Find a Lawyer

Criminal Miscellaneous No. 910 of 1974, decided on 7th February 1975.

-- S. 497/498-[Murder case]-Bail, principle of. In cases of murder the- normal rule is refusal to grant bail and on merits bail could be granted only in such cases where no - reasonable grounds exist for believing that the accused is guilty of the offence. The words used in the Criminal Procedure Code are "reasonable ground" and not proof and the material which a Court while granting bail will look into is the First Information Report, the medical report, section 164 Cr. P. C. statements and Police statements. It would not be permissible for the Court to enter into fine questions of evaluating respective pleas of self defence at a premature stage when there is no evidence available on the record. There may be cases where such right of private defence would be glaringly visible on the face of the initial material placed before the Court, but those cases would indeed be exceptions. On the other hand there may be cases where minor or trivial injuries may have been caused to the accused party. In such cases however, the Court is not permitted to embark upon an enquiry and record findings in relation to right of private defence at a premature stage when no evidence has also been brought on record.

-- Bail, cancellation of-Accused named in F. I. R. and specific part assigned to them-Arrest of accused at spot and presence of injuries on persons of accused indicating their presence at place of occurrence-Independent witnesses under S. 164, Cr. P. C. clearly implicating accused-Reasonable grounds believing accused guilty of murder, held, exist-Bail cancelled in circumstances-Penal Code (XLV of 1860), S. 302.

Muhammad Hayat Junejo for Applicant.

Zia G. Shaikh for Respondents Nos. 1 to 3.

Sulleman Memon, Addl. A.-G. for the State.

Date of hearing : 4th February 1975.

By the present application petitioner Imdad Ali seeks to challenge an order under section 497, Cr. P. C. passed by the Additional Sessions Judge, Sukkar, whereby the three respondents, Shahabuddin, Munawar and Saleem were granted bail in a case of murder. The incident in the case occurred on 17-10-1974 at about 3-15 a.m. in front of Madina Hotel at Sukkur. Petitioner Imdad Ali is working at that hotel. At that time an altercation, which I must say was on account of a very minor dispute, occurred between the respondents/accused Shahabuddin, Munawar and Saleem on the one hand and deceased Sarfraz and injured Baboo Saeed on the other. After some hot words were exchanged, the accused Persons made an attack on the party of the deceased and complainant. The accused used knives and it is stated in the First Information Report that Shahabuddin gave a knife blow on the chest of Baboo and such injury has been found to be grievous by the Medical Officer. It is also stated in the First Information Report that Munawar and Saleem caused injuries to deceased Sarfraz with a knife on the chest and such injury resulted in death of Sarfraz, which occurred within an hour of the incident. Since the incident had occurred at a hotel and the time of occurrence was "Sehri" time in the month of Ramazan, several per sons including Ahsan Muhammad, Sher Muhammad, Muzaffar, Imdad Ali and Sarfraz saw the incident, and from among the three accused persons, Shahabuddin and Saleem were arrested on the spot. In fact Shahabuddin also lodged a First Information Report after an hour of the incident alleging that an incident had occurred in which the complainant party including the deceased had taken part on one side and the three accused persons on the other. On being examined by the Medical Officer it was found that Shahabuddin had a skin deep incised wound on the thigh and a contusion on the outer angle of right eye. Saleem was also examined by the Medical Officer. He too had a contusion measuring " x 1/8" on the lower lip. During the in vestigation section 164, Cr. P. C. statements of eye-witnesses Sher Muhammad, Ahsan Muhammad, and Syed Muzaffar Shah were recorded and each one of these witnesses had clearly spoken about the assault on deceased Sarfraz and injury to Baboo. After the case was sent up for committal enquiries, an application for bail was made before the Magistrate who rejected the same and, thereafter, the accused persons moved an application for bail which was heard by the Additional Sessions Judge, Sukkur, who granted bail to the three accused persons.

2. The learned Advocate for the petitioner has seriously contended be fore me that in the present case the accused were named in the First Infor mation Report, they were implicated by the witnesses who had seen the incident, that the accused themselves having lodged the report, a circums tance came into existence which would add weight to the prosecution case. The learned Advocate has also taken me through the order passed by the Additional Sessions Judge and I have been poorly impressed by the same. The learned Additional Sessions Judge has in total disregard of pronounce ments of superior Courts embarked upon a factual enquiry in regard to existence of right of private defence to the accused persons at such a pre mature stage. The learned Additional Sessions Judge has additionally come to the conclusion that an injury on the chest of the deceased which was cavity deep was not such an injury from the existence of which an inference of intention to commit murder of the accused could be drawn. The learned Additional Sessions Judge has also stated that "admittedly" the complainant party was armed with sharp and blunt weapons. I fail to understand from what material such an admission was spelt. What is more that in a lengthy order which the learned Additional Sessions Judge thought fit to record, he has virtually weighed the two versions and has recorded a tentative conclu sion that the accused persons had a right of private defence.

3. In cases of murder the normal rule is refusal to grant bail and on merits bail could be granted only in such cases where no reasonable grounds exist for believing that the accused is guilty of the offence. The words used in the Criminal Procedure Code are "reasonable ground" and not proof and the material which a Court while granting bail will look into is the First Informa tion Report, the medical report, section 164, Cr. P. C. statements and Police statements. It would not be permissible for the Court to enter into fine questions of evaluating respective pleas of self-defence at a premature stage when there is no evidence available on the record. There may be cases where such right of private defence would be glaringly visible on the face of' the initial material placed before the Court, but those cases would indeed be exceptions. On the other hand there may be cases where minor or trivial injuries may have been caused to the accused party. In such cases however. the Court is not permitted to embark upon an enquiry and record findings in relation to right of private defence at a premature stage when no evidence has also been brought on record. The present order appears to be suffering from such a defect.

4. Coming to the merits of the case, it has not been contended by Mr. Zia G. Shaikh, the learned Advocate appearing for the accused that any person has been innocently roped in or was not present. In fact the accused persons are named in the First Information Report and specific parts have been assigned to them in relation to the transaction resulting in death of Sarfraz and injuries to Baboo. Two of the three accused persons were arrested on the spot. There is a counter-report also. The presence of minor injuries on the person of the accused is also indicative of the fact that they may have taken a part in the transaction. Statements of independent witnesses under sec tion 164, Cr. P. C. are also available on the record and in such statements the accused are definitely implicated. Without recording any opinion as to the credibility of such pieces of evidence that were available against the accused persons, I have no hesitation in stating that tangible grounds do exist even at present on the record from which a reasonable inference can be drawn that this is not a case where it could be said that there are no reasonable grounds to believe that the accused are guilty of the offence of murder.

5. In these circumstances I set aside the order of the Additional Sessions Judge and cancel the bail granted to respondents Shahabuddin, Munawar and Saleem. The three accused persons shall be forthwith arrested and remanded to custody.

Bail cancelled.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.