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Criminal Petition for Special Leave to Appeal No. 162 of 1908, decided on 24th May 1968.

(On appeal from the order of the High Court of West Pakistan, Lahore, dated the 1st May 1968, in Criminal Mis cellaneous No. 1199 of 1968).

Criminal Procedure Code (Y of 1898), Ss. 497 (1), (2) & 498 Bail‑No dictum or judgment of Supreme Court creates any "hurdle" in matter of bail‑Basic essentials‑Bail never to be with held as a punishment‑Within discretion of girt;, to be exercised with the care and caution‑Fundamental incident of exercise of judicial power depending upon facts and circumstances of case Order on bail application not a matter of routine but must be "carefully balanced and weighed in scaled of justice and requirement of relevant law reasonable grounds" [S. 497 (1) means grounds which appeal to a reasonable man and which connect accused with crime‑"Grounds", word of "higher import" than the word "suspicion"‑Bail to be refused where reasonable grounds exist tending to connect accred‑with crime or without the need to go into a deeper appreciation of merits of such grounds and of the evidence in which they rest Supreme Court does not ordinarily interfere with discretion exercised by Courts below "unless there has been abuse of power" resulting in "complete miscarriage of justice"‑[Khushi Muhammad v. The State P L D 1953 P C 170; Muhammad Aslam v. The State P L D 1967 S C 539 and Khalid Seghal's case P L D 1962 S C 492 ref.; Sadiq Ali v. The State P L D 1966 S C 589; Muhammad Ayub v. Muhammad Yaqub and another P L D 1966 S C 1003 and Muhammad Aslam and othersv. The State P L D 1967 S ‑C 539 considered].

M. Anwar, Bar‑at‑Law Senior Advocate Supreme Court instructed by M. A. Rah man, Senior Attorney for Petitioner. Nento for the State.

Date of hearing: 24th May 1968.

SAJJAD AHMAD, J.‑

This petition for special leave to appeal arises out of the prayer made by Ch. Abdul Malik, petitioner for his bail in a murder case which has been rejected by the courts below. The petitioner is one of the 6/7 persons who are accused of having caused the death of Muhammad Zaman, a rice dealer of Mardi Jamke Chattha at about 10‑30 a.m. on the 14th of November 1967. Muhammad Zaman who had sustained a fatal firearm injury survived for sometime and was able to make a dying statement at the Police Station Akalgarh in which he charged Muhammad Sadiq, his brother Riaz and their father Ali Ahmad and 3/4 other persons unnamed for having assaulted him. Muhammad Sadiq allegedly opened fire and hit the deceased on the waist followed by the remaining accused persons who had also fired shots to scare away the people in order to make their retreat. According to the prosecution the petitioner is one of those unnamed assailants. The motive for the crime alleged by the deceased was that 8 or 9 years ago Khurshid, a brother and Anwar, a paternal cousin of the deceased Muhammad Zaman had killed the brother of Sadiq. The petitioner is not apparently connected with Muhammad Sadiq or with any other accused. It is alleged by the petitioner In the bail application that he was charged on account of suspicion for having, as a friend of Muhammad Sadiq, exercised his influence as the Chairman of Union Council, Kotla Arab Ali within the limits of Poilce Station Kakrali, for procuring a false alibi for Muhammad Sadiq, showing him to be under arrest by the Kakrali Police Post on the 14th of November 1967 at 9‑30. a.m., on account of being found in possession of an unlicensed revolver and for which a case under section 13 of the Arms Ordinance was registered against him. An Assistant Sub‑Inspector of Police Station, Kakrali was also involved in the case for helping in the manipulation of the alibi of Muhammad Sadiq. It is evident that Muhammad Sadiq's presence under arrest with the Kakrali Police Post at 9‑30 a.m., on 14‑I1‑1967 if found to be true, is wholly inconsistent with the prosecution case of Muhammad Sadiq having participated in the murder of Muhammad Zaman at 10‑30 a.m., the same day in village Mandi Jamke Chattha which is at a distance of 45 miles from the Kakrali Police Post.

The petitioner apprehending his arrest first moved for anticipatory bail in the High Court by an application under section 498 of the Criminal Procedure Code (Criminal Miscellaneous No. 5805/67) which did not succeed. Thereafter he surrendered himself before the Magistrate on 19‑1‑1968 praying for remand to judicial custody which was granted. Bail applications , under section 497, Cr. P. C. were successively moved before the learned trial Magistrate, the learned Sessions Judge and the High Court which have been dismissed.

The learned Single Judge in his detailed order has examined the factual and legal position of the case of the petitioner as regards the prayer for his bail including the fact that the petitioner allegedly being one of the unidentified assailants, was put on a test identification parade in which 4 of the 5 eye‑witnesses did not identify him and the 5th Nazir Ahmad was able to do so after he had asked for the removal of the turban of the petitioner which exposed his grey hair at the temples to furnish a known clue for his identification by this witness. It is also stated in the order that the police had ultimately decided to send up the petitioner for trial in spite of the opinion of one of the investigating officers about his innocence. He had also referred to the argument of the learned counsel for the petitioner that it was an eminently fit case for bail under section 497 (1) Cr. P. C., as reasonable grounds did not exist to show that the petitioner had committed the offence of murder and that alternately the petitioner should be bailed out under section 497 (2), Cr. P. C., if sufficient grounds existed for further inquiry into his guilt. The learned Judge has summed up his conclusion in para. 10 of his order as follows:‑

"I have given the matter my anxious thought. It is true that the opinion of the police officer is not per se legal evidence, but one thing cannot be lost sight of that one of the investigating officers during the investigation, found the petitioner to be innocent, though ultimately the police have made up their mind that the accused should be sent up for trial. In the circumstances of this case, it can be said that the case of the petitioner is covered by section 497(2) of the Code of Criminal Procedure, as it can tie said that there are not reasonable grounds for believing at this stage that the accused person has committed a non‑bailable offence and that there are sufficient grounds for further inquiry into his guilt. But following the dictum of their Lordships of the Supreme Court in Sadiq All v. The State (P L D 1966 S C 589) Muhammad Ayub v. Muhammad Yaqub and another (P L D 1966 S C 1003) and Muhammad Aslam and others v. The State (P L D 1966 S C 539) consider that it is not a fit case for bail. The petition is accordingly dismissed."

By avoiding to use words of judicial finality in explaining his conclusion, the impression which one gets from the learned single Judge's order is that he felt that an argument could be raised that the case of the petitioners fell under section 497(2), Cr. P. C., without saying whether or not the argument was acceptable to him. We do not wish to burden the learned Single Judge with the intention of holding that although the case fell under section 497 (2), Cr. P. C. to merit bail, yet the learned Single Judge found himself precluded to grant bail in view of the dictum of the Supreme Court in the cases cited by him in the order. It must be made clear with all deference to the learned Single Judge that no dictum or judgment of the Supreme Court has created any such hurdle in the matter of bail, as has been conceived by him in his order. It seems that the pleathora of decisions on the subject, each proceeding on its own particular facts and circumstances different from the other has produced a confusion of thought but there is no doubt whatever about the basic essentials governing this matter.

The first is that bail should never be withheld as a punishment. In cases of non‑bailable offences coming before the Courts, grant of bail is a relief resting primarily in the discretion of the Courts to be exercised with due care and caution as a fundamental incident of exercise of judicial power, taking into account the facts and circumstances of each case. Orders on bail application should not be considered as routine orders. Involving as they do the liberties of the citizens, they must be carefully balanced and weighed in the scales of justice and the requirement of the relevant law, as contained in sections 496‑‑498 of the Cr. P. C. There is however a further limitation on the Courts' discretion in regard to cases of offences which are punishable with death or transportation for life, which is that the accused shall not be released on bail in such cases if there are reasonable grounds for believing that he has committed such an offence. "Reasonable grounds" is an expression which connotes that the grounds be such as would appeal to a reasonable man for connecting the accused with the crime with which he is charged, "grounds" being a word of higher import than "suspicion". However, strong a suspicion may be it would not take the place of reasonable grounds. Grounds will have to be tested by reason for their acceptance or rejection. The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court, as it may possess or is expecting to possess as demonstrating evidence available in the case both direct and circumstantial. If such grounds exist tending to connect the accused with the crime, bail should be refused, without the need to go into a deeper appreciation of the merits of those grounds and the evidence on which they are rested, which functions are to be assumed at the trial stage. However, if it is found that the charge is groundless, i.e., to say unsupported by any evidence or instead of the grounds being reasonable, their absurdity stands exposed on a plain view, or the charge on its face value is reduced to a minor one which is not punishable with death or transporta tion for life, as for example where it is a case of accidental and unintended death caused by simple hurt, the limitation on the Courts' discretion is removed which must then be freely exercised in favour of the grant of bail. Similarly where reasonable grounds are not disclosed but grounds do exist for a further investigation and inquiry into the guilt of an accused person, the case will fall under section 497 (2) of the Cr. P. C., in which case again bail should not be withheld.

The first two decisions of this Court referred to in his order by the learned Single Judge deal primarily with the powers of the High Court and the Sessions Court under section 498 of the Cr. P. C., in relation to sections 496 and 497 of the same Code. It was held therein in general conformity with the view expressed earlier by the Federal Court in the case of Khushi Muhammad v. The State (P L D 1953 P C 170), that section 498 is merely subsidiary or ancillary to sections 496 and 497 of the Code and does not confer any extra powers on the High Court or the Sessions Court for the grant of bail. These decisions do not in any manner whittling down the powers of the Courts to grant bail or add to or vary the conditions of the grant of bail under the latter sections. In the third case Muhammad Aslant v. The State (P L D 1967 S C 539), the observations of this Court in Khalid Seghal's case were noted with approval to re‑affirm that in deciding the question of bail under section 497 (1), Cr. P. C., when the accused is first brought before the Court, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of accused's guilt or innocence. It 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 on 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 this discretion no longer exists. This evidently means that the discretion of the Court in refusing bail in cases of offences punishable with death or transportation is wrested away only after the investigating agency satisfies the Court prima facie that there are reasonable grounds in the case which if not rebutted would lead to the inference of guilt of accused persons. This Court ordinarily does not interfere with the discretion exercised in the matter of bail by the courts below, unless it is found that there has been an abuse of power in the process taken, resulting in a complete miscarriage of justice. In the present case we do not propose to interfere with the order of the learned single Judge and to grant bail to the petitioner by engaging ourselves into an examination of the reasonableness of the grounds against the petitioner as regards the charge of murder against him, there being no clear cut finding of the learned single Judge on that issue.

We dismiss the petition but as the finding of the learned single Judge is not certain as regards the applicability of section 497 (1) or section 497 (II), Cr. P. C. to the facts and circumstances of this case, the petitioner may, if advised, move the learned Judge afresh, for a direct verdict in the light of the observations made in this judgment.

A. H. Petition dismissed.

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