MUHAMMAD ASLAM KHAN Versus FARQUAT HUSSAIN

KHAWAJA MUHAMMAD SEED, J.‑‑‑ The above titled criminal appeals are directed against the judgment of the Shariat Court, dated 26‑4‑2002, whereby the pre‑arrest bail allowed by the learned Qazi, a Member of District Court of Criminal Jurisdiction, Kotli on 25‑4‑2001, was confirmed. As the identical questions of law and facts are involved in both the appeals, therefore, these shall be disposed of through this single judgment.

2. There is no need to discuss in detail the facts of the cases suffice it to say that accused respondents Nos. 1 to 3, in Criminal Appeal No.30 of 2002 are facing charges in a criminal case under sections 324, 341, 337/34, 427, 148, 149 and 506, A.P.C. They moved an application for the grant of interim bail before the District Court of Criminal Jurisdiction, Kotli which was initially allowed to them. However, in the light of the record the interim bail was confirmed by the District Qazi while the learned Sessions Judge, Kotli, declined to confirm the same. On account of the difference of opinion between the learned Members of the Court, a reference was made to the Shariat Court which was decided by the learned Chief Justice of the Shariat Court who opined that it is settled proposition of law that "when there is a difference of opinion between the members of the Bench, the opinion which favours the accused persons must be adopted unless any glaring injustice is pointed out". On the basis of this principle the learned Chief Justice agreed with the District Qazi. Consequently, the interim bail granted to the accused persons was confirmed.

3. In Criminal Appeal No. 17 of 2002, the complainant Muhammad Aslam has challenged the order of the learned Chief Justice before this Court whereby, in a case under sections 324, 341, 337/34, 427, 148, 149 and 506; A.P.C. the interim bail of accused persons was confirmed by the District Qazi whereas in the wisdom of the learned Sessions Judge they were not entitled to the concession of bail, as such, he cancelled, their bail. The matter was resolved in a reference by the learned Chief Justice of the Shariat Court on the ground that it is a settled principle of law that in case of difference of opinion between the learned members of the Bench the opinion of the member of bail matters which favours the accused person must be adopted unless any injustice is pointed out. The learned Chief Justice on the basis of this principle maintained the order passed by the District Qazi and differed with the order of Sessions Judge, Kotli.

4. Both the learned counsel for the parties argued that in the circumstances of the case, the learned Sessions Judge formed the opinion that the accused persons were not entitled to the concession of bail in view of the part attributed to them in the occurrences but in the opinion of the District Qaz, they were entitled to the concession of bail. Due to the difference of opinion between the learned members of the Court it was incumbent upon the Shariat Court to decide the case on merits and pass appropriate order as required by law. According to the learned counsel the learned Chief Justice misdirected himself by holding that it is a settled proposition of law that in case of difference of opinion between the learned members of the trial Court in a bail matter, the view expressed in favour of accused, must be followed by the Appellate Court as of principle. According to them while recording final verdict in criminal cases the Courts have held that if a fact is subject of more than one explanations, the one favourable to the accused must be preferred. This principle does not apply in bail matters.

5. The learned Additional Advocate‑General also supported the arguments of the learned counsel for the appellants and requested that as the question of bail has not been resolved on merits by the learned Shariat Court, therefore, the case be remanded to the Shariat Court for fresh decision in accordance with law.

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 parties that the learned Chief Justice of the Shariat Court should have decided the reference on merits. It appears that the judgment has been given in haste without looking into the merits of the case. It is not the settled proposition of law that an Appellate Court is bound to confirm the order of bail recorded by a member of the trial Court in favour of accused persons and disagree with the other member of the Court in whose wisdom the accused persons are not entitled to the concession of bail. The principle which has been referred' to by the learned Chief Justice of the Shariat Court is not applicable in bail matters. The correct legal proposition is that while recording judicial verdict in criminal cases if any fact in the wisdom of the Court has two plausible explanations, the one favourable to the accused person must be preferred.

The question of bail is to be decided in the light of F.I.R. statement of witnesses recorded by the police under section 161, Criminal Procedure Code and the other material collected in support of the charges levelled against the accused persons. In the present case the bail order passed by the District Qazi was confirmed by the Shariat Court in an arbitrary and unguided manner, therefore, the same is set aside. Even though we have got very vast powers and can resolve the question of bail ourselves, however, in the light of the request made by the learned counsel for the parties it appears appropriate to allow the Shariat Court to decide the reference sent by the District Court of Criminal Jurisdiction, Kotli first in the light of the facts of the case. Both the cases are remanded for fresh decision to the leaned Judge of the Shariat Court Camp Kotli. The parties are directed to appear before him on 13‑5‑2003. In the meantime the record of both the appeals shall be sent back to the Shariat Court Camp Kotli so that it may be placed before the learned Judge on the aforesaid date for further necessary proceedings/orders.

H.B.T./32/SC (AJ&K) Cases remanded.