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Criminal Miscellaneous No. 350 of 1970, decided on 18th March 1970.
S. 497 - Bail in murder case-Eye-witnesses, before committing Magistrate, assign ing definite part to accused-petitioner Contention that accused was entitled to bail for during course of investigation he had been found innocent by police-Held, does not merit consideration in circumstances of case.
Ghulam Farid and another v. State 1969 P Cr. L J 240; Nadra v. Jamait Khan P L D 1968 S C 310 and Abdul Aziz v. Bashir Ahmad and another P L D 1966 S C 658 ref.
S. 497(1), proviso-- Bail in murder case-Accused-petitioner stated to be 75 years of age and infirm in health-Nature of ailment making petitioner infirm not stated in petition nor any medical examination conducted to determine age or infirmity of petitioner-Old age alone, held, would not bring case within ambit of proviso to S. 497(1).
Raja Muhammad Anwar, Ghulam Mujtaba and Muhammad Nawaz Cheema for Petitioners.
Mian Nazir Akhtar for the State.
This is an application under section 498 of the Criminal Procedure Code for grant of bail by Baja and Ahmad, sons of Suleman and Sarang alias Saroo, son of Jewna, who have been sent up along with two others, namely, Shahadat and Rajada for the murder of Ahmad and Allah Ditta deceased and making murderous assault upon Ghulam and Jagdev P. Ws.
2. The motive for the alleged occurrence, in which two persons lost their lives is stated to be, that Shahadat accused was suspected of the commission of theft of buffaloes of Thiraj P. W. The latter pressed the former for their restoration. Shahadat accused, however, produced Bahadur Loona, brother of Ghulam P. W. as his surety. Sometime after this incident, Thiraj P. W. recovered his buffaloes from one Rehana Luk, who informed him that the same had been made over to him by Shahadat accused. Since Bahadur, brother of Ghulam P. W. had stood surety, Thiraj pressed him to pay the surety money. However, in lieu thereof, Bahadur gave him a buffalo. The matter did not end there. Lal P. W., a nephew of Bahadur, filed a suit in the local Union Council, with regard to the recovery of the amount (the price of the buffalo) from Shahadat accused and obtained a decree both against Shahadat and Sarang accused. This was the bone of contention between the parties.
3. Shahadat, Rajada, Baja and Ahmad accused are brothers. Sarang accused is their uncle. It is alleged, that on account of the aforementioned grudge, these accused attacked and injured the two deceased persons, who subsequently died, and the two injured P. Ws. on the 17th of October 1968, in the evening, when they were going towards the dhari from the Chak. Rajada and Baja had guns, Ahmad had a takwa and the remaining two accused, namely, Shahadat and Sarang bad lathis. Rajada is said to have fired at Ahmad deceased and Baja at Allah Ditta deceased. Rajada also fired and injured Ghulam P. W., Ahmi and Sarang gave beating to Ghulam P. W. with their respective weapons, while Shahadat gave injuries to Jagdev.
4. When the accused were facing inquiry in the Court of a Magistrate at Chiniot, two of them, namely, Baja and Ahmad applied to the learned Additional Sessions Judge, Jhang, for grant of bail. Their petition was dismissed on 22nd October 1969. By then it appears, that most of the evidence had been recorded by the committing Magistrate. However, when the aforesaid accused Baja and Ahmad approached this Court on 19th January 1970, they were joined by their third co-accused Sarang alias Saroo.
5. During the course of the pendency of the petition in this Court, it was brought to my notice, that the petitioners and their co-accused had already been committed to the Court of Session to stand their trial for murder and attempted murder. I, thereupon directed Mr. Ghulam Mujtaba, learned counsel for the petitioners, who had given this information, to produce a copy of the commitment order. The same has been produced and has been placed on the file.
6. Raja Muhammad Anwar, learned counsel for the petitioners, contended inter alia:
(1) That the Investigating Officer having come to the con clusion, during the course of investigation, that Baja and Ahmad petitioners were innocent and had not taken part in the occurrence, in question, mentioned their names in column No. 2 of the challan;
(2) that it was more probable, that Rajada accused, who was alleged to have been armed with a gun and who was alleged to have fired at Ahmad deceased might have also fired at Allah Ditta deceased and, therefore, the possibility cannot be excluded, teat Baja had been falsely involved to have fired at ,,. Allah Ditta;
(3) that none of the injured persons bore any injury inflicted with a sharp-edged weapon, and thus Ahmad's implication in the instant case becomes improbable for he is stated to have been armed with takwa ; and
(4) that Sarang alias Saroo is an old man of about 75 years of age. He is infirm and is, therefore, not likely to have taken any part. He seems to have been falsely roped in on account of his relationship with the other accused.
7. The petition was vehemently opposed by Mian Nazir Akhtar, Advocate appearing for the State. He contended, that the petition merited dismissal on the short ground, that about three or four days after its filing in this Court the petitioners along with their co-accused were committed by the Resident Magistrate, Chiniot to the Court of Session to stand their trial. They were committed on 22nd January 1970. In support of his contention he relied on Ghulam Farid and another v. State (1969 P Cr: L J 240) in which their Lordships of the Supreme Court while repelling the contention of learned counsel for the peti tioner, who contended, that mere commitment was not by itself sufficient to make it appear to the Court that reasonable ground existed for believing, that the petitioners had been guilty of an offence punishable with death or transportation for life within the meaning of section 497, Cr. P. C. observed:
"We are unable to agree with this. Commitment is by itself sufficient to show that a prima facie case exists."
8. In reply to this contention, learned counsel for the peti tioners drew my attention to the case Nadra v. Jamait Khan (P L D 1968 S C 310). In this case the High Court had refused to interfere with the order of the trial Judge granting bail to the respondent, charged with offences under section 302 read with section 149 and section 148 of the Pakistan Penal Code. While dealing with this case, their Lordships were pleased to observe:
"The scope of an order of commitment under section 210 of the Code of Criminal Procedure no doubt differs from the conditions provided in section 497 that there appear reasonable grounds for believing that he has been guilty' but ordinarily the framing of a charge upon taking evidence referred to in section 208 and examination of the accused would furnish a ground for such a belief. At the same time the person committed for trial may in an exceptional case be allowed bail if the evidence produced before the Inquiry Magistrate prima facie makes out that reasonable grounds do not appear for believing that he had been guilty. There is a 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 purposes of bail, reasonable grounds do not appear for believing that he has been guilty. This is consequent upon the difference in the provisions of section 210 and section 497, but the two sections can be reconciled by giving due regard to the order of commitment in arriving at the conclusion whether the conditions provided in section 497 for granting bail are fulfilled in a given case or not."
As I understand this case, their Lordships did not exclude the possibility, that a person, though committed to the Court of Session for an offence punishable with death or transportation for life, could still be released on bail, provided he could show from the evidence, that the conditions laid down under section 497 for granting bail were fulfilled. In the aforesaid case before their Lordships, it was established, that only one empty cartridge, which was recovered from the spot, was found to match the gun recovered from one Abdul Ghani accused and no injury was alleged to have been caused to any one by the respondent, though he too was said to have fired one or two shots.
9. The other case to which the reference was made by the learned counsel for the petitioners is that of Abdul Aziz (P L D 1966 S C 658) in which their Lordships upheld the order of the learned Additional Sessions Judge granting bail to the accused, which had been cancelled by the High Court. This judgment is of no avail to him, because although the death had taken place Abdul Aziz had only been charged with uttering a lalkara. Their Lordships observed, that such allegations were frequently made, and the Courts were found to reject them with almost equal frequency, in the absence of anything to indicate an earlier conspiracy. Bearing in mind the aforesaid authorities, I would now advert myself to the contentions of learned counsel for the petitioners. His first contention, that Baja and Ahmad petitioners are entitled to bail for during the course of investigation they had been found innocent by the police, does not merit consideration for the simple reason, that before the committing Magistrate eye-witnesses have assigned definite part to these accused. It was stated by them in connection with Baja, that he had fired with his gun at Allah Ditta.
10. The second contention of the learned counsel too is without force. Merely because Rajada bad also fired with gun, while Baja did not, no inference can be drawn from it, that he fired at two deceased persons in face of the positive evidence given by the prosecution during the inquiry. Similarly the third contention raised by the learned counsel with regard to Ahmad accused has no value, because the evidence is, that though armed with a takwa, he did not use it from its sharp end. If at this stage, I enter into the realm of conjectures, then there will be no end to it, and I would be deciding the fate of the case before it is heard by the learned trial Judge.
11. Last contention of the learned counsel is with respect to Sarang alias Saroo accused. He is stated to be 75 years of) age and infirm in health. He has not been examined by a medical expert with regard to the determination of his age or infirmity. In fact there is no allegation. whatsoever in the petition, as to what is the nature of his ailment, which has made him infirm. He might be old, but that alone would not bring his case within the ambit of proviso to subsection (1) off section 497.
12. Having considered the case from all aspects, I am of the view, that the petitioners, who have already been committed to the Court of Session to stand their trial on a charge of murder and attempted murder, are not entitled to the grant of bail. There is no merit in the petition and the same is hereby dismissed.
S. Q. Petition dismissed.
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