammad Saghir, his brother, was injured. The occurrence, besides complainant, was witnessed by Ghulam Murtaza and Muhammad Habib, the co-villagers. On this report a case under section 5/15 of Islamic Penal Laws (Enforcement) Act, 1974, read with section 307/34, A.P.C. was registered against the accused. After the conclusion of the investigation the police forwarded the accused before the Additional District Criminal Court, Pallandri for facing their trial under sections 302/324, 34, 307, A.P.C. Accused Muhammad Saleem and Muhammad Ilyas sons -of Muhammad Sharif, respondents 1 and 2 herein moved an application for their bail before arrest in the Court of Additional District Criminal Court, Pallandri which was allowed to them by the said Court on 30-4-1995, while accused Muhammad Saleem son of Muhammad Ayyub Khan and Muhammad Kabir son of Dil Muhammad Khan, respondents Nos.3 and 4 herein, moved their bail application after arrest in the trial Court but their prayer was declined on 30-9-1995. Feeling aggrieved with the pre-arrest bail grant order of Muhammad Saleem and Muhammad Ilyas respondents Nos. l and 2, appellant Muhammad Waheed, the complainant, filed a Revision Petition No.26 of 1995, in the Shariat Court while Muhammad Saleem son of Muhammad Ayyub and Muhammad Kabir son of Dil Muhammad respondents feeling aggrieved with the order of their refusal of bail by the trial Court filed Criminal Revision Petition No.14 of 1996. The aforesaid both the revision petitions were disposed of by the Shariat Court through a single order, dated 24-3-1996, whereby Revision Petition No.26 of 1995 filed by appellant for cancellation of bail of Muhammad Saleem and Muhammad Ilyas accused sons of Muhammad Sharif was dismissed while the Criminal Revision Petition No. 14 of 1996 filed by, Muhammad Saleem son of Muhammad Ayyub Khan and Muhammad Kabir son of Dil Muhammad Khan, respondents Nos.3 and 4, was accepted and they were released on bail. The aforesaid order of Shariat Court, dated 26-3-1996 is subject of present appeal.

3. Sardar Rafique Mahmood Khan, the learned counsel for the appellant submitted with vehemence that all the accused respondents are fully connected with the offence of murder and the attempt to commit murder but the trial Court as well as the Shariat Court in violation of the accepted principles governing the subject of grant or refusal of bail' granted the concession of bail to them. According to the learned counsel, it was a daylight occurrence, the eye-witnesses were duly named in the First Information Report and the role attributed to each accused was specifically mentioned therein. Accused respondent No.3 Muhammad Saleem caught hold of Ghulam Rasool (deceased) from his neck and started pressing it with an intention to kill while accused respondent No.4 Muhammad Kabir son of Dil Muhammad caught hold of Ghulam Rasool (deceased) from the sensitive part of his body and by pressing his testicles caused the death. Accused Muhammad Saleem and Muhammad Ilyas respondents Nos. l and 2 armed with sticks and stones caused injuries on the person of Muhammad Saghir, the brother of appellant. The learned counsel strenuously pressed into service the submission that the accused party with a common object of causing death of Ghulam Rasool (deceased) and making life attempt on Muhammad Saghir initiated the attack. The learned counsel further argued that there was no material suggestive of the nature on the basis of which the concession of bail pre-arrest should have been allowed to respondents Nos. l and 2 and similarly on the basis of artificial and superficial grounds the concession of bail after arrest was granted to Muhammad Saleem and Muhammad Kabir accused, respondents Nos.3 and 4. The learned counsel maintained that the Shariat Court fell in a grave legal error, particularly by allowing the concession of bail to respondents Nos.3 and 4 who caused injuries on the person of deceased as a result of which he died on the spot. The learned counsel submitted that the observation made by the learned Shariat Court that pressing the testicles of the deceased with his hand by accused Muhammad Kabir son of Dil Muhammad does not fall within the definition of word weapon or a substitute for a weapon as provided under section 5 of Islamic Penal Laws Act, is totally unwarranted and uncalled for at the stage of bail. The Shariat Court acted beyond its jurisdiction at the stage of bail to go into deeper appreciation that the case does not fall within the purview of section 5 of Islamic Penal Laws Act, and on the other hand the offence appears to have been committed is that of " Qatal Shubh Umd " for which the sentence provided is "Diyyat". On the aforesaid analogy, accused respondent No.4, according to the learned counsel who was principal accused was illegally extended the concession of bail. Similarly accused respondent No.3 who pressed the deceased from his neck having facilitated the murder was also not entitled to the concession of bail. It was also contended by the learned counsel for the appellant that the revision petition filed by respondents Nos.3 and 4 against their bail refusal order, dated 30-9-1995 was clearly beyond the period of limitation of sixty days but the Shariat Court illegally released them on bail.

4. Mr. Muhammad Ibrahim Zia, the learned counsel for the respondents, controverting the arguments of the learned counsel for the appellant, maintained that the order recorded by the Shariat Court was perfectly valid justifying no interference by this Court. The learned counsel submitted that accused respondent No.4 Muhammad Kabir son of Dil Muhammad, according to the prosecution story is alleged to have pressed. the testicles of the deceased with his hand so the hand used by the accused respondent for the commission of offence cannot be said to be either the weapon or its substitute as provided under section 5 of the Islamic Penal Laws (Enforcement) Act. According to the learned counsel from the tentative assessment of the evidence brought on record by the prosecution, the inevitable conclusion that one reaches is that the alleged offence falls within the ambit of section 6 which postulates the offence of " Qatal Shubh Umd "for which the sentence provided is Diyyat. So according to the estimation of the learned counsel the Shariat Court committed no illegality and the order suffered from no such infirmity as suggested by the learned counsel for the appellant. In support of his contention the learned counsel for the respondent referred to pages 141, 144, 145 and 195 of a book known as Qisas and Diyyat translated by Muhammad Mian Siddiqui. On the authority of the aforesaid book it was strenuously contended that the hand used by accused respondent No.4 for the alleged commission of offence cannot be either a weapon or a substitute for the weapon. As regards accused respondent No.3 Muhammad Saleem, the learned counsel submitted that facts and circumstances of the case do not support prosecution version as the only allegation against him is that he pressed the deceased from his neck. This version does not find any support from the medical evidence. So far as the rest of the accused are concerned they are not said to have made any overt act qua the deceased rather the allegation against them is that they caused simple injuries to a prosecution witness, namely, Muhammad Saghir. According to the medical report the said injuries have been declared simple by the Doctor and as such the accused respondents Nos.1 and 2 were entitled to the concession of pre-arrest bail. The complainant side cooked up a false and fictitious case against the accused persons so that none of them should be able to defend himself from the agony of the trial, submitted the learned counsel. The learned counsel argued that the argument advanced from the appellant's side that revision petition filed by respondents Nos.3 and 4 was beyond the period of limitation was not acceptable to him for the simple reason that the petition moved by respondents Nos.3 and 4 was in fact a bail application and the Additional District Criminal Court and the Shariat Court had the concurrent jurisdiction. The learned counsel in support of his contention relied on a reported case of this Court titled Muhammad Bashir v. State 1992 SCR 33.

After hearing the respective contentions of the learned counsel for the parties and perusing the record--made available with care we may in the first instance deal with the objection raised by the learned counsel for the appellant that the revision petition filed by respondents Nos.3 and 4 against their bail refusal order passed by the Additional District Criminal Court on 30-9-1995, was clearly beyond the period of limitation of 60 days. Mr. Ibrahim Zia, the learned counsel for the respondent, met this point by relying on a reported case titled Muhammad Bashir v. State 1992 SCR 33, on a difference of opinion between the two learned Judges of the Shariat Court arising out of bail matter, one view was that the District Criminal Court has no jurisdiction to entertain an appeal against the order-passed by Tehsil Criminal Court on a bail application and such order can only be challenged by filing a revision petition in the Shariat Court. The other view was expressed by another Judge of the Shariat Court after dismissing the revision petition filed in the Shariat Court against the order recorded by the Tehsil Criminal Court arising out of bail matter on the ground that accused persons should have, in the first instance moved the District Criminal Court for grant of bail. Taking notice of the divergent opinion between the learned Judges of the Shariat Court it was opined by this Court at page 38 of the report in the following manner;--

"The scheme of the Code of Criminal Procedure, in respect of bail matters, is contained in sections 497 and 498. The trial Court can release a person on bail but cannot accept pre-arrest bail. The High Court and the Sessions Court have been authorised to grant bail in any case. The powers granted to these Courts can be exercised co extensively. No such scheme is incorporated in the Islami Tazeerati Quaneen Nifaz Act. This Act does not lay down that the Shariat Court or District Criminal Court shall have the power of granting pre-arrest bail or that these Courts would be authorised to grant bail in any case which may not be pending with it. Section 32 of the Act does lay down that where a specific provision is not made in respect of any matter in that Act then in respect of that matter Code of Criminal Procedure would apply but Code does not make any mention of the Shariat Court or the Sessions Judge. It is for this purpose that section 8 of the Shariat Court Ordinance, reproduced above, has been enacted. This section adequately meets the requirement of providing the necessary linkage. It is clear that the scheme of Code of Criminal Procedure in respect of bail matters is thus fully applicable to the cases of Islami Tazeerati Quaneen Nifaz Act. Therefore, the view expressed by Sardar Muhammad Ashraf Khan, J. correctly lays down the law on the subject."

Therefore, in our view, the petition moved by the respondents Nos.3 and 4 for their release on bail by setting aside the order recorded by the Additional District Criminal Court was in fact a bail petition. There being no period of limitation provided in the Code of Criminal Procedure, the petition for bail could have been moved at any time by the aforesaid respondents. The objection raised by the learned counsel for the appellant, thus, stands repelled.

5. The Shariat Court fell in a grave error by appreciating the prosecution evidence into minute details at the stage of bail. The -Shariat Court was not required at this stage to observe that the case against accused /respondents does not fall within the purview of section 5 of Islamic Penal Laws Enforcement Act, and the same falls under section 6 of the said Act, the punishment of which is provided as Diyyat. At the stage of bail the Shariat Court should have made tentative assessment of F.I.R. statements recorded under section 161, Cr.P.C., medical evidence and the plea of defence, if any raised by the accused. The observation made by the Shariat Court that the case falls within the ambit of section 6 of Islamic Penal Laws Enforcement Act, in our considered view, amounts to pre-empting the job of the trial Court. Thus, the Shariat Court acted beyond its jurisdiction and in a way has seriously prejudiced the-.case of the prosecution. From the tentative perusal of F.I.R. statements recorded under section 161, Cr.P.C. and medical report, we have reached the conclusion that the material brought on record prima facie tends to connect the accused Muhammad Kabir with the commission of offence of murder by pressing the testicles of the deceased with his hand. The F.I.R. and statements of two prosecution witnesses, namely, Ghulam Murtaza and Muhammad Habib prima facie connect the aforesaid accused with the commission of the offence alleged by the prosecution. The medical evidence also corroborates the ocular version of the eye-witnesses. The first informant, Muhammad Waheed, in the F.I.R. clearly alleged that Muhammad Kabir accused caught hold of the deceased from the sensitive part of his body but in his statement under section 161, Cr.P.C. there is a slight contradiction that both Muhammad Saleem and Muhammad Kabir accused caught hold of the deceased from the sensitive part of the body. In our view this contradiction, if any, is minor in nature, which may be explained by Muhammad Waheed, the first informant, at the time of trial during the course of his evidence.

6. Another significant aspect of the matter is that challan against the accused respondents after the conclusion of the investigation by police was presented in the trial Court under sections 302, 324, 307, 34, A.P.C. It is indeed correct that at the time of occurrence the relevant offence applicable was section 5, Islamic Penal Laws Enforcement Act, but when challan was submitted the amendment in the relevant law had been introduced and for this reason the challan was submitted under the provisions of Penal Code. It is exclusively within the domain of the trial Court to reach after the end of trial, the conclusion as to whether the offence alleged against the accused falls within the purview of Islamic Penal Laws Enforcement Act or Penal Code. However, it was premature at the stage of bail to give a conclusive finding that the offence falls under section 6 of the Islamic Penal Law Enforcement Act.

7. The Shariat Court also fell in error by saying and recording the finding that it was the complainant party and the eye-witnesses who obstructed the accused from raising the construction over the Crown land, whereas they had no concern to refrain the accused persons from raising any construction. An impression has been created by the Shariat Court that perhaps aggression was made from the complainant's side. With all the fairness, this also tantamounts to judgment in advance at the stage where the same was neither permissible nor desirable. As regards the accused/respondents Nos.1 and 2 they are only stated to have caused simple injuries to the prosecution witness, namely, Muhammad Saghir, the injuries on his person have been declared simple by the medical report. These accused have not been attributed any overt act towards the deceased. It still remains to be determined as to whether these accused persons shared the intention of principal accused in the commission of the offence. In this view of the matter the discretion exercised by the trial Court as well as by the Shariat Court extending them pre-arrest bail appears to be validly and properly exercised. We, therefore, do not feel advised to interfere in the judicial exercise of the discretion by the trial Court and the Shariat Court. In so far as the allegation against Muhammad Saleem, respondent No.3 is concerned, he is alleged to have caught hold of deceased from his neck. This prima facie appears to be a bare assertion not supported by the medical report. The role played by this accused also needs further inquiry, particularly in view of the fact that according to prosecution story, it was also alleged that this accused was also armed with .12 bore gun and pistol and resorted to firing as well which in the circumstances of the case, prima facie, does not appear to be plausible. Therefore, the concession of bail extended to him does not warrant our interference.

8. We have already observed that prima facie Muhammad Kabir accused respondent No.4 is connected with the commission of the offence as alleged by the prosecution. The prosecution version is fully supported by the eye-witnesses who have been duly named in the F.I.R. The occurrence is one of daylight and keeping in view the allegation and the material available against him the concession of bail extended to this accused is against the relevant law and rules governing the subject of bail matters. His bail, therefore, stands cancelled.

For the foregoing analysis the appeal filed by the appellant to the extent of cancellation of bail of Muhammad Kabir accused respondent No.4 is accepted and the same to the extent of the rest of the accused is dismissed.

N.H.Q./139/SC/AJ&K Order accordingly