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Criminal Bail Application No. 235 of 1969, decided on 4th July 1969.

Ss. 497 & 498 Bail‑Relief rests primarily in discretion of Court to be exercised with due care and caution‑Scope of appreciation of evidence limited but not altogether eliminated.

The grant of bail was a relief resting primarily in the discretion of the Court 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. It would be wrong for the Courts to subject the evidence recorded during the inquiry to appraisal or criticism for the trial had not yet opened and it was only for the purpose of commitment but the possibility that the evidence so recorded may persuade the Sessions Court 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. The framing of charge upon taking the evidence referred to in section 208& and examination of accused would furnish a ground for the belief about the guilt of the accused but at the same time in an exceptional case bail could be allowed if the evidence prima facie makes out that reasonable grounds do not appear for believing that he has been guilty. There is incongruity between the scope of the order under section 210, Cr. P. C. and the conditions provided in section 497, Cr. P. C. but the two sections could be reconciled by giving due regard to the order of commitment in arriving at the conclusion whether the conditions laid down. in section 497, Cr. P. C. for granting bail were fulfilled in a given case or not. It is plain enough that deeper appreciation: of grounds and evidence is not permitted but there is no bar in looking at the evidence to see whether reasonable grounds: exist for any such belief, in other words, whether those grounds appeal to a reasonable man or are absurd. As a rule the evidence recorded during the inquiry and the commitment on the basis of that evidence furnish the material to form the belief against the accused but there can be exceptions. So it depends upon the circumstances of each case. It, therefore, follows that although the scope of assessment of the evidence is limited but it is not altogether eliminated as otherwise it is plainly not possible to find out the reasonableness or the absurdity of the evidence upon which the case of the prosecution‑is founded.

Muhammad Aslam and others v. State P L D 1967 S C 539; Ch. Abdul Malik v. The State P L D 1968 S C 349; Nadra v. Jamait Khan and another P L D 1968 S C 310 and Ghulam Farid and another v. State 1969 P Cr. L J 240 rel.

S. 498‑Bail- Only allegation against accused being inciting others to commit crime‑Accused firing no shot during commission of crime nor fact of his being armed at time of occurrence support by First Information Report or Ballistic Expert's opinion‑Held, principle entitling accused to bail attracted in circumstances.

Abdul Aziz v. Bashir Ahmad and another P L D 1965 S C 658 rel.

Chiragh Din and others v. State P L D 1967 S C 340 ref.

Hassanally A. Rahman for Applicants.

Nooruddin Sarki for A. A: G. for the State.

The bail application of the applicants having been reject9f by the learned Sessions Judge, Sukkur the present bail application was filed.

2. The applicants are said to be the landlords. Arbab was sun of Suleman, who is one of the accused persons in 11;cr case. He was in the employment of Dur Muhammad and wag murdered by Kuraro brother of Ali Murad and his relations on 14th October 1967, that is, about 3 months after that murder, Suleman Mazan, Sachal and Saidu went to the house of Akil where Ali Murad was sitting under a tree. Suleman and Saidu had hatchet while Mazan and Sachet had guns. Ali Murad apprehending danger tried to run away, but Mazan fired a gun shot at him and he fell down. Then Sachal fired another gun shot at him while Suleman and Saido gave him hatchet blows. There is further allegation that Dur Muhammad applicant was instigating other accused to kill him. This incident was witnessed by Haleem, Ghulam and Ali Muhammad. On account of fear they could not go near the culprits who after murdering Ali Murad went away raising slogans. The first report was lodged on the same day. The police after usual investigation presented an interim challan in which Saido, Bakhto and Jio were shown in custody, while Suleman and Mazan were shown as absconders. The names of the present two applicants were not mentioned in the interim challan, as it appears that during the investigation the case against them was not found to be true. However, subsequently at the time when the final challan was sent to the Court, the names of the present two applicants were also mentioned as accused persons under the directions of the Superintendent of Police.

3. The present applicants later appeared in the Sessions. Court and moved an application for bail. It was heard by the learned Additional Sessions Judge, who was Incharge Sessions Judge at that time in the absence of Sessions Judge. The learned Incharge Sessions Judge by his order dated 2nd August 1968 granted bail to both of them. The learned Incharge Sessions. Judge mainly relied upon the opinion of the S. H. O. who had conducted the investigation and had found that the case against the applicants was not true. It was also observed by him in that order that the present two applicants although armed with guns did not offer any attack. He further observed, "it is rather not at all worthy to believe that these two accused who are zamindars, for the murder of their servant actually, instigated others in order to take revenge of the murder of their servant". Another ground which influenced the learned Incharge Sessions Judge was that the applicant Dur Mohammad was aged about 70 years.

4. During the committal proceedings both the applicants. remained on bail. The committal proceedings were concluded by the learned Resident Magistrate, Shikarpur and he committed Saido, Bakhto, Jio and the present two applicants for offence under sections 148 and 302 read with section 149, P. P. C. to the Sessions Court. Saido was in custody while the remaining four were allowed to continue on bail subject to confirmation by the Sessions Court. In the order of committal the learned Magistrate observed that the names of the accused Bakhto and Jio did not appear in the first report but since they had been correctly picked out by Sanwalo and Miral in an identification test a prima facie case had been made out against them also. He further observed that accused Bakhto led the police party to the place where the accused had stayed night before the incident. A mention had also been made in the committal order that Sanwalo and Miral who had picked out accused Bakhto and Jio in the test were not examined in the committal proceedings as they had been given up having been won over by the accused while the other eye‑witnesses did not implicate them.

5. When the applicants and other two appeared before the learned Sessions Judge, he rejected the bail of the present applicants by his order dated 5th June 1969. In this order the learned Sessions Judge observed that both the applicants had been named in the first report and during the committal proceed ings Nawab complainant, Ali Muhammad and Haleem had all deposed that Sachal Khan applicant did fired gun shot at Ali Murad while Dur Mohammad according to the complainant had instigated, his companions not to spare Ali Murad whereas Ali Mohammad and Haleem stated that Dur Mohammad applicant had kept them away on the point of gun. Both the applicants had produced licensed guns and the Ballistic Expert was yet to be examined at the trial and, therefore, he wished to express no opinion upon this aspect of the case. Then the learned Sessions Judge proceeded to refer to the motive alleged by the prosecution. After making these observations, the learned Sessions Judge criticised the order of the learned Incharge Sessions Judge and observed, "the learned Incharge Seasons Judge was hardly justified in discussing in minute the merits of the case and also taking into consideration the personal opinion of the investigating officer". The principles laid down by their Lordships of the Supreme Court in the case of Muhammad Alsam and others v. Stare (P L D 1967 S C 539) was also adverted to and the following observation of their Lordships was reproduced:‑

"The principles 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 (2) if reasonable grounds appear for believing that the accused has been guilty of an offence punishable with death or transportation for life."

With regard to the age of the applicant Dur Mohammad, the learned Sessions Judge observed that it was true that Dur Mohammad was somewhat old but he appeared to be far from infirm. On the basis of these reasons the bail application was rejected.

Before I proceed to deal with the question whether the applicants are entitled to bail or not, it is necessary to deal with the pronouncement of the Supreme Court which have been quoted before me.

The first authority I will take up is the case of Abdul Aziz v. Bashir Ahmad and another (P L D 1965 S C 658). The bail was sought on two grounds, i.e. the accused was suffering from palpitation and sinking of heart and the only allegation against him was that he had shouted lalkara at the time of alleged crime. These grounds found favour with their Lordships. With regard to the allegation of lalkara it was observed, "death had been caused by violence but Abdul Aziz was charged only with uttering a lalkara. Such allegations are frequently made, and Courts are bound to reject them with equal frequency, in the absence of anything to indicate an earlier conspiracy". This authority was relied upon in a subsequent case, i.e. Chiragh Din and others v. State (PLD1967 S C 340) and it was distinguished. It was indicated that the illness was the main ground which weighed with their Lordships. It was further observed that the precedent case was not to be read as laying down that a lalkara was never to be regarded as a sufficient overt act to establish abatement but it must be considered in the light of the other circumstances. It was further observed that the appreciation of evidence and the drawing of conclusions therefrom in relation to all the circumstances was the functions exclusively of trial Court.

The third authority is in the case of Mohammad Aslam and others v. State which was also relied upon by the learned Sessions Judge. Bail was granted by the High Court advancing a reason that on the assessment of the medical evidence the offence fell under section 325, P. P. C. and not under section 302, P. P. C. The Supreme Court took exception to it and it was observed that an erroneous impression seemed to have crept in lately that in dealing with a bail matter the Court was to form an opinion about the merits of the prosecution case as a whole and lengthy orders were recorded elaborately dealing with the merits of the prosecution case and plea of the defence. It was laid down that the principle applicable to the Inquiry Magistrate who was precluded under section 210, Cr. P. C. from making the assessment of the evidence was equally applicable in construing the clause in section 497(1), Cr. P. C. if reasonable grounds appeared for believing that the accused was guilty of an offence punishable with death or transportation for life.

On account of this authority, an impression seemed to have been created that in the matter of bail the position of the Sessions and High Court was reduced to that of Inquiry Magis trate and the bail could not be granted except when there was no evidence. This impression was also reflected in some of the decisions of the High Court. One such decision came under review and this question was considered. This is the case of Ch. Abdul Malik v. The State (PLD1968 S C 349). It was the case of an accused who was not named in the F. I. R. and was subsequently picked out by one of the eye‑witnesses. He had no connection with the other accused persons interested in killing the deceased and there was an allegation against him that he had procured a false alibi for one of the accused persons. One of the police officers during investigation found the accused to be innocent but ultimately the police made up their mind to challan him. Dealing with this case their Lordships observed as under:

"It must be made clear with all deference to the learned Single Judge that no dictum or judgment of 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 plethora 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 basis essentials governing this matter."

This observation was followed by the basic principle to be observed in considering the grant of bail. It was laid down that the grant of bail was a relief resting primarily in the discretion of the Court 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. Their Lordships after referring to the further limitation in cases involving offences punishable with death or transportation for life, which is that the accused shall not be released on bail if there are reasonable grounds for believing that he has committed such an offence, observed as under:

" Reasonble 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 card to the Court, as it may possess or is expecting to possess as demonstrating evidence available in the case both dirt t and circumstantial. If such grounds exist tending to connect the accused with 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 transportation for life, as for example where it is a case of accidental and unintended death caused by simple hurt, the limitation of the Court's 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."

Yet there is another pronouncement of the Supreme Court in the case of Nadra v. Jamait Khan and another (PLD 1968 S C 310) laying down the same principle. In this case only empty cartridge recovered from the scene of offence was found to match with the gun recovered from another accused and no injury was alleged to have been caused to any one by applicant though he too was said to have fired one or two shots. The learned Sessions Judge who had originally dealt with the bail application, allowed the bail to the accused primarily on the ground that the investigating officer had upheld his plea of alibi and the eye‑witnesses did not attribute to him the injury caused by gun shot to the deceased. The application for cancellation of the bail was file) in the High-Court and it was rejected. Their Lordships of the Supreme Court also did not interfere with that order observing that the order of the trial Judge was affirmed by the High Court and their Lordships would not in exercise of special jurisdiction like to interfere with that order. In this authority Aslam's case was referred to and it was observed that the appraisal of the evidence to determine the nature of tie offence was beyond the scope of section 497, Cr. P. C. It was also observed that it would be wrong for the Courts to subject the evidence recorded during the inquiry to appraisal or criticism for the trial had not yet opened and it was only for the purpose of commitment but the possibility that the evidence so recorded may persuade the Sessions Court 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. The framing of charge upon ‑taking the evidence referred to in section 208 and examination of accused would furnish a ground for the belief about the guilt of the accused but at the same time in an exceptional case bail could be allowed if the evidence prima facie makes out that reasonable grounds do not appear for believing that he has been guilty. There was incongruity between the scope of the order under section 210, Cr. P. C. and the conditions provided in section 497, Cr. P. C. but the two sections could be reconciled by giving due regard to the order of commitment in arriving at the B conclusion whether the conditions laid down in section 497, fir. P. C. for granting bail were fulfilled in a given case or not.

From these authorities it is plain enough that deeper appreciation of grounds and evidence is not permitted but there is no bar in looking at the evidence to see whether reasonable grounds exist for any such belief, in other words, whether those grounds appeal to a reasonable man or are absurd. As a rule the evidence recorded during the inquiry and the commitment on the basis of that evidence furnish the material to form the belief against the accused but there can be exceptions. So it depends upon the circumstances of each case. It, therefore, follows that though the scope of assessment of the evidence is limited but it is not altogether eliminated as otherwise it is plainly not possible to find out the reasonableness or the absurdity of the evidence upon which the case of the prosecution is founded.

The learned State counsel also referred to the authority of the Supreme Court in the case of Ghulam Farid and another v. State (1969 P Cr. L. J 240) in which it was observed that commitment was by itself sufficient to show that a prima facie case existed. It was, therefore, urged that this observation left no room for the choice to grant bail if the case was committed to the Sessions Court in spite of the circumstances which could be considered for the grant of bail. Looking to the various pronouncements of the Supreme Court and the facts of this reported authority I am unable to accept the contention of learned State counsel that this authority placed a complete embargo upon the powers of the High Court after the commitment of the case. It clearly appears that the facts of that case did not justify the grant of bail on merits. Furthermore, the petition was time‑barred. It is a short judgment and their Lordships did not consider it necessary to dwell upon the principle to be followed in matters of bail as this was already dealt with exhaustively in the earlier pronouncements laying down that although the case may have been committed to the Court of Sessions yet the Sessions Judge or the High Court could be pursuaded to believe that reasonable ground did not appear for believing that the accused had been guilty of the offence punishable with death or transportation for life. The main question is whether such a belief exists or not and this is what has been stressed by their Lordships in the various weighty pronouncements. It is true that such instances do not arise frequently but at the same time it cannot be said that this situation never arises. In this connection let me refer to the case of co‑accused Bakhto and Jio against whom there was no evidence yet they were committed to the Court of Sessions to stand trial. If the view of the learned State counsel about the principle laid down by the aforesaid authority of the Supreme Court is accepted, even the co-accused could not be allowed to remain on bail and must rot in jail till the judgment is pronounced on the conclusion of the trial. This would tantamount to nullify the relevant provisions of Criminal Procedure Cod, and the principle laid down by the. Supreme Court in the various authorities relating to bail. No, Court can silently watch an unwarranted situation or find itself nude of the powers to step in to the aid of the person. needing the: protection of law. This situation is inconceivable in: law. As has been observed in P L D 1968 S C 349, the bail should, never be withheld as a punishment. All the attending circumstances must be taken into consideration in order to exercise discretion. So the circumstances serve to provide the necessary guideline rather than the mere fact that the accused has been committed to, the Sessions Court.

In the light of what has been stated, I now take up then bail application filed in the present case. The case of applicant Mohammad Sachal presents no difficulty. He was said to be armed with a gun and actually fired at Ali Murad. The empty cartridge recovered from the scene of crime was found by the Ballistic Expert to have been fired from the gun which was recovered from his possession and was borne on his licence. In view of this evidence it cannot be successfully contended that the applicant is not guilty of an offence punishable with death or transportation for life in order to entitle him to bail. It will be the function of the trial Court to assess the evidence in order to came to the conclusion what value should be attached to it. This Court, while dealing with the bail applications is precluded from the appraisal of the evidence. So the learned Sessions Judge was fully 'justified in not confirming the bail of the applicant.

However, it was urged that the Investigating Officer was inclined to grant clean slate to him and, therefore, it was sufficient to create doubt about the truth of the statements of the witnesses. This opinion of the investigating officer at this stage is irrelevant as observed by the learned Sessions Judge but at the same time wish to make it clear that this may not be taken to be in approval of his criticism of the view entertained by the learned Incharge Sessions Judge. The learned Sessions Judge did not appreciate that when the learned Incharge Sessions Judge was called upon to consider the bail, the only material available before him was what had been placed before him by the Investigating agency and further clarified by the oral statement made by the Investigating Officer. In this connection reference be made to the observation made in the case of Nadra v. Jamait Khan and another which reads, "The belief that the person accused has been guilty within the purview of section 497 would at an early stage rest on the accusation levelled against him, the report under section 173, Cr. P. C. and the evidence which the prosecution proposes to examine, the plea of defence if any raised during the investigation or any other special circumstances appearing in favour of the accused or against the prosecution" Similar observation was made in the case reported in P L D 1968 S C 348. The substance of the observation is that after the case is challaned the Court cannot conduct anything in the nature of preliminary trial but nevertheless to found a belief, the material placed by investigating agency can be looked into and the discretion of the Court is wrested away only after the investigating agency satisfies the Court about the reasonableness of the grounds. In that case too, same situation had arisen and it was observed by the High Court, "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 be 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". In view of these observations it cannot be said that the learned Incharge Sessions Judge committed any illegality or departed from any settled principle in considering the statement of the Investigating officer to evoke unfavourable reaction. Presuming that the bail was wrongly allowed, the error was of judgment and not of conscience.

So far the other applicant Dur Mohammad is concerned, it was urged by his learned counsel that there was no reasonable ground to believe that the applicant was guilty of the offence. To support this it was pointed out by him apart from the disinclination of the investigating officer to challan him, the applicant was a Zamindar aged about 70 years and looking to his status and age it was inconceivable that he would either lead or accompany the relations of his servant to avenge his murder that although he was not infirm as observed by the learned Sessions Judge yet he was not young enough to disentitle him to bail and that the only allegation against him was that he was engaged in inciting others and this allegation was not uncommon as was favourably commented upon in one of the pronouncements of the Supreme Court and even regard to this allegation there was no agreement between the witnesses as two of the witnesses made no such allegation and instead stated that the applicant was busy in scaring the witnesses at the point of gun and to this reference was also made by the learned Sessions Judge in the impugned order. It was further urged by the learned counsel that the learned Sessions Judge relied upon the seizure of the gun from the possession of the applicant and the recovery of the fired cartridge from the scene of offence but he conveniently ignored the fact that no part of firing of gun shot was attributed to the applicant and it was also clear from the committal order that according to the opinion of the Ballistic Expert the empty cartridge matched the gun of the other applicant Sachal Khan and furthermore the F. I. R. itself was conspicuous of the absence of any allegation that he was armed with a gun at the time of occurrence. The gun was borne on his licence and so its possession was not a circumstance against him. Lastly it was pointed out by the learned counsel that the prosecution nursed a grouse against the applicant and was interested in his false implication as he was figuring as main prosecution witness in the case against Kauro and others charged for the murder of Arbab who was his servant and the present crime was said to have been perpetrated to avenge that murder.

I have given anxious thought to the various contentions raised by the learned counsel and I find them not without force and the principle elaborated above entitling the accused to bail is attracted.

To conclude, the bail application of Sachal Khan is rejected while bail is granted to Dur Mohammad on his furnishing P. R. and surety each in the sum of Rs. 25,000 to the satisfaction of the learned Sessions Judge, Sukkur.

Order accordingly.

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