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Criminal Bail Application No. 113 of 1973, decided on 5th March 1973.

‑-S. 497 read with S. 210--Bail‑Existence of grouted for commitment‑Cannot be equated with reasonable belief that accused is guilty of offence punishable with death or transportation‑‑ commitment although prima facie evidence sufficient to put a person on trial, still High Court not precluded from entering into question whether grounds exist for believing accused was guilty of an offence punishable with death or transportation Petitioner firing at deceased only after deceased had killed two persons of petitioner's party‑Accused admitted to bail, in circumstances.

Ahmed Bux's cats 1969 S C M R 266 ; Nadara v. The Seats P L D 1968 S C 310 and Abdul Rashid v. The ,State P L 1) 1972 S r: 295 ref.

A. .S. Pirzada for Applicants.

Murtaza Hussain for the State.

Date of hearing: 5th March 1973.

This is a bail application on behalf of Hussain Bux and Amanullah, who alongwith five others have been committed to the Court of Session at Khairpur Mirs to stand trial far offences under section 302/393/148/149, P. P, C.

The remaining five accused are already on bail granted to theta by the Sessions Court.

Admittedly there is a dross‑case add the position Is further clear that in the transaction which relates to this case,. two persons namely Amanullah Phulpota and Amir Bux Phulpota, of the side of the applicants, died. The (darned Sessions Judge while (leafing with this application has summed up the respective part of violence between the two parties in the following Words. That portion from the order is reproduced hereunder:‑

"Soofi Sibtain is sail to have fired a shot at the accused/applicants party which resulted in the death of two persons namely Amir Bux and Amanullah Phulpotas who were also included in the party of the accused persons. It .is alleged that applicant Amanullah son of Rakhial also fired at the complainant's father. Hussain Bux accused is also said to have fired a shot at the father of the complainant namely Soofi Sibtain which resulted in the death of the latter."

The two eye‑witnesses Kausar Hussain and Murad, who admittedly are the servants of the party of the deceased have stated in clear terms that it is Soofi Sibtain, the main person in the opposite‑party who first fired a shot killing Amanullah and, with the next shot killing Amir Bux. It is then in the evidence of these prosecution witnesses that petitioner Amanullah fired a shot at Soofi Sibtain. Whether this shot did injure Soofi Sibtain is also obscure but one of the witnesses states that the shot hit Soofi Sibtain in the arm.

Without going deep into the facts of this caw, as the same arc awaiting trial before the Sessions Court, I have been invited by Mr. A. S. Pirzada to look to the broad aspects of the prosecution case. The picture that has clearly emerged is that the party of the accused in this case were first shot at and two persons were killed and it was thereafter that Amanullah fired a gun which at least injured Soofi Sibtain.

The State counsel Mr. Murtaza Hussain has invited my attention to two cases reported in 1969 S C M R at pages 80 and 266. In both of these cases petitions for special leave had been refused by the Supreme Court on the ground that commitment of an accused to the Court of Session was itself sufficient to show existence of a prima facie case against the accused. In fact in the case of Ahmed Bux (1969 S C M R 266) their Lordships of the Supreme Court expressed that it was not for the Court at the stage of bail to evaluate the evidence but merely to consider as to whether upon the material on the record such grounds which were believed have been made out or not. Their Lordships further expressed that the criterion is whether in absence of evi dence in rebuttal, an accused could be found guilty or not. On the other hand Mr. A. S. Pirzada, the learned Advocate for the applicants has invited my attention to the case of Nadara v. The State (P L D 19685 C 310) in which case their Lordships of the Supreme Court considered the cases of Muhammad Aslam and. others v. The State (P L D 1967 S C 539) and Muhammad Ayub v. Muhammad Yaqub (P L D 1966 S C 1003).‑

In the above case Mr. 'Justice Yaqub Ali considered the scope of section 210, Cr. P. C. in relation to the powers of the Court under section 497, Cr. P. C. and observed as follows:‑

"As seen above it would be wrong for the Courts to subject the evidence recorded during the inquiry to an appraisal or criticism for the trial has not yet opened and poses of determining only whether the person accused of an offence punishable with death or transportation for life should be committed for trial and declaring with what offence the accused is charged. It is for this reason that the examination o the prosecution witnesses before the Inquiry Magistrate is usually brief and often not subjected to cross‑examination by the defend counsel. Similarly the full and proper plea of the accused is reserve for the trial. However, the possibility that the evidence recorded during tire inquiry may persuade the Sessions Judge car the High. Court to believe that reasonable grounds do not appear for believing that .the person accused has been guilty cannot be altogether exclude."

The last sentence is significant as his Lordship has concluded that the evidence recorded during the inquiry may persuade the Sessions Judge and High Court to believe that reasonable grounds do not appear for believing that the person accused has been guilty cannot be altogether excluded.

The various cases in relation to bail decided by their Lordships of the Supreme Court and referred to above alongwith another case of Maula Bux and 3 others v. The State (1971 S C M R 196) were again considered by their Lordships of the Supreme Court in the case of Abdul Rashid v. The State (P L D 1972 S C 295). In that case one of the questions formulated for decision by the Pull Bench of the Supreme Court is with regard to scope of section 497, Cr. P. C. in relation to cases that have been committed. The question that is referred is as follows:‑

"What precisely is the scope of the phrase 'the Magistrate is satisfied that there are sufficient grounds for committing the accused for trial' appearing in section 210; subsection (1) of the Cr. P. C., as contrasted with the scope of the expression. 'If there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or transportation for life' occurring in section 497 of the Cr. P. C. " .

My attention has also been invited by Mr. A. S. Pirzada to an order passed by my Lord the Chief Justice of the High Court in Criminal Bail Application No. 394/72. In this case my' Lord the Chief Justice has expressed as follows:‑

"I am conscious of course that at this stage ‑of the case it would be altogether improper for me to enter into any deep scrutiny of the evidence but I cannot accept the contention of learned counsel for the State that I am not entitled to go to the evidence at all. I think I am under a duty to do so provided that the standard which I keep in mind while examining the evidence is merely to decide whether or not any reasonable grounds 'exist for the grant of bail and not the final measure of adjudication upon the evidence."

'Caking the scope of section 497, Cr. P: C: in relation to the question a grant of, bail in cases after committal, my humble view is that although commitment is prima facie proof of evidence sufficient to put a person on trial, still the High Court would not be precluded or barred from entering the question with regard to facts in so far as the question relates to ate inquiry, to find out whether grounds exist for coming to the belief that the accused is guilty for an offence punishable with death or transportation --To that limited extent reference even to evidence may not be improper.

On the other hand. holding that on account of mere commitment a person must invariably be refused bail would open the gates to injustice in various cases. After all the words in section 210, Cr. P. C. indicate, that there should be ground for commitment, but the mere existence of ground for commitment cannot be equated with reasonable belief that the accused is guilty of an offence punishable with death or transportation.

Applying the above principle to the instant case, I find that the petitioner Amanullah had fired at deceased Soofi Sibtain only after the latter had killed two persons of his party. He surely had an apprehension of death and ‑had a right of private defence. This is disclosed prima facie by the prosecution evidence that has been recorded. Even if this evidence goes unrebutted, still the benefit of these admissions will clearly extend to petitioner Amanullah. The case of petitioner Hussain Bua is distinguishable: The evidence discloses that after Amanullah fired at Soofi Sibtain, Hussain Bua, went up to him and disarmed him of the revolver that he was carrying, It is alleged that thereafter Hussain Bux caused injuries to Soofi Sibtain. I would for that reason distinguish the case of Hussain Bug from the case of Amanullah.

In the result, petitioner Amanullah shall be released on bail in the sum of Rs. 10,000 with one surety and P. R. in the like amount to tile satisfaction of the Sessions Judge, Khairpur Mirs.

The application of Hussain Bux is rejected.

Whatever I have expressed in regard to the case is tentative and only in reference to the question of bail of the petitioners. The learned Sessions Judge shall not take into consideration my observations relating to merit of the case and shall arrive at his own independent conclusions as to guilt or innocence of the accused.

Order accordingly.

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