Find a Lawyer

Criminal Petition for Special Leave to Appeal No. K/10 of 1979, decided on 16th April 1979.

-----Ss. 497 & 498‑Bail‑Radiological report, referred to in order of High Court refusing, to grant bail, not produced by State Counsel but only photo-stat copies of two such reports produced by complainant before Supreme Court‑Reports stating X‑Ray examination suggesting presence of foreign body (bullets)‑Neither of such reports possibly leading to inference drawn by 'High Court of complainant having suffered an injury paralysing him or being so serious as to disable him from sending one of his two men, accompanying him, to lodge F. I. R. immediately‑Such circumstance very relevant to bail application‑‑ Observations in High Court's order regarding plea of alibi, as raised by accused, being "supported by witnesses who could easily 'and conveniently have been procured and are not of unquestionable status ‑ To accept their version at this stage would render the prosecution case doubtful and result in miscarriage of justice"‑‑Give preference for prosecution case is a manner likely to prejudice case of parties in trial Court‑Courts to give only tentative appreciation of evidence produced by parties in bail applications and not to give conclusive finding about material produced‑Further observation in impugned order, namely : "Admittedly there .is deep‑rooted previous enmity between parties due to which the injured was fired upon"‑ Could easily be misread by trial Court as a finding of High Court about petitioner's guilt‑High Court, held, ignored evidence and not followed correct principles for assessing material produced by parties in bail application‑Impugned order set aside and bail allowed‑ Constitution of Pakistan (1973), Art. 185(3).

Muhammad Hayat Junejo, Senior Advocate and Noor Ahmad Noori, Advocate on‑Record for Petitioner.

Usman Ghani, Advocate‑General (Sind) and M. L Memon, Advocate‑on -Record for the State.

Date of hearing : 14th April, 1979.

‑This petition for leave has been filed against an order of a learned Judge of the Sind High Court by which the learned Judge dismissed the petitioner's application for bail.

The petitioner is being tried under section 307 of the Pakistan Penal Code for having fired with a pistol at one Pir Mahmoodul Hasan Jan Sarhindi. The occurrence took place on 20‑10‑1978 at about 10‑30 a.m. in front of the Allied Bank of Pakistan, Garikhata, Hyderabad. Although Pir Mahmoodul Hasan Jan Sarhindi, the complainant (hereinsafter called the complainant), was with two of his men, Gul Muhammad and Maherullab Khan Marri, and although the Police Station was only two furlongs away, no attempt was made to lodge the F. I. R. immediately. And, further, as the shot had been fired at the complainant from behind, the complainant's story is that after being hit, he had turned round and managed to see the petitioner running away with a pistol. Further, according to the complainant, after being hit, his men took him to the local hospital, and the F. I. R. was recorded two hours later at the hospital where the complainant was being treated.

The petitioner was arrested three days later, but no recovery was made from him, and, on the other hand, he pleaded an alibi, and even the learned Advocate‑General conceded that this plea was supported by the evidence of six persons, whose statements had been recorded by the Police. Additionally, whilst the complainant's story is supported by that of his men, Gul Muhammad and Mehrullab Khan Marri, it is not disputed before us that the Police had recorded the statements of many persons other than the said Gul Mohammed and Mehrullah Khan Marri, as the occurrence had taken place at a very crowded place, and even the learned Advocate‑General admitted that none of these other statements implicated the petitioner. 1n this background, it is not surprising that the petitioner had sought bail, but as his efforts were unsuccessful in the lower Courts, he had filed an application for bail in the High Court on 17‑12‑1978, and at was this application which has been dismissed by the impugned order.

In support of the, application, Mr. Junejo, who had appeared before the learned Judge, had relied on the material in support of the plea of alibi to which we referred earlier. Learned counsel had also stressed the fact that one of the witnesses supporting the complainant, Gul Muhammad, who was a chauffeur, had not identified the petitioner. Finally, Mr. Junejo had pressed the application for bail on the ground of long‑standing enmity between the parties, a circumstance which was admitted to some extent in the F. I. R. and on the further ground that some of the other persons, who had been examined by the Police and had not implicated the petitioner by name, had filed affidavits to the evidence that they knew the petitioner and that the petitioner was not the person who had fired the shot at the complainant.

However, the learned Judge was not impressed by these submissions, and in reaching this conclusion, he relied on the fact of enmity between the complainant and the petitioners. Next, as to the material produced by the petitioner in support of his plea of alibi, on the whole, it seems to us that he was not impressed by it. And, on the other hand, he accepted the plea of the complainant that the injury to him was so serious that the complainant "is bed ridden in the hospital and is paralysed due to the injury at the vertibral region. The radiological report has also been filed". Accordingly, he dismissed the bail application with the observation "admittedly there is deep‑rooted previous enmity between the parties, due to which the injured was fired upon".

As the complainant's version of the occurrence is supported by that of Gul Muhammad and Mehrullah Khan Marri, the learned Advocate‑General submitted that we should not interfere with the impugned order, because it was a discretionary order, and it was not a case in which it could be said that refusal of bail was not supported by any material. It is true that this Court is proverbially reluctant to interfere with the discre tionary orders, but Mr. Junejo submitted, inter alia, that the impugned order was totally illegal, because the learned Judge had ignored and/or misread the evidence on the record which supported the petitioner's case. Thus, for example, the complainant was admittedly accompanied by two of his followers, and the police station was two furlongs from the place of occurrence. Further, even according to the F. I. R. there was enmity between the parties, and as the F. I. R. was lodged after a delay of two hours, learned counsel submitted that these circumstances, which were very damaging to the prosecution case, had escaped the attention of the learned Judge. It is not clear whether the question of delay in the F.I. R. has escaped the attention of the learned Judge, and it may be that the learned Judge thought that there was no delay in lodging the F. I. R., because of the nature of the injury to the complainant. We say this because the learned Judge has almost given a finding that the complainant was paralysed by his injury and so we referred learned counsel to this aspect of the case. His reply was that if the injury was so serious, it would not have been possible for the complainant to turn round and identify his assailant, the more so, in a crowded street.

As this submission of learned counsel related to the appreciation of evidence, we are reluctant to examine it, and as it is also not necessary for us to examine it, we would only observe that we invited the learned Advocate‑General to throw light on the nature of the injury or injuries to the complainant, and we would recall here that an adjournment had been given to him for this purpose. The learned Advocate‑General was not able to produce the Radiological Report to which the learned Judge has referred in the impugned order. but the complainant ,produced before us photo-stat, copies of two Radiological Reports dated 13‑12‑1978 and 31‑3‑1979. According to the first of these reports, the X‑ray was "sugges tive of foreign body, (Bullets)." The second report also states that the "shadows seen in the chest are suggestive of bullets". Obviously, neither of these reports can possibly lead to the inference that the complainant had suffered an injury which had paralysed him or that he had received an injury which was so serious that he could not have sent one of his two men to lodge an F. I. R. immediately. When we referred the complainant to this aspect of the case, he said that he had taken other X‑rays or other reports have been taken at the Jinnah Hospital in Karachi or in any other Hospital is not relevant at this stage of the case, because we have to go by the material which was before the High Court. And, it would appear that the material consisted of only the reports produced before us by the complainant, therefore, whilst the position may be different after the complainant has produced further evidence about his injuries in the Sessions Court, it cannot be said at this stage of the case that the injury to him was so serious that a report could not have been lodged with the e police immediately after the occurrence, but these were circumstances which were very relevant to the bail application, yet they were ignored by the learned Judge.

Learned counsel then criticised the observations of the learned Judge on the material produced by the petitioner in support of his plea of alibi and submitted that the observations were, contradictory and based on a misreading of evidence. Now, as we pointed out, the petitioner had produced six persons in support of his plea of alibi, whilst the petitioner's case was supported by two witnesses. But even the tentative appreciation of evidence which is necessary for the purpose of deciding bail application which is not a matter of the counting of heads, anal it .for the learned Judge to make tentative assessment of the material produced by the complainant arid by the petitioner; and if the matter had rested here,, the petitioner could not have had any cause of complaint merely because the learned Judge had tentatively preferred the evidence produced by the complaint. However, whilst doing so, .the learned Judge observed that the petitioner's plea of alibi was "supported by witnesses, who could easily and conveniently have been procured and are not, of unquestionable status . . . To accept their version at this stage would render the prosecution case doubtful and result in the miscarriage of justice". With all respect to the learned Judge, if he had tentatively preferred the version of the petitioner, this would not have rendered the prosecution case doubtful nor resulted in the miscarriage of justice, because the learned Judge, was only required to make a tentative appreciation of the material for the purpose of section 497 of the Criminal Procedure Code, and there is force in Mr. Junejo's submission that the learned Judge 'may have misread the material' produced by the petitioner, because of this misconception of the law.. Additionally, because High Court can only make a tentative appreciation of the evidence produced by the parties in a bail application, High Courts should riot give a conclusive finding about that material, because to do so would prejudice the case of the parties in the trial Courts, therefore, learned counsel respectfully submitted that the learned Judge had erred in law in expressing his preference for the prosecution case in a manner which was likely to prejudice the case of the parties in the Sessions Court. Once again .we are compelled to observe with regret that there is force in this submission.

It is also our painful duty to refer here to the penultimate paragraph of the impugned order in which the learned Judge observed :‑--

"Admittedly there is deep‑rooted previous enmity between the parties, due to which the injured was fired upon."

In the context in which these observations occur, we have to state with regret that they could easily be misread by the Sessions Court as a finding by the High Court about the petitioner's guilt. But, we indicated earlier and we would repeat that the function of the superior Courts in a bail application is to make a tentative assessment of the evidence produced before them and not to give a finding about the guilt or innocence of the accused. Secondly, as rightly submitted by Mr. Junejo, enmity can be a double‑edged weapon, and that was his case in the High Court. Now, this was a circumstance which was relevant to the bail application, but as it was ignored by the High Court, we would only observe that the Sessions Court will decide this question on the basis of the evidence produced before it by the parties.

In all the circumstances discussed, there is force in learned counsel's submission that the learned Judge has ignored evidence and not followed the correct principles for assessing the material produced by the parties in a bail application. Therefore, after hearing the learned Advocate‑General and the complainant, we have converted this petition into an appeal, set aside the order of the learned Judge of the High Court and allowed the appeal Bail in the sum of Rs. 20,000 with one surety of the like amount to the satisfaction of the Sessions Judge, Hyderabad. Finally, in view of the observations in the impugned order which have disturbed us, we have to observe that the Sessions Court will decide the questions of the petitioner's guilt solely on the basis of the evidence produced before it, and it shall not be influenced in any way by the observations in the impugned order or indeed in this order, because observations in bail orders are necessarily of a tentative nature.

Petition dismissed.

Find a Lawyer Near You

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