P L J 1983 SC (AJK) 95

(Appellate Jurisdiction)

Present '• raja  muhammad khurshid  khan, C. J. & abdul majeed mallick, J

MUHAMMAD REHMAN—Appellant

versus

THE STATE—Respondent

Criminal Appeal No, 9 of 1982, decided on 29-1-1983.

(I) Bail—

-------- Grant of in  Hadood cases—Islamic law—Principles of—Criminal Procedure Code (V of 1898) — Applicability of— Held: Criminal matters including bail to be decided by Courts under codified law—Held further : Islamic Penal Laws Act and Hadood Ordinance being silent in respect of bail in offences falling within tmbit of such laws, same to be settled under Criminal Procedure Code. [P. 91]B

PLJ 1983 SC(AJK) 77 ref.

 (ii) Bail—

------- Grant  of—Cross    version—Raising    of — Held :   Cross  version  in order to bs ground for grant of bail to be required to rest on con­crete substance and not on conjectures, surmises or probabilities and must satisfy the judicial conscience of court in iss credibility— CriminaJ Procedure Code (V of 1998)—S. 497. [P. 98]£>

(ill) Bail—

— r>—,».r ra<;e—dp'jw in filing of—Held : Delay in filing of complaint to be no ground for rejection of bail in cross-case—Criminal Procedure Code (V of 1898)—S. 497. [P. 98JE

(|t) Bail—

------- Counter-case—Filing    of—Held :   Mere    filing   of complaint,   in absence of sufficient material, not to be sufficient to allow bail— Criminal Procedure Code (V of 1898). [P. 98 ]/•'

(t) Criminal Trial—

------ Cross  version—Correctness of liability—Ascertainment of—Bail— G-ant of— Held : Both versions, even in bail matters, to be put in jux'a position in order to ascertain correctness of liability and Courts to be liberal in allowing bail even in cases of heinous offences pro­vided person invoking rule for his benefit discharges onus—Criminal Procedure Code (V of 1898)—S. 497. [P. 97]C

Criminal Jurisprudence—

------ Principle of—Held: Eich case including bail matter to  be decided in light of its own facts.    [P. 96]4.

Mr. Muhammad Yunus Suraklivl and Mr. Rfaz Akhtar Chaudhry, Advo­cates for Appellant.

Rjja Mutism nad Akram Khan. Advocate General for Respondent.

judgment

Abdn! Majeed Mailick, J.—This appeal arises out of the judgment of the Shariat Court, dated 18-10-1982, whereby the learned single Judge declined bail to the appellant.

2.               The incident took place in   village  Joona  in  survey No. 246 the subject of dispute  between the parties, at 2 00   p.m. on  13th July,  1982. Sain  and other accused  persons claimed   the land in   their   own title and accordingly  placed stones for building a house over there, The complainant party resisted this act of the accused and called a meeting of the Punchail to settle the dispute. The Punchait gave  its verdict in favour   of com­ plainant  party (Muhammad  Amin)   and   directed   Sain  to remove the material  forthwith. In compliance with  the decision of Punchait Sain and Muhammad Ramzan-accused,  engaged  in  removal of the material, when they were summoned by their ladies in the bouse. But coon thereafter the accused party,  nine in  number, arrived on the scene armed with  various
weapons and attacked the complainant party.   Various persons from   the complainant party received different injuries from the accused. Muhammad Rehman, accused, was attributed the role of firing with   12-bore   gun and causing  injuries  to   Muhammad   Khaliq,    Muhammad Tufail and  Mst. Sarwar Begum.   The injuries  were  inflicted^   on    chest,   abdomen    and thigh.

3.               The other accused persons  were  allowed bail  by    the District Criminal Court, Kotli, except Abdul  Qayyum  and   the    appellant.   Abdul Qayyum was also allowed bail by a learned Judge of the Sharitat Court,

4.               The learned counsel for the appellant  raised   the  following pointi for grant of bail :—

(0 that under section 15 of Islamic Penal Laws Act an offence of hurt it punishable by Qisas, "Diyyat and Hakumat-e-Adal. The sentence* of Qisas not being executable is to be substituted by either of the other sentences. The restrictions contained under section 497 Cr. P. C, are not applicable to such punishments ;

(H)  that accused party has also  lodged  a complaint in the Court  of A D M. is such it is a case of counter version ; and

(WO that the ownership and possession of the land, the place of incident, is disputed between the parties. It is, therefore, a case of further inquiry. Reliance was placed on "Barkat Alt and 12 others v. The State" (P. Cr, L. J. Note 12 p. 9), "Shafqat Alt v. The Sate" (1979 P. Cr. L. J. 174), M. Ashrafuddin v. The Stale" (1977 P. Cr. L. J. 530), "Fazal Hussaln and 3 others v. The State" (1976 S. C. M. R. 124). " Mftho v. The Slate" (P L J 1978 S C 354) •'Khalil-ur-Rehman v. The State" (P L J 1980 S C 86), "Muhammad Sharif v. Thr State" (1976 P. Cr. L. J. 1055) and " Nlsar Ahmed v. The State" (P. L. D. 1971 S. C. 174).

5.    ft is settled  principle of Criminal Jurisprudence   that  each case, Including the bail matters,  is decided in the light of its own facts. Keeping lin  view this principle it  is quite clear that the authorities cited at the bar by  the  learned counsel  of defence are distinguishable. Their facts are not indeniical   to the instant case, fn   the aforesaid  cases   the   accused   either received  injuries in the incident  and  lodged counter complaint   or  were not anoribed primary role of infliction of injuries  to the  complainant party. The grounds of bail raised if. ihr <i!V>resaid cases   arc,   therefore, not avail­able in the instant case

6.    Let  it  be made clear   that criminal   matters  including  bail  are decided  by  tbe Courts under   codified  law. The Islamic  Penal Laws Act and Hadood Ordinances are silent in respect  of bail in,offcnces   falling within  the ambit of those laws.   It  is  expres"sly  provided therein that any matter for which  no express provision has been made in (be Islamic Penal Laws Act and the Ordinances, shall be dealt with under the Code of Criminal  Procedure. It is undisputed  that bail matter relating to offences under the Islamic Penal Laws Act and    Hadood Ordinances, are to be settled coder the Code. An identical proposition was settled  by this Court
in ktatloob ffujsaln Shah's  ease* decided   on 15th of December,   I9»2. Relevant part of the observation is reproduced below :—

"On the 1st Point, referred to above, the learned Advocttt-Oeneral had placed reliance on different books of Islamic Jurisprudence of various authors enlisting the view that bail cannot be granted io a per­son charged with an offence carrying the sentence ofj'C/w*' or'Ifafamf, All the exercise by the learned Advocate-General is premature and ao deep thought is required CO hold so. The Court* are only governed and guided by the codified laws and unless tbe whole conception of ball] embodied in tbe Islamic Jurisprudence is not codified, we cannot legally go by them. Till then we have only to get guidance from the Islamic Jurisprudence relating to bails only to the extent of its being compatible with the codified law. If codified law is in departure to the Islamic Law of Bails, naturally the Court* have to follow the codified law even if morally convinced that tbe Islamic Law it to be preferred to the codified law. We would however welcome • complete switch over of all the laws in strict conformity with the tenet* of Holy Quran and Sunnah."

This Court and the High Court of Azad Jammu and Kashmir is strictly adhered to tbe aforesaid principle by this time. The first objection {*, therefore, not sustainable

7.                Apart from what we have already held  the  allegation against  tbe •ecuJed,  4J   reflected from  tbe   F.I.R.  and report   under section  173, Cr.P.C,, tijjaa of firing for more than once with  12-bore gun resulting in injuries oa three persons on vital  part of their bodies like chest,  penis, (Moiaea and face.   The prosecution has fixed the liability agatatt the •Pfditnt, among others, under section 307,  penal Code.   Ao offset of atteavpt to murder resulting in causing of hurt is punishable witfc totprison- flt*at for life.   la non-bailable offences the discretion given to Court to grant bail is strictly restricted, as cases puuishable with death or imprison-
gjeotfor life, are excluded from the scope of bail.   Nevertheless*, sub­ section (1) of tbe section provides exception  to  tbe enacting part of tbe section.

8.                The other rwo objections actually constitute single objection and these are dealt as such.    It is  welt settled  that when there are counter cases or counter versions both the versions, even in bail matters, are., put in juxta position in oTder to ascertain or teat  the correctness of tbe liability.   In this view of the rule Court* have be.cn liberal to allow bail even in caset of heinous offences.   But the fact remains that  the onus is always on tbe person who invokes the rule for his benefit.

•Reported as PLJ 1983 SC (AJK) 77

9,    We were told thai Sam accused who is head  of  the  accused   parlj has also lodged a ecrnolaint before  the  A.D.M..  KotH,  and  process  have al*o been issued    This was  even   brought   to  the   notice of the learned single Judge of the Shariat Court ; the learned Judge of the Shariat Court was not  persued  to give weight to the compla nt    We have considered the substance of the complaint alongwith  the material collected  in  this case.    In our well considered opinion mere filing of counter case or raising of counter version is  not sufficient  to ask for bail on such ground,    id c other words, a counter case or counter version should not be based op conjecture*, surmises or probabilities.    It must rest  on concrete substance. |so as to lead to a plausible inference.- This is so because human mind € is found best at concoctions and creation of artificial stories. Precisely ipeaking a counter case or counter version, must satisfy the judicial con­science of the Court, in its credibility. We are not in agreement that .dolay in filing the complaint per se is a ground for rejection of bail. But, Jin our view, in absence of sufficient material, mere filing of complaint it {not sufficient to allow bail.

10.    The exception to the rule contained in  the operative part of the section contemplates   concession   of   bail in   non-bailable   offence* when it appears that there  are no reasonable grounds for believing that accused   has   committed non-bailable   offence,  but  there are   sufficient grounds for further inquiry.    In the instant  case the learned counsel  for the defence has not been   able  to persuade  us to believe  that  this case suffers from the lack of sufficient grounds connecting the accused with the liability.   Likewise, we are not shown any ground necessitating further inquiry to link the appellant with the offence.    Mere fact that land,   where the incident took place, was disputed, is not by itself sufficient  to bring the ca*e within the purview of the exception.

A« a result of the aforesaid conclusion the appeal is rejected. Nevertheless, the trial Court is allowed to consider the question of bail of the appellant after recording the evidence of some of the eye-witnesses.

(TQM)                                                                                Appeal rejected.