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Criminal Bail Application No. 227 of 1968, decided on 25th July 1968.

S. 497‑Bail in non bailable offence‑Materials placed before High Court by prosecu tion pertaining to proceedings of Inquiry Court‑High Court can take into consideration such materials with a view to forming opinion if reasonable grounds appeared for believing that accused was guilty of an offence punishable with death or transportation for life provided it was an exceptional case and such materials favoured accused‑Penal Code (XLV of 1860), S. 307.

The High Court while considered a bail application, could take into consideration the materials placed before it by the prosecution, notwithstanding the fact that these materials pertained to the proceedings of the Inquiry Court, with a view to forming an opinion if reasonable grounds appeared for believing that the accused was guilty of an offence punishable with death or transportation for life, provided it was an exceptional case and "prima facie" the said materials in so far as the requirements of section 497, Criminal Procedure Code were concerned, appeared to favour the accused.

In the instant case, under section 307, P. P. C. the medical evidence was that deceased had died due to intestinal obstruction caused by intestinal tuberculosis and that simple injuries caused upon his person, none of which appeared to be on any vital part of his body, had neither contributed to nor accelerated his death. The evidence of prosecution witnesses as to who actually inflicted knife injuries to deceased and the complainant was also contradictory:

Held, that upon the basis of materials placed before the Court (and the prosecution did not allege that there was any more evidence which was proposed to be examined at the trial Court), this was an exceptional case in which no reasonable grounds appeared to believe that the applicants were guilty of an offence punishable with death or transportation for life notwithstanding the fact that they have already been committed to the Court of Sessions to stand trial for offences under section 307/342, P. P. C.

Abdul Fateh Memon for Applicants.

Muhammad Haleem, Asstt. A.‑G. for the State.

Date of hearing : 17th July 1968.

The applicants have been committed to the Court of Sessions, Larkana to stand trial for offences under section 307/149/34, P.P.C., for having committed murderous assault on Wazir P. W., and on his brother complainant Nazir (who subsequently died) after having formed themselves into an unlawful assembly armed with deadly weapons. They first attempted to secure bail from that Court, but their application was rejected, and thereafter they filed a similar application in this Court which was also dismissed on 4th July 1968 because of the observations of their Lordships of Supreme Court in the reported judgment‑

Muhammad Aslam v. The State P L D 1967 S C 539.

2. The applicants have now filed this application for bail mainly on the ground that in view of the latest judgment of the Supreme Court‑

Nadara v. Jamait Khan and another P L D 1968 S C 310.

this Court was now competent to grant them bail notwithstanding the fact that they were already committed to the Court of Sessions under section 307/149/34, P. P. C.

3. I have heard Mr. Abdul Fateh Memon, the learned counsel for the applicants, and Mr. Muhammad Haleem, the learned Assistant Advocate‑General for the State. In order to appreciate the contention of the learned counsel for the applicants it would be expedient briefly to recall the facts of the prosecution case:

On 30th December 1967, two First Information Reports were lodged by the parties at Ratodero Police Station, Larkana ; one by applicant Ghazanfar Ali at 9‑15 p. m. and the other by complainant Nazir (deceased) at 9‑30 p. m. In the First Information Report lodged by complainant Nazir, it was alleged that about 8‑10 p.m. on the night of incident after he closed his shop as usual he went over to the shop of his brother P. W. Wazir from., where both of them set out for their house. When they, reached Tagio Chawk, the applicants and three unidentified persons formed themselves into unlawful assembly, while armed with deadly weapons, and attacked them. Applicants Bachal. Shah and Haji Shah are alleged to have inflicted knife injuries on the complainant and his brother Wazir, while the other accused gave them lath) blows. In the counter‑First. Information Report filed by Ghazanfar Ali, applicant it was alleged that on, the night of incident he was waylaid bye complainant Nazir, his brother Wazir, P. W. Hayat and Rajab while they were armed with hockey sticks and lathis, and all of them attacked him in the cloth market of Larkana town.

4. It is a matter of record that from the side of applicants in this case Ghazanfar Ali alone had received one incised injury, while front the side of complainant‑party Nazir and Wazir both were injured ; the former having received six simple incised injuries‑ and the latter five injuries, two of them being simple incised injuries and three contused wounds out of which one was grievous, having been inflicted upon the small finger of his right hand. It is also a matter of record that Nazir (deceased) died in the hospital after abut nine days on 8‑1‑1968, and upon the post‑mortem examination of his dead body having been carried out by Dr. Rafiq Ahmed, Medical Officer Civil Hospital, Larkana he came to the conclusion that Nazir had died as a result of intestinal obstruction caused by tuberculosis.

5. The father of the deceased being dissatisfied with the post‑mortem report of Dr. Rafiq Ahmed, approached the authori ties on whose orders the body of Nazir was exhumed and subjected to further examination by a medical board of three doctors, namely :‑

(1) Dr. Musthaque Hussain Rizvi, Pathologist, District Headquarter Hospital, Sukkur.

(2) Dr. Muhammad, Sajan Memon, M. B.B. S., S. D. P. H., Medical Superintendent District Headquarter Hospital, Larkana, and

(3) Dr. G. U. Awan, M. B.B. S., D.O., Medical Superinten dent, District Headquarters Hospital Khairpur, who acted as Chairman.

As result of examining the dead body, the medical board confirmed the earlier opinion of Dr. Rafiq Ahmed that Nazir had died on account of intestinal obstruction due to intestinal tuberculosis.

6. Dr. Rafiq Ahmad in his evidence before the committing Court stated in unequivocal terms that Nazir had died due to intestinal obstruction, and that the six simple incised injuries, none of which was caused on any vital part of his body, had in no way contributed to or accelerated his death. According to him, Nazir would have in any case died within a few days of intestinal obstruction even if no injuries had been inflicted upon his person. In support of his opinion he referred to the indoor sheet (Exh. 6), which revealed that when Nazir was initially admitted to the hospital he showed the symptoms of intestinal obstruction. In regard to the six simple incised injuries on the person of Nazir (deceased) he stated that they were superficial in nature and needed only a few dressings.

7. In this view of the medical evidence on record, the learned counsel for the applicants argued that there were no reasonable grounds for believing that the applicants were guilty of an offence punishable with death or transportation for life, and consequently they were entitled to be released on bail. However, the question which required consideration was as to:

Whether this Court could properly refer to the said medical evidence for the consideration of this bail application

It would be recalled that on 4th July 1968, I had dismissed a similar application mainly on the ground that in light of the observations of the Supreme Court in Muhammad Aslam's case it was not open to me to evaluate the medical evidence on record with a view to forming an opinion if there appeared reasonable grounds for believing whether the applicants were guilty of an offence punishable with death or transportation for life. However, that aspect of the case now required re‑examination in the light of the judgment of the Supreme Court of Pakistan reported as:

Nadara v. Jamait Khan and another P L D 1968 S C 310.

After anxiously analysing judgment in Nadara's case, in my humble opinion, it appeared to have laid down the following principles in regard to the construction of section 497 of the Criminal Procedure Code.

(i) It would be incorrect to say that a person who is accused of an offence punishable with death or transportation for life cannot be admitted to bail except on ground of age, sex or infirmity, as section 497, Cr. P. C., envisages that bail be refused if there appears reasonable ground for believing that the person accused has been guilty of an offence punishable with death or transportation for life.

(ii) The determination whether bail will be allowed to a person accused or an offence punishable with death or transportation for life will depend on the facts of each case.

(iii) That after the material witnesses were examined by the Inquiry Magistrate or the trial Judge the Sessions Judge or the High Court, if satisfied that reasonable grounds do not appear for believing that the accused was guilty of an offence punishable with death or transportation for life, may grant him bail, but they must not opine that the offence committed by the accused fell under a different section of Pakistan Penal Code.

(iv) That it would be wrong for the Courts to subject to the evidence recorded during the inquiry to appraisal or criticism as the trial was yet to open and the statements made to the Inquiry Magistrate are for the purpose of determining only whether the person accused of an offence punishable with death or transportation for life should be committed for trial and declare with what offence he was charged. However, the possibility that the evidence recorded during the inquiry may persuade the Sessions Judge or the High Court to believe that reasonable grounds do not appear for believing that the person accused has been guilty cannot be altogether excluded.

(v) That ordinarily the framing of a charge against the accused person upon taking evidence in line with the requirements of section 210, Criminal Procedure Code and his examination would "prima facie" furnish a ground for believing that reasonable grounds appeared that he was guilty of an offence punishable with death or transportation for life, but at the same time he may be allowed bail in an exceptional case if the evidence produced before the Inquiry Magistrate "prima facie" showed that no reasonable grounds appeared for believing that he was guilty. This "seemingly incongruity" between an order committing an accused person for trial and framing a charge against him and the view formed by the Sessions Judge or the High Court that for the purpose of bail, reasonable grounds do not appear for believing that he was guilty rested upon the difference in the provisions of section 210 and section 497, Criminal Procedure Code which could however be reconciled by giving due regard to the order of commitment in arriving at the conclusion whether the conditions provided in section 497, Criminal Procedure Code for granting bail were fulfilled in a given case or not".

It would be seen that in light of these guidelines, the High Court while considering a bail application, could take into consideration the materials placed before it by the prosecution, notwithstanding the fact that these materials pertained to the proceedings of the Inquiry Court, with a view to forming an opinion if reasonable grounds appeared for believing that the accused was guilty of an offence punishable with death or transportation for life, provided it was an exceptional case and "prima facie" the said materials in so far as the requirements of section 497, Criminal Procedure Code were concerned, appeared to favour the accused.

8. Let me now examine whether in the light of materials placed on record, the applicants could be said to have made out a case for bail. Reference may first be made to the evidence of Dr. Rafiq Ahmad who in the committing Court unequivocally stated that Nazir had died due to intestinal obstruction caused by intestinal tuberculosis. He further stated that the six simple injuries caused upon his person, none of which appeared to be on any vital part of his body, had neither contributed to nor accelerated his death. In fact, according to him Nazir would have in any case died within a few days of intestinal tuberculosis even if no injuries had been caused to him. In support of that opinion he also referred to indoor sheet (Exh. 6) which revealed that on the very day when Nazir was admitted to hospital he showed the symptoms of intestinal obstruction. Lastly he stated that most of the injuries caused to Nazir (deceased) were superficial and required only few dressings. It would be recalled that the dead body of Nazir was exhumed by orders of the authorities and subjected to huh re‑examination at the hands of a medical board whose Chairman Dr. G. U. Awan appeared as a witness before the committing Court. He confirmed that the medical board was also of the opinion that Nazir had died due to intestinal obstruction caused by intestinal tuberculosis.

9. Reference may next be made to tire fact that the prosecution examined three eye‑witnesses in the Court of committing Magistrate, namely :‑

(1) Wazir P. W.,

(2) Akan P. W., and

(3) Ghulam Hussain P. W.

So far as Akan P. W. was concerned he admitted to have witnessed the incident, but stated that he did not notice as to which one of the applicants had inflicted the knife injuries upon the persons of Wazir P. W. and Nazir (deceased). It is true that Ghulam Hussain P. W. ascribed the said knife injuries to applicants Bachal Shah, Haji Shah and Raja Shah, but the evidence of Wazir P. W. runs counter that version according to whom the knife injuries in question had been caused by applicant Bachal Shah. Another witness, namely Jurio, the father of Wazir and Nazir, was not a witness of occurrence and had arrived at the scene after he was informed of the incident. In that view of the evidence on record could it be said that there appeared reasonable grounds to believe that the applicants were guilty of an, offence punishable with death or transportation for life After anxiously applying my mind to the material placed on the record of this case and to the fact that on the basis of that material the applicants were already committed to the Court of Sessions, I am still of the view that "prima facie" there does not appear any ground to believe that they were guilty of an offence punishable with death or transportation for life.

10. In this stage reference may now be made to another unreported judgment of the Supreme Court of Pakistan Ch. Abdul Malik v. The State in Criminal Petition for Special Leave to Appeal No. 162 of 1968, where it was observed :‑

"That bail should never be withheld as a punishment. In cases of non‑bailable offences coming before the Court, 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 A96‑498 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. 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 these grounds and the evidence on which they are rested. 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 transportation for life, as for example where it is a case of accidental and unintended death caused by a simple hurt, the limitation of the Courts, discretion is removed which must then be freely exercised in favour of grant of bail."

In the light of these weighty pronouncements, which I respectfully follow, I am of the view that upon the basis of materials placed before this Court (and the prosecution did not allege that there was any more evidence which was proposed to be examined at the trial Courts, this was an exceptional case in which no reasonable grounds appeared to believe that the applicants were guilty of an offence punishable with death or transportation for life notwithstanding the fact that they have already been committed to the Court of Sessions to stand trial for offences under section 307/142/43, P. P. C.

10. Accordingly, it is ordered that each one of the applicants shall be released on bail in the sum of Rs. 10,000.00 each with one surety each in the like amount to the satisfaction of the Sessions Judge, Larkana.

Bail granted.

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