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Petition for Special Leave to Appeal No. K‑47 of 1967. decided on 30th January 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 22nd August 1967 in Criminal Bail Application No. 235 of 1967).
Ss. 497 & 498 Provisions of S. 497 govern that of S. 498‑‑‑None of exceptional circumstances mentioned in S. 497 present.‑Question whether in circumstances of case High Court in grunting bail acted on correct principles‑Special Leave to Appeal granted by Supreme Court Order of High Court granting bail suspended meanwhile‑Penal code (XLV of 1860), S. 302.
Sadiq Ali v. The State P L D 1966 S C 589 and Muhammad Aslam and others v. The State P L D 1967 S C 539 ref:
Akhtar Ahmad Kazi, Additional Advocate‑General, West Pakistan, Karachi instructed by Shafiq Ahmad, Senior Attorney for the State.
Muhammad Hayat Junejo, Advocate Supreme Court; instructed by A. H. Memon, Attorney for Respondent.
Date of hearing: 30th January 1968.
‑In this case the respondent, Piral Shah, who is one of the accused cited in a murder case, has been granted bail before arrest by order of a learned Single Judge of the High Court. The State has called in question the legality of that order by this petition for special leave to appeal.
A double murder is stated to have been committed on the 20th July 1967, in the morning, by certain persons who were said to be hired assassins. The respondent was alleged to be the person moving the strings behind the scene and to have inspired the murders. It is stated that he bad motive for doing so, as one of the deceased persons had been prosecuted for the murder of his own nephew, committed some 12 months earlier, but had been acquitted two months before the present murders. Besides the evidence of the motive, the prosecution also had got the statement of two persons, Jaffar Shah and Mahboob, recorded under section 164 of the Code of Criminal Procedure. Jaffar Shah's statement, if believed, would directly connect the respondent with the conspiracy to commit the murders. Mahboob who was a servant of the respondent at that time, also made a statement which lent support to the allegation that some of the murderers had been seen at the Otaq of the respondent one day prior to the murder. The murderers include a servant of the respondent. With all these circumstances being present, the learned Additional Advocate-General has argued with force before us that there was no occasion for grant of bail to the respondent before his arrest, in a serious case of murder. He points out that the order granting bail, based as it is on the allegation that Jaffar Shah being a chance witness, his testimony would be open to doubt would prejudice the case for the prosecution at the trial.
Mr. Hayat Muhammad Junejo has entered a caveat on behalf of the respondent to object to the petition for special leave to appeal. He haft attempted to argue that the evidence available against the respondent is of a flimsy character and would not justify his prosecution.
It is not for us to assess the worth of the evidence available against the respondent at this stage. The principles on which bail should be granted in murder cases have been settled by this Court in cases reported as Sadiq Ali v. The State (P L D 1966 S C 589), Muhammad Ayub v. Muhammad Yayub and another (P L D 1966 S C 1003) and Muhammad Aslam and others v. The State (P L P 1967 S C539). It has been laid down that sec tion 497 of the Code of Criminal Procedure governs the provision of section 498, thereof, and that unless there be no reasonable ground for thinking that the person concerned is involved in the murder, or unless he is a minor or an infirm person due to illness, bail should not be normally granted to a person accused of murder. None of the exceptional circumstances justifying bail mentioned above, is present in the instant case. We, therefore, grant leave to appeal to consider whether the High Court acted on correct principles, in granting bail before arrest, in the circumstances of this case. The operation of the order of that High Court would meanwhile be suspended.
Petition accepted.
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