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Criminal Bail Application No. 156 of 140 decided on 18th June 1956.

, S. 498‑High Court's unfettered discretion to grant bail‑General rule of S. 497 tot binding‑Bail after commitment to Sessions for murder.

Held, that the High Court has unfettered discretion under section 498 and is not precluded from taking special circumst ances into consideration for granting bail. The rule of general law laid down in section 497 Criminal P.C. is not binding on the High Court. The question of granting or refusing bail depends upon the particular circumstances of each case; the mere fact that an offence is punishable with death or life imprisonment is not by itself sufficient to refuse bail under section 498 of the Criminal P. C. The policy of law is to grant bail rather than refuse it in the case of under‑trial prisoners and the Courts should be lenient until they are convicted.

Bail was ordered for three of the accused awaiting trial in Sessions Court on a charge of murder. It was directed, however, that the order would not preclude the Sessions judge from cancelling bail later on sufficient grounds.

Emperor v. Muhammad Panah A I R 1934 Sind 131, Sayed Pir Mohi‑ud‑Din Lal Badshah v. Emperor A I R 1938 Lah. 762, King Emperor v. M. Bashiran and others A I R 1923 All. 479, T(ajendra Nath Chakrabarthi v. King Emperor A I R 1924 Cal. 476, Ram Chand and another v. Emperor A I R 1929 Lah. 284, K. N. Joglekar v. Emperor A I R 1931 All. 504, Emperor v. Krishan Gopal A I R 1933 Lah. 925 and Nisar Ali v. Abbul Hamid and others, A I R 1935 Pesh. 101 ref.

Tufail Ali, for Applicants.

Khamisani, for Additional Advocate‑General for the State.

The applicants in this case have been committed by the Resident Magistrate, Dadu, on a charge under section 302 read with section 120‑B of the Pakistan P. C. to the Court of Sessions, Dadu, for trial for the murder of deceased Ghulam Hussain, who was a Serishtedar to the Mukhtiarkar of Sehwan.

The allegation is that Rasul Bux has killed the deceased by a gunshot at the instigation of Haji Abdul Rehman, an other accused who was stated to be absconding at one time and has now been released on bail on medical grounds.

The learned counsel for the petitioners has not pressed the application of Rasul Bux and has only confined himself to the applications of Haji Muhammad, Haji Morio and Ghulam Hussain. The paper book of the committal proceedings in Revision Application No. 127 of 1956 disposed of today, con tains all the evidence recorded by the Committing Magistrate and also the Committal Order dated 21st March 1956. I have been taken through the evidence of P. W. Haji Muhammad Issa (Exh. 10) and P. W. Muhammad Ismail (Exh. 11). The relevant portion of the statement made by P. W. Haji Muhammad Issa is reproduced below

"I heard voice of' Abdul Rehman Memon coming from western side where there are tombs of his relatives. I heard him saying "Come soon Quetta is about to come. Finish ' my enemy anyhow today." I looked in that direction and saw Haji Morio, Ghulam Hussain Bhand and Ramlo Jat and Haji Abdul Rehman. Haji Abdul Rehman passed on something to Ramlo Jat. I cannot say what was this thing that was passed on to Ramlo Jat by Haji Abdul Rahim."

The relevant portion of the statement of P. W. Muhammad Ismail against the applicants is as follows

"On 5th October 1955 Wednesday I had gone to the factory of Haji Abdul Rehman to know if machine was working. I saw Haji Morio, Ghulam Hussain Bhand, Ramlo Jat and Haji Muhammad and Acher Katar sitting with Haji Abdul Rehman and were speaking with each other in whispers. As they saw me they stopped talking. I made inquiries about machine. They then said that it was not working on that day. I went away. On 7th October 1955, Ghulam Hussain was murdered at Sehwan Rahway Station. Police had examined me."

The learned counsel for the applicants has stated that the evidence against his clients is very meagre and weak and there is no likelihood of their conviction on this evidence. He has also referred me to Emperor v. Muhammad Panah (A I R 1934 Sind 131), a judgment of the Division Bench of the Judicial Commissioner's Court in Sind, and also urged that in special circumstances the High Court has got the power to release accused even in non‑bailable cases. One of the circumstances taken into con sideration for releasing the accused in that case was that the evidence against him was of an accomplice who had been admitted to a pardon ; that was tainted evidence and required corroboration. It is urged that the evidence as it stands today does not mention at all that the applicants conspired with the other accused for the murder of the deceased.

I have also considered other cases on this point. In Sayed Pir Mohi‑ud‑Din Lal Badshah v. Emperor (A I R 1938 Lab. 762), it is laid down that "although the High Court could admit to bail a person who has been committed on serious charges, yet in a case where after an exhaustive enquiry the accused has been com mitted by a competent Magistrate on grave and serious charge relating to non‑bailable offences, the High Court should not lightly enlarge him on bail."

When I heard this matter I was inclined to release the applicants Nos. 2, 3 and 4 on bail, but after reading the last authority I thought it advisable that the whole case law on this subject should be reviewed and therefore issued notice to the counsel for the applicants and also to the Additional Advocate General to satisfy me whether in a case where the accused have been committed for trial to the Sessions Court, it would be expedient and desirable for this Court to scrutinise the evidence and then release them on bail. Mr. Tufail Ali Rehman, in pursuance of this notice, and Mr. Khamisani on behalf of the Additional Advocate General have appeared again today before me and the question has been discussed at length from this point of view. Mr. Tufail Ali Rehman, in addition to the authorities cited by him on the last occasion has relied on King Emperor v. M. Bashiran and others (A I R 1923 All. 479), Najendra Tjath Chakrabarthi v. King Emperor (A I R 1924 Cal. 476), Ram Chand and anothers v. Emperor (A I R 1929 Lab. 284), and K. N. Joglekar v. Emperor (A I R 1931 All. 504). He has also referred me to Criminal Bail Applications Nos. 492 of 1955, 91 of 1956, 432 of 1955 and 280 of 1953 of this Court to satisfy me that in murder cases this Court has granted bail even where committal proceedings have already taken place and the applicants have been committed for trial. The Bail Applications referred to above do not contain a discussion on the question under consideration. The last Criminal Bail Application, decided by my learned brother Muhammad Bakhsh, J., however, indicates that he did go into the evidence produced before the Committing Magistrate and, after ex amining the evidence, he ordered the release of the applicants on bail. There is no doubt that the High Court unfettered discretion under section 498 and is not precluded from taking special circumstances into consideration for granting bail. In fact the rule of general law laid down in section 497 Criminal P. C. is not at all binding on this Court. The question, of granting or refusing bail depends upon the particular circumstances of each case ; the mere fact that an offence is punishable with death or life imprisonment is not by itself sufficient to refuse bail under section 498 of the Criminal P. C.

The policy of law is to grant bail rather than refuse it in the case of under‑trial prisoners and the Courts should be lenient' until they are convicted. It is the glorious principle of, criminal justice that an accused is to be considered innocent till he is found guilty. The cases cited today by the learned Counsel for the applicants, particularly the case reported in Nagendra Nath Chakrabarthi v. King Emperor lay down the following principle of law in considering the question of bail "The test to determine whether bail is to be granted or not is applied by reference to the following considerations; the nature of the accusation, the nature of the evidence, the severity of the punishment which conviction will entail, the character, means and standing of accused. The dis cretionary power of the Court to admit to bail is not arbit rary but is judicial"

This case has been followed in a later authority reported in K. N. Joglekar v. Emperor (A I R 1931 All. 504) by a special Bench of the Allahabad High Court consisting of the eminent judges Sulaiman, Young and King JJ. The principle laid down in the, Calcutta ruling has met with their approval. In Ram Chand and another v. Emperor (A I R 1929 Lah. 284) the case reported in Najendra Nath Chakrabarthi v. King Emperor (A I R 1924 Cal. 476) was followed, and some of the accused challaned for trial under section 124‑A Criminal P. C., were released on bail, following the above principles. In this connection my attention has also been drawn to Emperor v. Krishan Gopal, (A I R 1933 Lah. 925), and also to Nisar Ali v. Abdul Hamid and others (A I R 1935 Pesh. 101). The principle of law enunciated in these authori ties is that if the case of the accused is on the broader line, then that is a sufficient circumstance to release them on bail. Mr. Khamisani appearing for the Additional Advocate General has also impressed upon me that the view enunciated in these authorities is correct and has been followed in this Court also.

After considering the above mentioned authorities I am of the opinion that this is a fit case in which the accused who are being tried under section 302, Pakistan P. C., and have been committed for trial by the committing Magistrate to the Sessions Court, should be released on bail. I will not make any observations to prejudice the case of the prosecution except that this is a fit case in which applicants Nos. 2, 3 and 4 may be released on bail.

It is, therefore, ordered that applicants Nos. 2, 3 and 4 may be released on bail in the sum of Rs. 20,000 each, with two sureties in the like amount to the satisfaction of the Sessions Court. This, however, will not preclude the learned Sessions judge at a later stage from cancelling the bail granted by this Court on sufficient grounds.

A. H. Applicants 2, 3 & 4 released on bail.

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