MUSHARRAF HUSSAIN Versus MUSHTAQ AHMAD and another

CHAUDHARY MUHAMMAD TAJ, J. ‑‑‑ This appeal has been filed to challenge the judgment passed by the Shariat Court on 20‑10‑2003 whereby a criminal revision petition was dismissed and the bail was refused to the appellant.

2. The facts are that a case under sections 324, 147, 148, 149, 337‑A and 337‑F, A.P.C. was registered at Police Station Barnala on a complaint made by respondent No. 1 against the appellant and other accused persons (not before the Court). After investigation the offence of section 302, A.P.C. was also added.

3. The appellant filed a bail application in the District Court of Criminal Jurisdiction, Bhimber, which was dismissed and a revision filed with the Shariat Court also met the same fate. Hence, this appeal.

3‑A. Ch. Muhammad Azam Khan, the learned counsel for the appellant, raised following points in support of the appeal:‑‑

(i) that there is no prima facie case against the accused‑appellant;

(ii) that a sudden fight occurred between the parties where the appellant and other accused also sustained injuries which were attributed to the complainant and the deceased. A report to this effect was also made but the police did not register a case. However the fact remains that the complainant party was aggressor or at least there is a doubt as to who is the aggressor;

(iii) that there is no pre‑meditation. The occurrence took place at a spur of moment, therefore, the case is of further inquiry;

(iv) that the features suggest that the prosecution case is full of doubts and did not take place in the manner alleged, therefore, the benefit of doubt goes to the appellant; and

(v) that all other accused persons have been granted bail as such the appellant is also entitled to the concession of bail on the same facts. The learned counsel referred to a case reported as Muhammad Ajmal v. Muhammad Naeem and others 2001 PCr.LJ 1073 in support of his assertions.

4. Raja Mazhar Iqbal, the learned counsel for the respondent, assisted by Sardar Abdul Razzik Khan, the learned Additional Advocate‑General, while controverting the arguments addressed on behalf of the appellant argued in the following manner:‑‑ .

(i) that the appellant is the principal accused who is responsible for inflicting a fatal injury on the head of the deceased which was sufficient in ordinary course to cause death. The appellant was carrying the lethal weapon who inflicted injury with intention and knowledge to kill;

(ii) that the blood‑stained earth was recovered from the shop of the deceased which shows the corroboration of the prosecution story that the appellant alongwith other accused persons came in his shop and attacked which resulted in the death of one person and inflicting injuries on the others:

(iii) that the evidence in the case is likely to close within a short period and the case shall be ready for disposal on merits, and

(iv) that all the Courts below after careful consideration proceeded to disallow the concession of bail to the accused‑appellant. The order by the Shariat Court was based on reasons as such cannot be interfered with. The learned counsel referred to the following authorities in support of his assertions:‑

(1) Muhammad Hanif and another v. The State PLD 1989 SC (AJ&K) 30; (2) Muhammad Anwar v. The State 1999 SCR 158 and (3) Muhammad Amin Hussain v. The State 1999 SCR 313.

5. We have heard the learned counsel for the parties and also gone through the record including the police diaries. According to the prosecution story, a report was lodged with the Barnala Police on 26‑7‑2002 by complainant Mushtaq Ahmad, the injured witness. He was also accompanied by Abdul Majeed son of Rehm Dad who was also injured and later on succumbed to the injuries. The report disclosed that at 8‑30 a.m. the complainant was sitting in the shop of his brother‑in‑law when Muhammad Sadiq son of Chanan Din, Muhammad Sadiq son of Fazal Ellahi, Shakil son of Muhammad Sadiq, Musharaf Hussain son of Muhammad Sadiq and two sons of Haji Muhammad Sadiq came there and started abusing. Musharaf Hussain, the son of Muhammad Sadiq inflicted injury with the iron rod which he collected from the welding shop on his head. Haji Muhammad Sadiq also inflicted the injury on the head of the complainant with Danda. The occurrence was witnessed by Muhammad Rafique son of Rehm Dad and Mazhar Iqbal son of Abdullah. After investigation the challan was presented to the District Court of Criminal Jurisdiction, Bhimber, where the prosecution evidence except two witnesses has already been recorded.

6. The appellant applied for his bail which was declined by the trial Court and a 'revision filed with the Shariat Court was also dismissed. However, on an appeal before this Court the case was remanded to the Shariat Court for fresh decision in accordance with law. Again a revision petition was dismissed. Hence, this appeal. The learned counsel for the appellant laid a stress that the case is of further probe as, according to him, the accused‑appellant was also injured in the incident alongwith other accused persons. The nature of the injuries sustained by the accused party is graver than the injures claimed on the persons of the complainant party. It was also asserted that there was no premeditation as the appellant is not alleged to have come with any weapon but it is attributed that he collected the iron rod from the welding shop apart from the fact that a single injury is attributed.

7. After perusing the record, as we are not supposed to decide the matter in vacuum though a deep scrutiny and detailed merits of the case are not required to be gone into, we noticed that the accused‑appellant has not taken the special pleadings of self‑defence in his statement recorded under section 242,Cr.P.C. It is not necessary that an accused person cannot claim the benefit of self‑defence without pleading the same at the time of his statement recorded under section 242, Cr.P.C. The accused can come forward with special pleadings of self‑defence at the initial stage of his statement recorded under section 242, Cr.P.C. or he can also take the benefit of self‑defence arising out of the features of the prosecution evidence supporting his point of view. It is also important to mention that the accused person, if he is able to create a doubt as to which party was aggressor in the circumstances of 'the case, can avail the benefit of self‑defence as the benefit of doubt even at the stage of bail is permissible.

8. In the present case the prosecution has cited fourteen witnesses including three eye‑witnesses in addition to the statement of injured Abdul Majeed who later on succumbed to the injuries recorded under section 161, Cr.P.C. The prosecution case, prima facie, is also supported by other incriminating material which includes the recovery witnesses, medical evidence etc. On the other side the defence has relied upon the medical certificates issued by the doctor on their examination sent through police. It was claimed by them that the accused‑appellant alongwith other accused were injured by the complainant party during the course of fight. It was also claimed that it is an admitted position that they were injured during the incident. After going through the record it is found that the police got them examined by the doctor but it is not found through any record that when they were injured whether during the incident or before or after the incident. The doctor has not given the date and time of their sustaining the injuries. As said earlier that the appellant has not pleaded the self‑defence in his statement recorded under section 242, Cr.P.C. The learned counsel did not rely upon thel features of prosecution evidence supporting his point of view as he has failed to refer any piece of evidence though the prosecution evidence is near to close.

9. In view of the above discussion, we at this stage of the case when the prosecution case is likely to conclude and keeping in view the circumstances discussed above, cannot hold that the accused‑appellant acted in self‑defence or they suffered injuries during the course of incident lest it may not prejudice the case of either party. Therefore, we have no reasons to differ with the finding recorded by the Shariat Court. We, therefore, dismiss the appeal filed by the appellant. The case‑law referred to by the learned counsel in view of the distinct facts is not applicable as such is not discussed.

N.H.Q/92/SC(AJ&K) Bail refused.