THE STATE Versus GHULAM RASOOL

KHAWAJA MUHAMMAD SAEED, J.‑‑‑ This criminal revision petition is directed against the order of the Shariat Court of Azad Jammu and Kashmir dated 5‑4‑2002 whereby the accused‑respondent was allowed bail in a case under section 302/34, A.P.C.

2. There is no need to mention in detail the facts of the case, suffice it to say that Saif Ullah lodged a complaint at Police Station Kahuri at 8‑30 p.m. on 11‑7‑2001 in which he alleged that the complainant pasty and the accused persons had dispute over "Shamilat Deh" land. According to him on the day of occurrence at 9‑30 a.m., the complainant and his brother Ghulam Hassan were removing bushes from the disputed "Shamilat Deh" land when Ghulam Rasool accused respondent, accompanied by Akhtar Zaman, Muhammad Riaz and Muhammad Aziz‑ul‑Hassan arrived at the scene of occurrence and launched art attack upon the brother of the complainant. He was beaten by the accused persons with the sticks. Even some of the accused persons pelted stones on the deceased. The hue and cry attracted Nawaz, Sher Zaman, Mst. Faiz Noor and Mst. Rukhsana, at the scene of occurrence who also witnessed this occurrence. Later on, Ghulam Hassan died at the spot. In later part of his F.I.R. he attributed a stick blow, by the accused respondent on the head of deceased Ghulam Hassan. In post‑mortem report this head injury was reported as cause of death of deceased Ghulam Hassan.

3. After taking necessary investigations all the accused nominated in F.I.R. were sent to face trial before the District Court of Criminal Jurisdiction, Muzaffarabad. In their statement recorded under section 242, Cr.P.C. the accused claimed their trial‑by denying the allegation levelled against them for the murder of Ghulam Hassan deceased. The trial Court recorded the statements of all the eye‑witnesses. The petitioner, who in the first round of litigation was denied concession of bail on the allegation contained in F.I.R. that he inflicted injury on the head of deceased Ghulam Hassan, moved fresh bail application before the trial Court on 16‑6‑2000 on the ground that none of the prosecution witnesses has attributed any stick blow on the heed of deceased by him, therefore, his case being similar and identical with the case of other accused persons he also deserves bail, because co‑accused with him have been released on bail and their bail order has been maintained by the apex Court. The trial Court dismissed his application vide order of the Court, dated 14‑9‑2001. The correctness of this order was challenged by him through a revision petition before the Shariat Court on 28‑9‑2001. The learned Judge in the Shariat Court allowed the bail application vide judgment, dated 5‑4‑2002 by following the rule of consistency. This judgment is under challenge in the present revision petition before us.

4. Raja Ibrar Hussain, the learned Advocate‑General, argued that the Shariat Court has discussed in detail the evidence of the prosecution and in fact has recorded the acquittal order in favour of the accused party. According to him at bail stage Courts are not allowed to indulge into close scrutiny and deep appreciation of material brought by the prosecution on record, therefore, the judgment under challenge has prejudiced the case of the prosecution. He further argued that in the first round of litigation the bail was denied to the accused‑respondent on the allegation levelled by the complainant in the F.I.R. therefore, as statements of eye‑witnesses were recorded in the case the Shariat Court should have refused him concession of bail as only statements of formal witnesses are left to be recorded by the trial Court.

5. On the other hand, Kh. Muhammad Naseem, the learned counsel for the accused‑respondent, argued that in this case F.I.R. was recorded after the delay of 11 hours in which in the first part it was not mentioned that who out of the accused persons inflicted stick blow on the head of the deceased. However, in the later part of F.I.R. the accused respondent was blamed for inflicting fatal blow on the head of the deceased and this reason was found sufficient by all the Courts in the first round to refuse him the concession of bail. The statements of the eye‑witnesses were recorded in the case in. which none of the witnesses have deposed that the accused‑respondent inflicted fatal blow on the head of the deceased. All the witnesses have given him the identical role which was attributed to Akhtar Zaman who was released, on bail by the lower Courts and his bail order was maintained by this Court. In these circumstances he while placing reliance on the authority of this. Court in a case reported as Muhammad Siddique and another v. The State and another 2001 PCr.LJ 1073 defended the judgment of the, Shariat Court as it has followed the rule of consistency and the spirit of the above -referred judgment of this Court. He also supported the judgment of the Shariat Court on the ground that the bail order cannot be passed in vacuum. The Court has to look into the F.I.R., the statements of the prosecution witnesses and other material in order to form opinion as to whether' a seasonable ground exists for believing that the accused has committed a non‑bailable offence and thus his case is covered by the prohibitory clause of section 497, Cr.P.C. or not.

6. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. We agree with the learned counsel for the accused‑respondent that at bail stage it is obligatory for the Court seized with the bail matter to look into the F.I.R., the statements of the prosecution witnesses, the medical evidence, recoveries and other material supporting, the prosecution version, alongwith defence plea, if any, and then decide the question of bail one way or the other. However, the Appellate Courts while deciding the bail matter should not enter into the deep appreciation of evidence rather should restrict themselves to the tentative assessment of the material available on the record against the accused‑respondent and satisfy themselves that if such material remains un-rebutted the same shall lead to the inference of the guilt of the accused or not. However, it must be remembered that appreciation of evidence and drawing a conclusion therefrom is within the exclusive domain of the trial Court, the Appellate Courts should not anticipate certain results from such material while dealing with ancillary matters like bail. However, if during tentative assessment of evidence if any doubt is available the same must necessarily be resolved in favour of the accused‑respondent. In the present case, prima facie, the role of accused‑respondent is identical to the role attributed to Akhtar Zaman. Therefore, following the rule of consistency, the learned Judge in the Shariat Court was justified in allowing him concession of bail. However, the language used in the order of the Shariat Court must be taken only in respect of bail matter of the accused‑respondent and the trial Court while recording the final judicial verdict should not be influenced by the under challenge judgment of the Shariat Court, dated 5‑4‑2002.

With these observations this revision petition to the extent of bail matter of accused‑respondent having no merit is dismissed.

H.B.T./51/SC(AJ&K) Revision petition dismissed.