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Petitioner: MUHAMMAD KHURSHID and 3 others VS Respondent: THE STATE
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Raja Muhammad Akram Khan Title: MUHAMMAD KHURSHID and 3 others vs THE STATE Case No.: Criminal Miscellaneous No, 9 of 1984 Date of Judgment:1984-12-14 Reported As: 1985 P Cr. L J 691 Result: Petition dismissed
JUDGMENT
JUDGMENT ' This is a Revision Petition directed against the order of the learned .District Court of Criminal Jurisdiction, Kotli, dated 23-10-1984 whereby bail was refused to the petitioners Muhammad Khurshid, Muhammad lqbal, Muhammad Farooq and Amesh Gul who are involved in a murder case under section 5 of the Islamic Penal Laws Act of 1974 read with sections 302/34 of the P.C. 2. This revision petition arises out of the following facts: (i) Zakar Hussain son of Muhammad Rafique resident of refugee Colony Fagosh, Tehsil Kotli lodged an F.I.R. In the Police Station, Kotli on 6-8-1984 at 10.30 a.m. That on 6-8-1984 at about 8.30 a.m. He saw Muhammad Farooq, Muhammad lqbal, Amesh Gul and Muhammad Khurshid of Fagosh who killed Shaukat Ali son of Muhammad Yaqoob, a Refugee, Resident of Thapla (Fagosh Colony). Hamida Begum and -Muhammad Rafique were crying: "they are killing; they are killing". When he reached on the spot, which is a 'Katcha' road passing from survey No,2238 (according to the site plan), he saw the accused persons. He wanted to release Shaukat Ali from the clutches of the accused, when Muhammad Farooq (the main accused) stabbed Shaukat Ali from behind while the other three accused persons (petitioners before me) had caught hold of the deceased (Shaukat Ali). On receiving this fatal wound, the deceased fell down and became unconscious while the four accused persons fled away. When the informant raised an alarm some people from Fagosh Colony and Thapla Colony came on the spot. Shaukat Ali (deceased) was laid on a cot and taken to Kotli for medical treatment but he succumbed to the fatal injury near Tahli Colony. This occurrence was witnessed by the informant Zakar Hussain, Mst. Hameeda Begum, Muhammad Akram son of Muhammad Khan resident of Fagosh Colony and Muhammad Majeed son of Bagh Ali; resident of
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Thapla Colony with their own eyes. The motive for murder, according to the informant, was enmity due to a previous election. 3. The police started investigation after registering a case under section 5 of the Islamic Penal Laws Act read with section 302/34, P.C. The distance from Kotli Police Station to Fagosh is about 8 miles and Fagosh is situated to the south from the police station Kotli. 4. The Police, after completion of the investigation, put up a challan against Farooq son of Muhammad Akram, Muhammad lqbal son of Muhammad Yusuf, Amesh Gul (or Hamesh Gul) son of Anar Gul resident of Fagosh and Khurshid son of Habib resident of Maneel under section 5 of the Islamic Penal Laws Act read with section 302/34, P.C. On 20-9-1984. According to the list of witnesses, it appears that there are only 14 prosecution witnesses out of whom four prosecution witnesses are stated to be eye-witnesses. 5. This case is in its initial stage and has been fixed for recording the statements of the accused persons under section 242, Cr.P.C. 6. The accused persons moved an application for their bail before the learned District Court of Criminal Jurisdiction, Kotli on 15-9-1984. After hearing the arguments in the bail matter, the learned Members of the District Court of Criminal Jurisdiction, Kotli disallowed bail to the four accused persons. Thus, the trial Court has exercised its discretion in refusing bail to the accused persons and has given reasons in support of the said order. 7. Dissatisfied with the order of the learned District Court of Criminal Jurisdiction, Kotli, dated 23-10- 1984, all the four accused persons have come up in revision petition before the Shariat Court. 8. Raja Muhammad Aslam Khan, the learned counsel for the petitioners (accused persons) has not pressed for the bail of the main accused, Muhammad Farooq and he has vehemently argued to release the three accused persons Muhammad lqbal, Muhammad Khurshid and Amesh Gul on bail. He has urged the following points:- (a) That Zakar Hussain, the informant, has lodged an F.I.R. But the version given in the F.I.R. Does not tally with his statement under section 161, Cr.P.C. For instance, in the F.I.R., there is no explanation as to how these three accused persons had caught hold of the deceased but in his statement under section 161, Cr.P.C., an explanation has been given by him. The explanation is that Muhammad Khurshid had caught hold of the deceased by neck from the front side. Muhammad lqbal had caught hold of the deceased by left arm from the left side, and Amesh Gul had caught hold of the deceased by his right arm from the right side. While these three accused persons had caught hold of the deceased, Muhammad Farooq stabbed the deceased from behind; (b) That it is unreasonable and improbable that one man was fixed up by three accused persons and the fourth accused person stabbed him from behind; (c) That no reasonable grounds exist in this case to connect these three accused persons with the offence of murder; (d) That the manner and method of catching hold of the deceased by the accused persons is highly unbelievable in the light of the normal human conduct; (e) That according to the prosecution version, Muhammad Khurshid had caught hold of the accused from his neck from the front side but there is no sign or bruise etc. On the neck of the deceased. Moreover, Muhammad Khurshid accused is a short statured man and as such hecould not catch hold of Shaukat Ali (deceased) who was a six-footer stout young man of 26 years; (f) That naturally when there are four persons on one side and a stout young man on the other side, there should be some injuries on the persons of the accused persons but there are no such injuries on the persons of the accused which fact negatives the prosecution story; (g) That the case of vicarious liability needs "further inquiry" and as such these three accused persons, to whom no fatal injury or even a simple injury has been attributed in the F.I.R., are entitled
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to bail according to law and various authorities of the Superior Courts of Pakistan and Azad Jammu and Kashmir; (h) That the prosecution has listed four eye-witnesses in this case but none of them says whether the deceased was coming towards Kotli or going towards his home and none is able to show the exact position of the accused persons where they waylaid the deceased. If it is true that the accused persons laid an ambush for the murder of Shaukat Ali (deceased), the exact place of ambush should have been mentioned or shown in the site plan and in the statements of the prosecution witnesses recorded under section 161, Cr.P.C.; and (i) That these three accused persons (petitioners) should be enlarged on bail on the ground that they did not inflict any fatal injury or even any simple injury to the deceased Shaukat Ali. The learned counsel for the petitioners has prayed that the tentative assessment of the evidence may be made at this stage and bail allowed to the accused persons (petitioners) because the learned District Court of Criminal Jurisdiction has failed to exercise its discretion according to the well- known principles of the law of bail. 9. Raja Muhammad Aslam Khan, the learned counsel for the petitioners (accused persons), has cited the following authorities in support of his points listed above. ' 1976 P Cr. L J 758, 1095; ' 1978 SCMR 7, 357; ' 1979 P Cr. L J 45; ' 1981 P Cr. L J 685; ' 1981 P Cr. L J 485; ' 1981 P Cr. L J 1102; ' PLD 1983 SC (AJ&K) 8; ' 1983 PCrLJ 2019; ' 1984 P Cr. L J 1647; ' 1983 P Cr. L J 1426; ' 1983 P Cr. L J 1027; ' 1983 P Cr. L J 745. ' Unreported case of Muhammad Arif v. The State AJK Shariat Court. 10. As against these points, the learned Additional Advocate-General, Mr. Muhammad Nisar Mirza, has stressed the following points:- (a) That no detailed scrutiny of the prosecution evidence can be made at this stage and only the F .1. R . The statements under section 161, Cr.P.C., the Medical Report, the recoveries and the site plan can be gone into at this bail stage. Of course, the Court can make a tentative assessment of the evidence at this stage for the purpose of deciding the bail matter but in this case we have got a prima facie strong case against the accused persons. The prosecution has got four reliable and truthful eyewitnesses in this case of murder. Therefore, the prosecution case is, prima facie, made out against all the four accused persons; (b) That there is no difference between the version given in the F.I.R. And the account given by the four eye-witnesses in their statement under section 161, Cr.P.C.; (c) That although the prosecution does not need any corroborating material in the presence of reliable eye-witnesses but if some corroboration is needed at all, that is afforded by motive, the post-mortem report, recoveries, the Chemical Examiner's Report and some other material in this case; (d) That the occurrence of murder took place in the broad daylight on 6-8-1984 at 8.30 a.m. In a Katcha road and there is no doubt about the identification of the accused persons who are known to the eye-witnesses by name and face because all of them belong to the village of Barali, Fagosh, Thapla and Maneel are the various Mohras or parts of Barali village;
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(e) That the manner of catching hold of the deceased was absolutely natural and probable because the deceased Shaukat Ali was a stout young man according to the Inquest Report prepared by the police on 6-8-1984. In the Inquest Report the following words have been used:- {{URDU TEXT}} ' Moreover, Dr. Mushtaq Jaral, who conducted the post-mortem (autopsy) on the dead body of Shaukat Ali, has also mentioned that the deceased was a "young stout well-nourished man". The deceased was a six feet tall man; (f) That one man is sufficient to kill a person with revolver or pistol or a gun or a rifle but when a well-built and stout young man of 26 years. Like Shaukat Ali (deceased) is to be killed by knife it requires four men to murder him because, as the prosecution story goes, the deceased was in fact encircled by all the four accused persons. Muhammad Khurshid caught hold of the deceased by neck while Muhammad lqbal and Gul caught hold the deceased by arms from left and right and thus, Mr. Farooq was able to stab him from behind. It is in prosecution evidence that when there was a fight during the Election held somewhere in 1983, Shaukat All deceased had snatched a revolver or a pistol from the father of Muhammad Farooq accused wanted to take a revenge of that incident; (g) That the accused persons are Rajputs while Amesh Gul is a Pathan and all of them were smarting for vengeance. They hatched a conspiracy to kill Shaukat All deceased motivated by vendetta; (h) That the three petitioners, whose bail is sought for, participated fully in the offence of murder of Shaukat All (deceased) and, therefore, under section 34 they shared the common intention to murder the unfortunate victim. Therefore, it is not the case of mere proverbial Lalkara or mer standing nearby the deceased. So, all the four accused persons are liable to be punished for the offence of murder; (i) That there are reasonable grounds to believe that all the four accused persons have taken full part in the offence, and, therefore, they are not entitled to bail because the offence in which they are involved is punishable with death or Qisas or life imprisonment. The bail is refused as a general rule to such persons; (j) That in bail matters, primarily the discretion to grant or refuse bail vests with the trial Court. In this non-bailable case, the trial Court has exercised its discretion with due care and caution considering the facts and the circumstances of this peculiar case. So, the reasonable grounds exist in this case to connect the accused persons with the offence of murder in this case. The trial Court has applied its mind properly to the facts of this case and has refused bail to the petitioners according to the well-known principles of the law of bail. Therefore, the Shariat Court cannot interfere with the discretion exercised by the trial Court, because no 'case of arbitrary or capricious exercise of discretion has been made out in this case; and (k) That the prosecution story is natural. The informant and the four eye-witnesses have not exaggerated or misstated the facts. They could implicate even the father of the accused Farooq and make the number of the accused persons five, but being truthful, they have not implicated any innocent person. 11. The learned Additional Advocate-General has cited the following authorities before me:- ' ' PLD 1967 SC 340; 1977 P Cr. L J 129; ' 1978 P Cr. L J 8; 1978 P Cr. 1 J 863; 1979 SC ' M R 65; 1981 SCMR 820; 1983 P Cr. L J 318 ; 1983 P Cr. L J 1965; 1984 P Cr. L J 781. ' Unreported case. Cr. Miscellaneous No, 219 of 1983, decided on 4-2-1984 by the A J & K Shariat Court titled 'Noor Muhammad v. The State". 12. I have duly considered the points agitated and argued at the Bar and have also carefully perused the relevant record.
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13. Most of the points raised by the learned counsel for the petitioners touch the merits of the case and, therefore, I do not feel advised to say anything about the merits of the case. It is correct that the Court A can make a tentative assessment of evidence at the stage of bail but I would like to refrain from making even a tentative assessment of the evidence so that my view may not prejudice the trial Court. 14. At this stage, I can only look into the F.I.R., the statements of four eye-witnesses recorded under section 161, Cr.P.C. Medical report, certain recoveries and the judgment of the learned District Court of Criminal Jurisdiction, Kotli whereby the bail has been refused to the petitioners. 15. In this respect, I am fortified by the views of our own Supreme Court expressed in para. 6 of the case of Muhammad Bashir v. The State PLD 1983 (SC) A J K 8, which reads:- "Before dealing with the points listed above, it would be proper to state that normally the Supreme Court does not interfere with the discretion exercised by the Courts below unless the discretion is shown to be capricious or against the interest of justice or established principles of administration of criminal justice. "It is also to be noted that in deciding bail matters ordinarily the merits of the case are not gone into as held in PLD 1961 Lah. 317 and PLD 1966 SC 340. The rule laid down seems to be quite sound that superior Courts rarely enter into the merits of the case for purposes of granting or refusing the bail, because the appreciation of the evidence is the exclusive function of the trial Court. In view of this we refrain from going into the merits of the case which are listed above". 20. In the case of Chiragh Din and others v. The State PLD 1967 SC 340, it was observed:- "The case in PLD 1966 SC 658 is not to be read as laying down that a Lalkara is never to be regarded as a sufficient overt act, if proved, to establish abetment. That question must be decided, by the trial Court on an appreciation of all the facts, including the degree of interest in the crime possessed by the person who shouted the Lalkara, and the part he played in the background of the affair.. ' There are circumstances in which mere presence at the scene of the crime is a sufficient overt act to support a conviction, by the application of section 114, P.P.C. Shouting of a Lalkara may, in such circumstances, have effect as a further overt act of abetment (342) A & B. ' The same authority lays down at p. 342 C that the appreciation of evidence and drawing of conclusions therefrom is exclusively the function of the trial Court and the same cannot be anticipated by a superior Court dealing with grant of bail pending trial." 21. In the case of Nazar Muhammad v. The State PLD 1978 SC 236, it was observed:- "We may observe that every case of criminal nature proceeds on its own facts and circumstances and a rule of universal application cannot be deduced from the decision of any particular case (237) A ' The Courts on the basis of the material placed before them, such as F.I.R. Statements recorded under section 161, Cr.P.C. Are fully justified, even at bail stage, to go into the question whether a case of constructive liability is made out. This, however, is subject to the rule of caution laid down in Manzoor v. State PLD 1972 SC 81 (238)C. 22. It was reiterated in PLD 1983 SC (A J a K) 8 in para. 6 at p. 10-A that:- "It is also to be noted that in deciding bail matters ordinarily the merits of the case are not gone into as held in PLD 1961 Lah. 713 and PLD 1966 SC 390. The rule laid down seems to be quite sound that the superior Courts rarely enter into the merits of the case for purposes of granting or refusing the bail, because the appreciation of the evidence is the exclusive function of the trial Court. In view of this we refrain from going into the merits of the case." 23. The general principles governing grant or refusal of bail in criminal matters are given in many authorities but I would like to mention only:-
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' Sultan Muhammad and another v. The State 1981 P Cr. L J 685 wherein Raja Muhammad Khurshid Khan, C.J. Of our Supreme Court observed in pares. 8 to 12 (pages 688 and 689):- "(8) To appreciate the points argued it will be useful to know the principles governing grant or refusal of bail in criminal matters. Bail, in non-bailable cases, is a matter within the discretion of the Court which is to be exercised with due care and caution on the facts and circumstances of each case. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to confine people in Jail merely on the allegation that they have committed offence punishable with death or transportation unless reasonable grounds appear to exist to disclose their complicity in such offences. No doubt, in offences punishable with death or transportation for life, bail is not justified if there exist reasonable grounds for believing that the person accused has committed such an offence. The onus, however, is on prosecution to disclose those reasonable grounds and the Courts have to examine the data available in the case to find out whether such reasonable grounds exist to connect the accused persons with the crime alleged against them. To ascertain as to whether reasonable grounds exist to connect the accused with the crime charged, the report of the police, the nature and credentials of the evidence which the prosecution proposes to look in the case and all other relevant circumstances surrounding the occurrence are to be looked into. The determination of the point as to whether bail can be allowed to a person accused of an offence punishable with death or transportation for life will depend on the facts of each case. No doubt, it is not for the Courts, at the stage of bail, to evaluate the evidence in minutest details but they are required to consider as to whether; upon material on record, such grounds for belief exist or not. It is also law that in such cases if the Sessions Judge or the High Court forms an opinion that such reasonable grounds do not appear the prayer for bail may be allowed. (9) Whether reasonable grounds exist to connect the accused with the offence charged is a question which must be judicially decided i.e, there should be tangible evidence, offered by the prosecution on which, if not rebutted, the Court may come to the conclusion that the accused is guilty. The Court must apply its mind to the facts of the case and then decide whether or not the accused should be given freedom of bail pending the decision of the case. It is to be noted that where an application for ball is made in the initial stage (as the present case in) the prosecution is expected to satisfy the Court that there is a genuine prima facie case against the accused. (10) Considerations in granting bail, of course, in offences punishable with death or transportation for life are very much different from the considerations on which bail can be granted in other offences. In the former case it is necessary to look into the evidence to see as to whether a prima facie case exists for believing that a person is guilty of those offences. When the High Court grants or withholds bail in a case involving sentence of death or imprisonment for life, the order should give some intelligible indication that the matter was objectively looked into otherwise this Court is sound to be upheld or not. (11) Subsection (2) of section 407, Cr.P.C. Makes it obligatory for the Courts to allow bail to an accused person in all kinds of non-bailable offences including those punishable with death or transportation for life where no reasonable grounds exist for believing that the accused has committed an offence and a further inquiry is warranted. Of course such an order is interlocutory in nature pending inquiry. (12) It is settled law that an accused is presumed to be innocent till the contrary is proved, therefore, the ultimate conviction and incarceration of a guilty person can redress the wrong caused by a mistake relief of interim bail granted to him but no satisfactory reparation can be afforded to an innocent man for his injustific incarceration at any stage of the case if he is acquitted in the long run."
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24. In the case of Shabbir Hussain v. The State PLD .1982 SC(A J & K) 100 the normal rule in murder cases is mentioned by Mr. Justice Raja Muhammad Khurshid Khan, C.J. Of our Supreme Court in pares. 8 to 13, which read as follows:- (8) "The law is settled that in a case of murder the normal rule is refusal to grant bail and on merits bail can be granted only either in cases where there are no reasonable grounds for believing that the accused was guilty of the charge or the case is such that it requires further enquiry or it is covered by any of the exceptions under section 497, Cr.P.C. Bail in such cases is a matter within the discretion of the trial Court, which is to be exercised with due care and caution in view of the facts and circumstances of each case. In this case bail was refused to the appellant when even the challan was not presented before the trial Court and the High Court had left the matter of bail open to be decided by the Court after recording some of the evidence. Much water since then has flown. The statements of eye-witnesses have been recorded by the District Criminal Court. In view of the chariged circumstances the proper course of the appellant would be to approach the District Criminal Court again for bail on the ground that from the evidence recorded reasonable grounds are not established to connect the appellant with the offence charged. (9) So far merits are concerned the Court would not evaluate the evidence which was neither in existence before the subordinate Court nor it was considered thereat. We, therefore, refrain to express ourselves about the merits of the evidence recorded by the trial Court after the refusal of the bail because any opinion expressed on the evidence though tentative may influence the mind of the trial Court. If we release the accused on bail it may create an impression that eye-witnesses hitherto recorded do not, prima facie, make out a case of murder. Likewise, if we refuse bail the trial Court may be persuaded to entertain the belief that the evidence hitherto recorded is short to establish a case of murder against the appellant. (10) It has, therefore, been a matter of concern to the superior judiciary generally to avoid any expression of opinion on the merits of case lest it may influence the trial Judge. The trial Court would be placed in an extremely embarrassing position in such circumstances for although it may not legally be bound by the views of the superior Court yet it will feel hesitant to go against it and will, therefore, be hampered in discharging its own function. In this view of the matter we do not think that, in the stage in which the proceedings are in the present case, we would be justified in reviewing the evidence. The District Criminal Court must be allowed to discharge its own responsibilities uninfluenced by the views of the superior Courts. (11) We are fortified in our view in Allah Bakhsh v. The State 1969 P Cr. L J 185; Jan Muhammad v. The State 1971 SCMR 315; Qamar Din v. The State 1975 P Cr. L J 133 and Muhammad Yaqub v. Iltafur Rehman and another PLD 1974 SC 83. The first mentioned case decides the controversy to the effect that at the stage of bail the Court should not be drawn into a controversy about the merits of the prosecution case to determine the guilt or innocence of the petitioner. In that case the learned counsel for the petitioner tried to comment on the…
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