2012 Y L R 1880

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

WAQAR ASLAM---Appellant

Versus

ZARGHAM HAIDER SHAH and another---Respondents

Criminal Appeal No.33 of 2010, decided on 30th January, 2012.

(On appeal from the judgment of the Shariat Court dated 6-7-2010 in Criminal Revision Petition
No.74 of 2010).

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/337/34---Azad Jammu and Kashmir Interim
Constitution Act (VIII of 1974), S.42---Attempt to commit qatl-e-amd, causing Shajjah, common
intention---Appeal against grant of bail---Scope---Respondent/accused, who was nominated in the F.I.R.,
had been attributed a single pistol shot, which hit the appellant/ complainant at his right leg, which was
non-vital part of the body---Allegation of firing against co-accused was not found correct, which had
made the case one of further inquiry---Medical report revealed that the injury was "Jurh Ghair Jaifah
Hashimah", which was not punishable with death or transportation for life, but the punishment provided
for such an injury was five years imprisonment---Case, in circumstances, did not fall under the
prohibitory clause of S.497, Cr.P.C.---Deeper appreciation of evidence at bail stage was not warranted;
and only a bird eye view had to be taken---If the court while granting bail had not violated the principles
laid down for grant of bail, its cancellation was not proper---Once the bail had been granted, for its
cancellation, there must be strong and exceptional grounds/reasons---In the present case, it was yet to be
determined as to whether the case of accused fell within purview of S.324, P.P.C. or not which was to be
decided at the time of trial by the Trial Court, which had not yet commenced---Investigation of the case,
was already complete and respondent/accused was no more required for further investigation---
Cancellation of bail at such a stage, would not serve any useful purpose---No illegality or irregularity was
found in the order passed by the Shariat Court, while extending the concession of bail to the accused---
Appeal against order granting bail to accused, was dismissed, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Abdul Khaliq v. State and another 2010 SCR
402; Raja Muhammad Irshad v. Muhammad Bashir Goraya and others 2006 SCMR 1292; Suba Khan v.
Muhammad Ajmal and 2 others 2006 SCMR 66 and Ehtesab Bureau, Azad Jammu and Kashmir v.
Muhammad Hanif Shaikh and another 2004 PCr.LJ 996 rel.

Khalid Yousaf Advocate for Appellant.

Ch. Yasir Mehmood Advocate for Respondent No.1.

Raja Ghazanfar Ali, Advocate-General for the State.

Date of hearing: 23rd January, 2012.

JUDGMENT

RAJA SAEED AKRAM KHAN, J.---This appeal has been filed against the judgment and order passed
by the Shariat Court on 6-7-2010, whereby the revision petition filed by accused-respondent was accepted
and he was granted the concession of bail.

2. The brief facts of the case are that a case under sections 324, 337 and 34 A.P.C. was registered at
Police Station City Mirpur on the complaint of Waqar Aslam. It was reported that he was attending
his uncle Noor Muhammad who was admitted in Riaz Hospital. On 29-4-2010 at 7-10 p.m. he was
sitting in Lajpal Hotel at Bus Stand where Zargham Shah son of Azrar Haider Shah, resident of Sadaat
Colony, Javaid alias Fauji son of Adalat, caste Jat, resident of Jada, Ali Shan alias Shana son of Manzoor,
caste Jat, resident of Mohra Dolo and an unknown boy were found armed with fire-arms. Zargham Shah
and Javaid alias Fauji started firing with .30-bore pistols. Zargham Shah fired at the complainant which
hit his right leg while Javaid fired at him which hit his left leg. Ali Shan inflicted a blow on the head of
the complainant with the 'butt' of his pistol while unknown boy inflicted a fist blow on his nose. The
occurrence was stated to be witnessed by Tanweer Razaq son of Muhammad Razzaq, Umair Shah son of
Abdul Sattar Shah.

3. Mr. Khalid Yousaf, the learned counsel for the complainant-appellant, submitted that the Shariat
Court has not exercised its discretion in a judicious manner and erred while overlooking the material
available on the record. The accused respondent was duly nominated in the F.I.R. which was promptly
lodged. The version of the prosecution was fully supported by the prosecution witnesses who are
eye-witnesses of the occurrence and the same was further corroborated by the medical evidence. The
accused-respondent was armed with fire-arm weapon which was duly recovered during the investigation.
The Shariat Court while granting bail to the accused observed that the injury was not sustained on the
vital part of the body which is not correct. Even death can be caused by the injury sustained on non-vital
part of the body. It was a pre-meditated occurrence in which the respondent along with co-accused has
actively participated. In this case section 324, A.P.C., is very much attracted which falls under the
prohibitory clause of section 497, Cr.P.C.

4. Raja Ghazanfar Ali, the learned Advocate-General, supported the arguments advanced by the
learned counsel for the complainant-appellant.

5. On the other hand Ch. Yasir Mehmood, the learned counsel for accused-respondent, submitted that
the Shariat Court has rightly exercised its discretion while extending the concession of bail to the
accused-respondent. He contended that according to medical report the injuries caused by the accused-
respondent have been declared as 'Jurh Ghair Jaifah hashimah', the punishment of which is provided as
five years' imprisonment which does not fall under the prohibitory clause of section 497, Cr.P.C. In such a
case, the grant of bail is a rule and refusal is exception.

6. We have heard the arguments at some length and perused the record. The accused-respondent was
nominated in the F.I.R. However, he has been attributed a single pistol shot which hit the complainant-
appellant at his right leg which is non-vital part of the body. It also reveals from the record that the
allegation of firing against the co-accused was not found correct which makes the case one of further
inquiry. The medical report reveals that the injury is 'Jurh Ghair Jaifah hashimah' which is not punishable
with death or transportation for life but the punishment provided for such an injury is five years
imprisonment, therefore, the case does not fall under the prohibitory clause of section 497, Cr.P.C. In such
like cases the principles laid down by the apex Court of Pakistan in a case reported as Tariq Bashir and 5
others v. The State (PLD 1995 SC 34) is applicable wherein it has been held as under:--
 "It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in
non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided
non-bailable offences into two categories i.e. (i) offences punishable with death, imprison-ment of life or
imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The
principle to be deduced from this provision of law is that in non-bailable offences falling in the second
category (punishable with imprison-ment for less than ten years') the grant of bail isa rule and refusal an
exception. So the bail will be declined only in extraordinary and exceptional cases, for example--

(a) where there is likelihood of abscondence of the accused;

(b) where there is apprehension of the accused tampering with the prosecution evidence;

(c) where there is danger of the offence being repeated if the accused is released on bail; and

(d) where the accused is a previous convict."

7. Deeper appreciation of evidence at bail stage is not warranted and only a bird eye view has to be
taken. In this regard the law laid down by this Court in a case reported as Abdul Khaliq v. State and
another (2010 SCR 402) wherein it was held by this Court as under:--

"At the bail stage a bird eye-view of the evidence has to be taken. Deeper appreciation of
evidence is not permissible at bail stage, however, a bail order cannot be passed in vacuum. Whatever
material is available on record, the Court has to scrutinize the same and form tentative opinion on its
basis."

In another case reported as Raja Muhammad Irshad v. Muhammad Bashir Goraya and others
(2006 SCMR 1292), it has been observed as under:--

"It is a settled principle of law that while considering the request of the accused or his release on
bail, a deep appreciation of evidence is not called for and the Court seized with the matter in terms of
section 497(1), Cr.P.C. is required to make tentative assessment of evidence available on record."

8. It is now settled that if the Court while granting bail has not violated the principles laid down for
grant of bail, its cancellation is not proper. In this regard reliance is placed on a case reported as Suba
Khan v. Muhammad Ajmal and 2 others (2006 SCMR 66), wherein it has been observed as under:--

"6. This is settled rule that if the Court while granting bail has not violated the principles laid
down for grant of bail, the cancellation is not proper. The mere fact that there could be another opinion of
the matter to that of the opinion formed by the Court on the basis of tentative assessment of the evidence,
would not be a sufficient ground to cancel the bail if in the light of the facts of the case, it can be found to
have qualified the test of calling further inquiry into the guilt or innocence of an accused in terms of
subsection (2) of section 497, Cr.P.C. This Court in a number of cases interpreted the provisions of
section 497(2), Cr.P.C. and held that main consideration for grant of bail under subsection (2) of section
497, Cr.P.C. is that if the Court on the basis of tentative assessment, of evidence, forms an opinion that
prima facie, there were reasonable grounds to believe that accused has not committed an offence with
which he was being charged, he would be allowed bail by virtue of subsection (2) of section 497, Cr.P.C.
as of right."

9. Even otherwise, once the bail has been granted, for its cancellation there must be strong and
exceptional grounds/reasons. Reliance is placed on the case reported as Ehtesab Bureau, Azad Jammu and
Kashmir v. Muhammad Hanif Shaikh and another 2004 PCr.LJ 996 wherein it has been observed:--

"..It is a settled principle of law relating to bail matters that once an accused person is granted
bail by a Court of competent jurisdiction, it requires a very strong evidence connecting the accused with
the commission of alleged non-bailable offence for cancelling his bail."

10. It is yet to be determined whether the case of the accused-respondent falls under the purview of
section 324, A.P.C. or not is to be decided at the time of trial by the trial Court which has not yet
commenced. The investigation of the case is already complete and the accused-respondent is no more
required for further investigation. At this stage the cancellation of bail will not serve any useful purpose.

The upshot of the above discussion is that we do not find any illegality or irregularity in the order
passed by the Shariat Court while extending the concession of bail. Resultantly, this appeal is dismissed.
However, the appellant shall be at liberty to file fresh application if he succeeds to collect any fresh
material.

H.B.T./33/S.C.(AJ&K) Appeal dismissed.