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Criminal Appeals Nos. 29 and 30 of 1967, decided on 23rd June 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 17th March 1967, in Criminal Miscellaneous No. 4207 of 1966, read with order of even date in Criminal Miscellaneous No. 2954 of 1966.)

Criminal Procedure Code (V of 1898), Ss. 497(1) & 498 Power of High Court to admit to bail accused charged with offence punishable with death or transportation for life‑‑high Court not to examine merits prosecution case or defence for believing that accused has that accused has been guilty‑Each case to he dealt will, on its own facts and circumstances High Court admitting accused to bail after considering to bail after considering medical evidence, but later, on reconsideration canceling same‑Held, that bail was rightly cancelled‑Materials from which belief as to guilt to be formed‑Criminal Procedure Code (V of 1898), S. 210‑Inquiry Magistrate not empowered to assess merits of prosecution case‑Principle applies in construing S. 497(1).

Held, that the High Court is not to examine the merits of the prosecution case or the plea of defence in finding whether reasonable grounds appear for believing that the accused person has been guilty. Otherwise expression of opinion about them merits of the case by the High Court may dispose of the case before the trial has started.

Where there was direct evidence of the assault by the accused on deceased, what was the nature of the injuries caused by the appellants and whether they were collectively caused with the intention of causing death is for the trial Court to judge. The High Court was not competent to make an assess ment of the medical evidence and form an opinion whether the offence committed by the accused fell under section 302 or 325, P. P. C. which presumably was the basis of the order granting bail.

The order granting bail to the accused was thus not warranted in law and was rightly set aside.

An application for bail is often made before the commitment proceedings have even started. What would then be the material on which the Court may form opinion "whether reasonable grounds appear" Obviously the F. I. R., the recoveries, it' any, and the stateme;1st of the witnesses recorded under section 1 6 ; , Cr. P. C.

As observed in Khalid Saigol v. The State P L D 1962 S C 495 at p. 499: Subsection (1) of section 497 evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of they Court and as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has, never the less, as a necessary part of its functions,

amely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can .be offered which, if left unrebutted, may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists."

Muhammad Ayub v. Muhammad Yaqub and The State P L D 1966 S C 1003 rel.

Khalid Saigol v. The State P L D 1962 S C 495 distinguished.

Khalid Saigol v. The State P L D 1962 S C 495 and Jairam Das and others v. King Emperor L R 72 I A 120 ref.

Even the Inquiry Magistrate who records evidence and frames a charge against an accused person is under section 210, Cr. P. C., not empowered to assess the merits of the prosecution case, his function being confined to the determination whether there is evidence which if believed will result in conviction. If so the accused will be charged and put up for trial.

The principle underlying this construction of section 210 is that it is not within the domain of the inquiry Magistrate to make assessment of the evidence. That is the function of the trial Court which prepares its own record of evidence and in the light of that evidence, determines the innocence or guilt of the accused person. The same principle would apply in construing the clause in section 497(1) if reasonable grounds appear for believing that the accused has been guilty of an offence punishable with death or transportation for life.

Aftab Farrukh, Advocate Supreme Court instructed by Ghulam Mujtaba Chaudhri, Attorney for Appellants.

Raja Said Akbar, Advocate‑General West Pakistan (Shabbir Ahmad, Senior Advocate Supreme Court and C. M. Latif, Advocate Supreme Court with him) instructed by Ijaz Ali Sheikh, Attorney for the State.

Date of hearing: 23rd June 1967.

‑This will dispose of Criminal Appeals Nos. 29 and 30 of 1967 directed against two separate orders of ‑the High Court of West Pakistan dated the 17th March 1967, one by which the bail granted earlier by the same learned Judge to Muhammad Aslam, Muhammad Akbar, Muhammad Munir and Muhammad Nawaz, appellants, charged with the offence of murder was cancelled and the other by which the application for bail by their co‑accused Muhammad Akram was rejected.

The ground urged in support of Appeal No. 29 by Mr. Aftab Farrukh is that the reasons for which the appellants were by order dated the 25th August 1966, granted bail, viz., the appraisal of the medical evidence continued to hold good and therefore notwithstanding the subsequent order of committal there was no justification to cancel their bail.

The order dated 25‑8‑1966 granting bail to Muhammad Aslam and others was based on the following reasons:

"3. The learned counsel for the petitioners has drawn my attention to the statement of Dr. Muhammad Zaheer Khan who conducted the post‑mortem examination on the dead‑body of Riaz. The doctor found four lacerated wounds and four swellings on the deceased. According to him none of the injuries individually was dangerous to the life and that ordinarily the injuries like those found on the deceased do not result in death. In view of this evidence it is urged that the offence, if any, committed fell primarily within thje purview of section 326 , . , ,

4. In view of the medical evidence available on the file I am of the view that the petitioners must be admitted to bail. Moreover, .the petitioners are in custody for the last eight months and the material prosecution evidence having been recorded in the committing Court, the danger of interference with the witnesses is clearly minimized."

There is some force in the contention raised by Mr. Aftab Farrukh that as the medical evidence had remained unaltered there was no justification to cancel the bail, but it does not necessarily mean that the order granting bail was to the circumstances of the case properly made.

The policy of the law enunciated in Muhammad .4yub v. Muhammad Yaqub and The State (P L D 1966 S C 1003) is that persons accused of offences punishable with death or transportation for life are not to be released on bail except on the conditions laid down in section 497 and that the same policy should be kept in view by the High Court in dealing with bail applications under section 498. Reliance was placed in this respect on the pronouncement of the Judicial Committee in Jairam Das and others v. King Emperor (L R 72 I A 120), that section 498 is ancillary or subsidiary to sections 496 and 497 of the Code and it does not confer a larger power on the High Court to grant bail to accused persons. Under section 497(1) if reasonable grounds appear that a person has been guilty of an offence punishable with death or transportation, bail may be granted only if the accused is a female or is under the age of sixteen years or is sick or infirm. Though none of these conditions applied in the case of the appellants the learned Judge granted them bail by embarking on an inquiry whether the evidence recorded by the Committing Magistrate disclosed an offence punishable under section 302 or that the offence fell within the purview of section 325, P.P.C. This appraisal of the medical evidence was bound to effect the judgment of the trial Court for it could be assumed that in granting bail the High Court had concluded that there did not appear grounds for believing that they had been guilty of an offence punishable with death or transportation for life. It was therefore, idle to add: without expressing any opinion on the merits of the case lest it should prejudice a party s case the petitioner s are ordered to be released on bail .

The conditions for granting bail under section 497(1), namely, that the accused is a female, etc. are simple enough to ascertain and their application will depend on the facts of each case. The words which require consideration therefore are: "if there appear reasonable grounds for believing". An erroneous impression seems to have crept in lately that in dealing with a bail matter the Court is to form an opinion about the merits of the prosecution case as a whole. Lengthy orders have accordingly been recorded while granting or refusing bail in which the merits of the prosecution case and the plea of defence are elaborately dealt with. It will be profitable to observe in this connection that even the Inquiry Magistrate who records evidence and frames a charge against an accused person is under section 210, Cr, P. C. not empowered to assess the merits of the prosecution case, his function being confined to the determination whether there is evidence which if believed will result in conviction. If so the accused will be charged and put up for trial.

The principle underlying this construction of section 210 is that it is not within‑ the domain of the Inquiry Magistrate to make, assessment of the evidence. That is the function of the trial Court which prepares its own record of evidence and in the light of that evidence determines the innocence or guilt of the accused person. The same principle, would apply in construing the clause in section 497(1) if reasonable grounds appear for believing that the accused has been guilty of an offence punishable with death or transportation for life. '

An application for bail is often made before the commitment' proceedings have even started. What would then be the' material on which the Court may from opinion whether reasonable grounds appear Obviously the F.I.R. the recoveries, it any and the statements of the witnesses recorded under section 161, Cr, P.C. This aspect of the section 497(1) of the Criminal Procedure Code was examined in the case of Khalid Saigol v. The State (P L D 1962 S C 495), relied upon by the learned judge in granting bail to the appellants. At page 499 of the report the Court observed;----

"It will be observed that even under section 497(1) in the case of an offence punishable with death or transportation for life the mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. Subsection (1) of section 497 evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court and, as such, the Court is not called on at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused s guilt or innocence. In has nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look at the materials placed before by the investigating agency and be prima‑facie satisfied that some tangible evidence can be offered which left unrebutted, may lead to the inference of guilt before it can to the conclusion that its discretion no longer exists."

The High Court is thus not to examine the merits of the prosecution case or the plea of defence in finding whether reasonable grounds appear for believing that the accused person has been guilty. Otherwise any expression of opinion about the merits of the case by the High Court may dispose of the case before the trial has started.

In the case be ore us there is direct evidence of the assault by the appellants on Riaz deceased. What was the nature of the injuries caused by the appellants and whether they were collectively caused with the intention of causing death is for they trial Court, to judge. The learned High Court Judge was, therefore, to competent to make an assessment of the medical evidence and form an opinion whether the offence committed by the appellants fell under section 302 or 325, P. P. C., which. presumably was the basis of the order granting bail to the appellants.

A word may be said about the case of Khalid Saigol v. The State. The appellant in that case was tried with four others in respect of charges under sections 302/149, 307/149 and 148 of the Pakistan Penal Code by the Additional Sessions Judge, Lahore who after a protracted trial found all the four persons not guilty and acquitted them. Against the order of acquittal the State preferred an appeal which was admitted for regular hearing and non‑bailable warrants in respect of the appellant returnable to the District Magistrate, Lyallpur, were issued. An application made on behalf of the appellants for bail was rejected by the High Court from which leave to appeal was granted to consider the scope of section 427 of the Criminal Procedure Code and whether sections 496 and 497 were intended to control section 427. On comparing the terms of sections 427, 496 and 497 and adopting the argument of their Lordships of the Judicial Committee in Lala Jairam Das and others v. The Emperor, it was held that section 427 was an independent section governing the grant of bail to an acquitted person against whose acquittal an appeal had been admitted for hearing. It was in this context that the following observations reproduced in the order of the High Court dated 25th August 1966, were made:

"The nature of the accusation and the heinousness of the crime alleged are, no doubt, very relevant circumstances to be taken into consideration, but by themselves they are not the only circumstances, as we have endeavoured to point out, even under sections 496 and 497. What further considerations should be taken into account by the Court in deciding this question must necessarily depend upon the facts and circumstances of each case, and no hard and fast rules can be laid down."

The reference to sections 496 and 497 was only by way of illustration otherwise the dictum was confined to grant of bail to the respondent in an acquittal appeal. As the bail in the present case was granted under section 497(1) the more appropriate observations made by the Court appeared at page 499 of the report which have been reproduced above. It was brought out clearly that if there be some tangidle evidence which if left unrebutted may lead to the inference of guilt the condition in section 497(1) "if reasonable grounds appear" is satisfied.

No separate arguments were addressed in Criminal Appeal No. 30 by the counsel for Muhammad Akram.

The order dated the 25th August 1966, granting bail to Muhammad Aslam and others, appellants in Criminal Appeal No. 29 was thus not warranted in law and rightly set aside by the same learned Judge of the High Court. Similarly there was no merit in the application of Muhammad Akram, appellant, in Criminal Appeal No. 30, for grant of bail more particularly as he had since then been charged with the commission of an offence punishable of section 497(1). P. C. which certainly satisfied the "if reasonable grounds appear" that he has been guilty of an offence punishable with death or transportation.

Both the said appeals are accordingly dismissed and the appellants who were granted interim bail by this Court are directed to surrender to their bail bonds forthwith.

Appeal dismissed.

A. H.

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