MUHAMMAD IDREES KIANI Versus THE STATE

CHAUDHARY MUHAMMAD TAJ.‑‑‑ This appeal has been filed against the judgment passed by the Shariat Court of Azad Jammu and Kashmir on 15‑7‑2003 whereby .the appeal filed against the order of the Additional District Court of Criminal Jurisdiction, Muzaffarabad was dismissed.

2. The facts necessary for the disposal of this appeal are that two F.I.Rs. bearing No.55 of 2003 and No.56 of 2003 were lodged by the appellant‑complainant and Malik Riaz complainant (since dead) at Muzaffarabad Police Station in respect of the occurrence which took place on 11‑2‑2003 at about 12‑45 p.m.

3. According to the complaint lodged by the appellant it was stated that there was a dispute between Malik and Raja "Baradaries". On the day of occurrence Malik Ibrar son of Badar Zaman resident of Chehla in the company of Abid Abbasi had gone to Patika to purchase mutton. At about 12‑45 p.m. when they returned from Patika and reached near Naseer Hotel, accused Malik Riaz, Malik Jabbar sons of Malik Muzaffar, Malik Yasir son of Muhammad Akram, Kalim son of Raja Aslam, Faisal son of Muhammad Afzal residents of Bandi were standing in their way and Malik Ibrar fell them down from motorcycle and started beatings. On this Anis Kiani, the brother of the complainant, tried to release them from the accused. Malik Riaz with the intention to kill fired at him which hit at his head. At this moment Raja Adeeb son of Raja Afzal, Raja Munir son of Pir Khan, Muhammad Siddique son of Mir Zaman, Raja Basharat son of Muhammad Afzal, Muhammad Iftikhar son of Muzaffar, Raja Shakil son of Afzal, Altaf, Imtiaz, Nafees, Raja Asif and Mazhar son of Mir Ali came there and attacked with pistol, kalashnikov and Dandas. The occurrence was witnessed by Altaf Hussain, Mehmood Kiani and others.

4. Another F.I.R. was lodged by injured Malik Riaz (since dead) that he is resident of Chehla. A quarrel occurred between the complainant, Mazhar and Ibrar, sons of Badar Zaman for which a compromise was in process. On 11‑2‑2003 the complainant was in Chehla Bandi Bazar. Ibrar son of Badar Zaman arrived there and a quarrel started. Meanwhile Anis, Idrees sons of Ali Asghar Kiani, Tanveer son of Nazir Kiani and Tauqeer attacked on him. Anis with the intention to kill made two fires which hit at the leg, right thigh and‑abdomen. It was further stated that the complainant received second bullet injury when he was to ride a vehicle. The occurrence was witnessed by Zia‑ur‑Rehman Abbasi, Malik Rafique and others.

5. After investigation two challans in consequence of two cross F.I.Rs. lodged by the appellant herein and Malik Riaz are stated to have been filed before the competent Court of jurisdiction. The appellant complainant (F.I.R. No.55 of 2003) initially applied for anticipatory bail which was provisionally granted. However, the concession was subsequently withdrawn. The appellant thereafter filed after arrest bail application which was disallowed and a further appeal for his bail before the Shariat Court was also dismissed. Hence this appeal.

6. Kh. Shahad Ahmad, the learned counsel for the appellant, raised following points in support of the appeal:‑‑

(i) That there is no prima facie case existed against the appellant. The matter required further probe in view of the contradictory stand taken by the prosecution but the trial Court as well as the Shariat Court failed to appreciate the law keeping in view the facts as such the orders passed by the said Courts were not maintainable;

(ii) that the appellant‑complainant lodged First Information Report in respect of the occurrence where his real brother Anis was attacked by accused Malik Riaz and others. The said Malik Riaz with the intention to kill his brother fired at him which hit his head and thus, injured him dangerously who since the day of occurrence is in comma;

(iii) that the cross‑F.I.R. was lodged by Malik Riaz (since dead) who has involved appellant., his brother Anis and others but he has not alleged any firing and attributed to have caused any injury to him by the appellant but the fire‑arm shots were attributed to injured Anis, the brother of the appellant, therefore, the appellant was entitled to be released on bail as his case requires further probe;

(iv) that both the versions lodged with the police by the appellant and said Malik Riaz after investigation were challaned before the competent Court of jurisdiction. It shows that the opposite party was aggressor: Alternatively it is yet to be ascertained, as to which of the parties was aggressor. The Investigating Agency could not determine as to who was aggressor therefore, both the challans were submitted. In this way the appellant's case was of further inquiry which was not appreciated by the Courts below in its true perspective; and

(v) that all other accused have been granted bail either anticipatory or after arrest therefore, keeping in view the rule of consistency the appellant could not be refused the grant of bail. The Courts below have exercised discretions against the accepted rules of law established by the superior Courts. The learned counsel referred to the cases reported as Abdul Jabbar v. State 1998 PCr.LJ 1423 and Nazir Ahmed Khan and 3 others v. State PLD 1998 SC (AJ&K) 43 in support of his assertions.

7. Raja Ibrar Hussain, the learned Advocate‑General, representing the State and Raja Muhammad Hanif Khan, the learned counsel for the complainant, while defending the order passed by the. Shariat Court argued in the following manner:‑‑

(i) That a strong prima facie case existed against the appellant on the basis of direct evidence supported by the corroboratory evidence. The learned counsel contended that the appellant was specifically nominated in the F.I.R. promptly lodged with the police. The impartial witnesses supported the prosecution story. The recovery made at the instance of the accused‑appellant corroborated the prosecution version. It was also maintained that the appellant also fired at the deceased complainant which in fact was the cause of his death and the fact is borne by the statement of the complainant recorded under section 161, Cr.P.C. on the same day when F.I.R. was lodged. The eye witnesses also supported the. prosecution, version, therefore, at this initial stage of the case when the evidence is yet to come before the trial Court the accused‑appellant is not entitled for grant of bail;

(ii) that on the basis of a prima facie case existed against the appellant the Courts below declined the bail to the appellant This Court ordinarily does not interfere in the orders passed by the Shariat Court unless a glaring illegality is noticed which is not found in the present case; and

(iii) that mere filing the counter‑F.I.R. or even a counter‑challan would not entitle the accused to be released on bail. The surroundings and circumstances of the present case do not provide any defence to the accused‑appellant particularly when he is a principal accused who was responsible for a fatal shot to deceased. Raja Muhammad Hanif Khan also added that alternatively the appellant was a member of unlawful assembly who came alongwith other members at the place of occurrence, attacked the deceased‑complainant and thus, was equally liable for the murder of said Malik Riaz, therefore, he could not be held entitled to bail. The learned counsel referred to the following authorities in support of his assertions:‑‑

(1) Karamat Hussain v. Faraqat Hussain PLD 1987 SC (AJ&K) 27, (2) Ghulam 1Vabi and another v. The State 1986 PCr.LJ 1736, (3) Hassan Shah and another v. The State 1984 PCr.LJ 1840, (4) Muhammad Sharif v. The State 1985 PCr.LJ 1435; Pannu Khan v. The State 1994 SCR 30 and Arshad Mehmood and another v. The State and another 1994 SCR 260.

8. We have heard the learned counsel for the parties and also gone through the record. It is not disputed between the parties that two F.I.Rs., one on behalf of deceased Malik Riaz and the other by the appellant herein were lodged with the police in respect of the occurrence. However, respective parties stated their own version on which the investigation was made. The ‑ Investigating Agency after investigation challaned both the cases before the trial Court. It shows that the Investigating Agency could not conclusively arrive at a certain conclusion that version of which part was correct and who was aggressor, therefore, they submitted challans in both the cases which could be called cross‑cases. It is though very unfortunate that the police has failed to perform their duty which required the determination as to which of the party was at fault or aggressor and was liable to be challaned before the competent Court of jurisdiction irrespective of the fact whether any murder was committed on one side or the other or number of injuries caused. Be as it may, the fact remains that two challans have been filed in the Court. The appellant was arrested in the case registered on the complaint of Mr. Malik Riaz, deceased -complainant, under sections 324, 147, 148, 149 and 302, A.P.C. According to the First Information Report lodged by the said complainant before the Deputy Superintendent of Police, who reached at the spot it transpired, that the complainant though nominated the appellant as one of the accused but none of the fire‑arm injuries was attributed to him. He attributed all the two shots fired at him to appellant's brother Anis Kiani. He did not make even vague allegation of firing to the appellant. The aforesaid statement was reduced into writing and thereafter the same was registered as First Information Report. The prosecution has emphasized upon the statement of the complainant made under section 161, Cr.P.C. where it was alleged `that he received three fire‑arm shots and the third one was attributed to the appellant. The aforesaid part of the statement, according to the prosecution, is further supported by the other eye‑witnesses revolver is also alleged to have recovered at the instance of accused‑appellant.

9. While dealing a bail matter of an accused involved in non- bailable offence if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life he shall not 'be released on bail unless the case is covered by any of the provisos of subsection (1) of section 497, Cr.P.C. but if it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non‑bailable offence but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under subsection (2) of section 497, Cr.P.C. It is important to be considered that the Court while dealing with the question of bail can assess the incriminating material and the evidence brought by the prosecution as there are no restrictions on Court's power to assess the evidentiary value of the material placed before it. Though the Court is not called upon to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence; it has nevertheless, to see whether there exist reasonable grounds upon which its belief can be founded.

10. In the present case the important question to be resolved is whether in a case where two cross‑cases registered on the complaint of respective parties challaned before the Court on the basis of evidence proposed, what would be the law in respect of bail. By now it is settled law that where there are two counter‑versions or two counter‑challans and it is not ascertained as to which of the party is aggressor or at fault the matter is of further inquiry and the accused become entitled to grant of bail under subsection (2) of section 497, Cr.P.C. However, mere filing the counter‑version or a counter‑challan by the prosecution would not justify allowing the bail to accused person in all cases. Every case has to be decided in view of its peculiar circumstances keeping in view the facts involved in both the cases. Reliance in this regard is also placed on a case reported as Tahir Sarwar v. Muhammad Qasim and others 1992 SCR 279 where it was held as under:‑‑‑

"We have given our due consideration to the arguments raised at the Bar. It may be observed that this Court has repeatedly held that the discretion exercised by the Courts below in bail matters would be interfered with only if it is shown that the order passed by the Court below is perverse or is violative of settled principles of law on the subject. In the instant case the Courts below have exercised discretion after considering the prose and cons of the prosecution case. There are two counter‑challans filed by the prosecution: One of the members of the accused party is also injured as a result of fire from a gun. The argument that the gun shot injury sustained by a member of the accused party was caused by the firing of their own party, may, or may not be correct but the fact remains that the case is essentially one of `further inquiry' on the point as to which of the parties was aggressor. It is correct that mere two counter‑versions, or for that matter, two counter‑challans, would not justify allowing the accused persons bail in all the cases; every case has to be decided in view of its peculiar circumstances. However, if the facts of the case lead to the conclusion that the case falls within the ambit of one of further inquiry, as stipulated under section 497, Cr.P.C. the accused may be released on bail, despite the fact that the charge against him carries the punishment of death or transportation for life. In the instant case the Court below have considered all the relevant factors and have come to the conclusion that the case was one of `further inquiry' and, thus, the accused‑respondent's were found entitled to concession of bail. We find no fault in the discretion exercised by the Courts below and there is hardly any ground justifying to hold that the discretion was not properly exercised in the matter by the Courts below. "

Similar proposition was resolved by the Lahore High Court in a case reported as Muhammad Sharif v. The State 1981 PCr.LJ 704 at page 705 in the following words:‑‑

"6. The petitioner sustained two head injuries and the complainant party in the instant case has been summoned as an accused party vide Annexure `D' on the record. These factors provide a ground to hold that there is prima facie probability than the counter‑version has also some truth in it. At this stage it cannot be said with a degree of certitude as to which side is aggressor, therefore, it is a fit case of further inquiry as envisaged by subsection (2) of section 497, Cr.P.C. Reliance is placed on Rehmat Ali v. Hussain 1978 SCMR 195, Muhammad Shafi v. Hakam Ali 1978 SCMR 346 and Fazal Muhammad v. Ali Ahmad 1976 SCMR 391. The petitioner is, therefore, admitted to bail."

The case of Azmat v. The State 1981 PCr.LJ 1158 can also be referred in support of the proposition where at page 1160 it was held as under: ‑‑

"5. In this view of the matter, it is case of counter‑versions, and the Investigating Agency itself has accepted the same, by the challenging both the parties in counter‑versions, therefore, the case of the petitioners is one of further inquiry as, presently, it is difficult to say as to which party is the aggressor, and in this regard I would refer to Khalil-ur‑Rehman v. The State 1979 SCMR 168 and Fazal Muhammad, v. Ali Ahmad and 3 others 1976 SCIVIR 159 of the same volume."

11. Raja Muhammad Hanif Khan,, the learned counsel for the complainant, on the strength of the authorities referred to by him, laid a stress that according to the submissions made by the learned counsel for the appellant, the accused‑appellant is a member of unlawful assembly against whom a prima facie case stands established, is not entitled to the concession of bail at this stage particularly when both the Courts, the trial Court as well as the Shariat Court, declined bail to him. It may be stated that the, case‑law referred to by the learned counsel for the complainant in view of the facts involved in the present case is not applicable to the case in hand because of the distinct facts. It would suffice to mention that none of the authorities cited by the learned counsel dealt with the point of counter‑version or a counter‑case. It may also be mentioned that after going through the citations the point involved in the present case with regard to the contradiction noted in First Information Report and statement recorded under section 16.1, Cr.P.C. of the complainant and other prosecution witnesses is not found. The point certainly attains importance for the reason that the First Information Report was lodged by Malik Riaz, deceased‑complainant which is also signed by him and the statements under section 161, Cr.P.C. were recorded by the police.

12. After a careful consideration we are of the view that the matter requires further inquiry for the following reasons:‑‑

(i) That according to the F.I.R. no allegation of firing at the complainant is alleged to the accused‑appellant. The allegation of firing was attributed only to his brother Anis Kiani;

(ii) that the prosecution version that the appellant according to the statement of the complainant recorded under section 161, Cr.P.C. was attributed to have fired at the person of the complainant which hit him .was an improved version of the prosecution. Similar, is the case of eye‑witnesses who made the statement 'to this fact;

(iii) that the version put forth by the appellant though F.I.R. lodged with the police after investigation was challaned before the competent Court of jurisdiction which shows a substance in the counter‑version resting on direct, medical and f, recovery evidence. It would be relevant to mention that his brother, according to his version, was fired at by the complainant with fire‑arm which hit his head who since then is in comma;

(iv) that in the circumstances when according to the investigation it is yet to be determined as to which of the party is aggressor or is at fault the matter of bail is of further probe; and

(v) that all other accused except Anis Kiani who is yet to be arrested in view of his dangerous condition by receiving fire‑arm injuries have been granted to released on bail.

In view of the above discussions it is held that the order passed, by the Shariat Court was not a proper exercise of jurisdiction and against the law as such is not maintainable and is set aside by accepting the appeal. The appellant shall be released provided he executes a bail bond; in the sum of rupees five lac with two sureties and a personal bond in the like amount to the satisfaction of the Deputy Registrar or the Registrar of IC this Court if not required in any other case or offence.

H.B.T./79/SC(AJ&K): Bail granted.