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Criminal Miscellaneous No. 29 of 1983, decided on 26th October, 1983.

-- S. 497/498-Penal Code (XLV of 1860) S. 302/34-Application for bail-Trial Court not required, in bail matters, to probe into merits of case-Court has to look only to material placed before if--Bail in murder cases a matter of discretion of trial Court subject to limitation of being not allowed.

-- S. 497/498-Penal Code (XLV of 1860), S. 302/34-Merits of case not to be deeply gone into by Court granting bail--Reasonable ground existing tending to connect accused with crime-Bail to be refused without going into deeper application of merits of such grounds and evidence on which their are rested which is function exclusively of trial Court.-[Evidence].

Ibrahim and another v. The State 1982 S C M R 434; Sanatta and another v. The State 1982 S C M R 208; Muhammad Sarwar v. The State 1982 S C M R 257; Ch. Hashmat Ali v. The State 1976 S C M R 51; Muhammad Amin and others v. The State 1983 S C M R 355 and Sanaullah Khan and 3 others v. The State 1983 S C M R 51 ref.

-- S. 497/498--Penal Code (XLV of 1860), S. 302/34 Bail-- Miscarriage of justice or improper exercise of discretion-Bail can be cancelled-Order of Sessions Judge showing that he almost expressed firm opinion regarding merits of case while deciding question of bail only - Case, though ripe, but bail was allowed after challan had been put in Court and date of commencement of trial not known-Bail allowed by Sessions Judge recalled in circum stances and accused taken into judicial custody.

Allah Ditta v. Muhammad Aslam etc. 1981 P Cr. L J 803 ref.

-- S. 497/498-Penal Code (XLV of 1860), S. 302/34 Bail---Factum that investigation was complete cannot be ground for allow ing bail to accused.

S. Zafar Abbas Zaidi for Petitioner.

Muhammad Karim Anjum for Respondent.

Haji Saadullah Khan, Asstt. A.-G. for the State.

Date of hearing: 26th October, 1983.

Ghulam Haider and Majloom, respondents Nos. 1 and 2 herein have been charged by the petitioner herein for the murder of his father Ghulam Qadir, vide F. I. R. No. 160 of Police Station Paharpur, recorded on 7th September, 1982. According to the F. I. R., the complainant and his father were returning to their village after returning the (deg) of Haji Ghulam Muhammad which they had taken on a camel. When they reached near Paharpur Canal, the complainant started taking bath in the canal and his father went ahead. In the meantime, accused Ghulam Akbar, Ghulam Haider and Majloom came out of the reeds armed with .12 bore shotguns. Accused Ghulam Akbar shouted at the father of the complainant that he could not save his life on that day and simultaneously all the three accused fired their guns at Ghulam Qadir who was hit and fell down. All the three accused decamped from the spot and the com plainant reached his father and found him dead. Many people were attracted to the spot on the report of fire-shots. Motive for the offence was previous blood fued between the parties. Accused Ghulam Akbar has been kept as a suspect in the offence by the police and the other two accused, respondents Nos. 1 and 2 herein were allowed bail by the learned Sessions Judge on 6th February, 1983. The present petition, made by the complainant, seeks the withdrawal of the concession of bail allowed to them by the learned Sessions Judge, D. 1. Khan.

2. The learned Sessions Judge, D. 1. Khan, allowed bail to the accused -respondents on the pleas that the locale of the injuries on the left side was quite impossible when he compared the place assigned to the accused in the site plan as the deceased was done to death at point No. 6 by the accused from points Nos. 7 to 9, that the recovery of card board disc and namdah in the instant case, was not possible, that no eye-witness was specifically mentioned in the F. I. R. and that in view of the said enmity it was quite plausible that the accused were involved in the instant case by the complainant.

3. It is a broad daylight occurrence. There is a direct charge against all the three accused. The complainant is a young boy of l6 17 years. He must have been pretty confused and disturbed when he saw his father injured and falling down. It is quite possible that he may not have observed any other person when he saw the tragedy of the death of his father. Although no eye-witness is mentioned in the F. I. R., but it dis closes that many persons had reached the spot. Habibur Rehman, appeared as a P. W. before the police, who was examined under section 161, Cr. P. C. and his statement under section 364, Cr. P. C. was also recorded by a Magistrate wherein he has confirmed the contents of the F. I. R.

4. The aforesaid observation, made by the learned Session Judge, for allowing bail to the accused-respondents, would show that he almost decided the merits of the case. The contents of .the F. I. R. are corro borated by the post-mortem report to the extent that pellets were recovered from the dead body, which would show that the deceased was shot at by 12 bore shotgun and the same circumstance is mentioned in the F. I. R. The learned Sessions Judge has compared the post-mortem report with the site plan in arriving at the decision that the site plan is belied by the medical evidence. It may, however, be stated that it was not the stage for the learned Sessions Judge to discuss the merits of the case in depth. The trial Courts are not required, in bail matters, to probe into merits o the case and have to look only to the material placed before them. Bail in murder cases, is a matter of discretion of trial Court subject to limita tion of being not allowed. 1n this respect, reliance may be placed on Ibrahim and another v. The State (1982 S C M R 434). The matter of medical report not agreeing with account of eye-witnesses was the subject-matter of petition for special leave to appeal before the Supreme Court in the case of Sanatta and another v. The State (1982 S C M R 208), and their Lordships, Dorab Patel and Nasim Hasan Shah, Judges, held that the fact of medical report not agreeing with account of eye-witnesses may be relevant factor at trial yet such matter cannot be gone into deeply at bail stage. It was again held in Muhammad Sarwar v. The State (1982 S C M R 257) that the contention as to ocular evidence being in conflict with medical evidence relates to appreciation of evidence and such course is not admissible at bail stage. In the case of Ch. Hashmat Ali v. The State (1976 S C M R 51) the bail granted to the person named as assailant in F. I. R. and shot attributed to him was cancelled. In this respect, the latest authority of the Supreme Court is contained in the case of Muhammad Amin and another v. The State (1983 S C M R 355).

5. The contention of the learned Sessions Judge that there was no eye-witness of the occurrence also appears to be misconstrued, as the complainant himself is the eye-witness leaving aside P. W. Habibur Rehman who had also supported the contents of the F. I. R. although not mentioned in the said document as having witnessed the occurrence. In this connection, reliance may be placed on Sanaullah Khan and 3 others v. The State (1983 S C M R 51).

6. It shall thus be seen that the consistent view of the Superior Courts, in matters of bail, has been that the merits of the case should not be deeply gone into by the Court granting the bail. Moreover, where reasonable grounds exist tending to connect the accused with the crime, bail should be refused without going into deeper appreciation of the merits of those grounds and the evidence on which they are rested which is the function exclusively of the trial Court.

7. It was urged by the learned counsel for the respondents that grounds for cancellation of bail are quite distinct from the grounds on which a bail may be allowed. His contention was that for the purposes of cancellation of bail of an accused, it has to be seen whether the accused has misused the concession in any manner or has attempted to overawe the witnesses. His other contention was that the investigation had been completed and the case was ripe for trial. In this connection, he relied upon Allah Ditta v. Muhammad Aslam etc. (1981 P Cr. L J 803), but it may be stated that even under this authority, bail could be cancelled when there was mis carriage of justice or improper exercise of dicretion. As already stated, the order of the learned Sessions Judge would show that he almost expressed firm opinion regarding the merits of the case while deciding the question of bail only. No doubt, the case is ripe, but the bail was allowed after the challan had been put in Court and it is not known as on what a date the trial will commence. Anyhow the factum that investigation is complete cannot be a ground for allowing bail to the accused.

8. For the aforesaid reasons, this petition is accepted and the bail allowed to respondents Nos. L and 2 by the learned Sessions Judge, D. I: Khan is recalled and they are taken into judicial custody.

M. Z. M. Petition accepted.

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