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Petition for Special Leave to Appeal No. 217 of 1971, decided on 12th October 1971.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated the 9th

August 1971, in Criminal Mis cellaneous No. 2003/B of 1971).

Criminal Procedure Code (V of 1898), S. 497-Bail in non bailable offence-Bail not to be withheld as punishment-Not correct to depend on ipso dixit of police regarding guilt or inno cence of accused-Police on investigation holding accused to be guilty but complainant party consistently maintaining that police report was not correct and that real culprits were placed in column No. 2 of challan by Police whereas those prosecuted as accused were innocent-Held, High Court had erred in refusing bail to accused in the circumstances-Penal Code (XLV of 1860), S. 302.

In a murder case the names of persons mentioned in the F, I, R. were placed by the police is column No. 2 of the challan as mere suspects while a number of other persons were charged as culprits. The complainant on the other hand main tained that the police was shielding the real culprits and that the persons charged as accused were innocent. The accused applied for bail but the High Court rejected the petition on the main ground that the police investigation had held them to be guilty.

Held : The High Court did not follow correct principles in refusing bail. It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. Bail in non-bailable cases is a matter within the discre tion of the Courts, which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has commit ted such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecu tion proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.

D. M. Awan, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate-on-Record for Petitioners.

Nemo for the State.

Date of hearing : 12th October 1971.

The five petitioners, namely, Manzoor, Munir son of Janu, Naziri, Munir son of Dilawar and Din Muhammad, are facing an inquiry in the Court of Assistant Commissioner (Magistrate. 1st Class), Minchinabad, on the charges of having committed the murder of one, Yasin, and a murderous assault on his brother, P. W. Rashid. The occurrence, which was the result of a land dispute between the parties, took a toll of two lives, i.e., of Yasin of the complainant party, mentioned above, and Jan Muhammad of the opposite-party, who, according to the complainant's case, fell victim to the shot fired by Yasin aforesaid in self-defence. The F. I. R. in respect of the murder of Yasin, which was lodged by P. W. Rashid, who was also injured in the same occurrence, charged Manzoor only from out of the petitioners. It was alleged there that Manzoor, along with Anwar, Maqbool, Jan Muhammad, Nasim and Saeed, armed with lethal weapons, came to the disputed land, which was in possession of the complainant party and opened the assault, causing death of Yasin and injuring P. W. Rashid. The Police, on investigation, found the participa tion of the persons named in the F. I. R., excepting Manzoor, as doubtful, and placed them as suspects in column No. 2 of the challan, and charged Manzoor and the present petitioners as the real culprits. The complainant party has ever since made representations to the authorities that the police investigation was mis-directed inasmuch as the persons whom the police had placed in column No. 2 of the challan, were the real culprits, and those actually charged by it, i.e., the present petitioners, except Manzoor, were innocent. Anwar, Maqbool, Jan Muhammad, Nasim and Saeed, mentioned above, were granted bail by the High Court on the 26th of May 1971, after it was refused by the learned Sessions Judge, Bahawalnagar. The present petitioners also applied for their bail to the learned Sessions Judge, which was rejected. They then moved the High Court with the same prayer, which has been disallowed by a learned Single Judge, leading to this petition for special leave to appeal.

The learned Single Judge of the High Court has rejected the bail application of the petitioners mainly on the ground that the police, on its investigation, has held them to be guilty, notwith standing that the complainant party has pronounced all of them, except Manzoor, as innocent and that the police case, as put into the Court, has yet to be tested by evidence. We regret we cannot uphold this approach made by the learned Single Judge. It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. As repeatedly held by this Court, bail in non-bailable cases is a matter within the discretion of the Courts, which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transporta tion for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecu tion to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circum stances surrounding the occurrence.

It was forcibly argued by the learned counsel for the petitioners that in the present case the very fact that the complainant in the F. I. R. has charged only Manzoor and not the other 4 petitioners, and he has maintained this stand fn his statement before the committing Court, throws a genuine doubt on the complicity of the four petitioners who have been exonerated by him. The witnesses proposed to be produced against them by the police were brought on the scene at a very belated stage. The police statements of these witnesses and their statements recorded under section 164, Cr. P. C. could have formed a relevant data for the learned Single Judge to come to his conclusion as to the effect of these statements and the categorical deposition of the injured complainant in the case, who gives a clean bill to 4 of the petitioners. At any rate, the obvious contradiction between the version of the complainant and the case as set up by the police shows the need for a further inquiry against these petitioners to entitle them to interim bail on that score.

It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reason able grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.

On the facts and circumstances of this case, we feel that it 4s necessary to consider whether the learned Single Judge in the High Court has correctly followed the principles as enunciated by this Court from time to time, in refusing bail to the four petitioners other than Manzoor. Leave is refused to Manzoor but is granted to the rest of the petitioners. We also allow interim bail to the petitioners, other than Manzoor, to the satis faction of the Assistant Commissioner, Minchinabad.

K. B. A. Leave granted.

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