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Criminal Miscellaneous Application No. 992 of 1984, decided on 13^th November, 1984.

---S.497‑‑Penal Code (XLV of 1860), Ss.302/34 & 109‑‑Bail‑‑Accused only catching hold of deceased to facilitate his murder by co‑accused, held not entitled to bail as a rule‑‑Each case has its own peculiar facts and circumstances and bail applications to be considered and decided in light of general principles laid down by superior Courts.

‑‑‑Ss.497(5), 439 & 561‑A‑‑Penal Coda (XLV of 1860), Ss.302/34 & 109‑‑Bail, cancellation of‑‑Bail granted to one accused as he allegedly caught hold of deceased and to other that he caused injury on back of deceased‑‑Eye‑witnesses implicating both accused and specific roles attributing to them‑‑Report of Chemical Examiner regarding blood‑stained Churri, positive‑‑Accused having motive for commission of offence‑ Provisions of S.34, P.P.C. prima facie attracted ‑‑‑Mere ground that accused was attributed role of having caught hold of deceased and other had caused injury on back side of deceased, held, not sufficient for holding case of further enquiry and bail‑‑Bail of both accused cancelled in circumstances.

Basharat Hussain v. Ghulam Hussain 1978 S C M R 357; Muhammad Hanif v. Manzoor 1982 S C M R 153; Moib Ali v. The State 1983 P Cr. L J 2443; Barkat Bibi v. Gulzar 1979 S C M R 65; Hakim Ali v. State 1979 S C M R 114; Imam Bakhsh v. Muhammad Bakhsh 1979 S C M R 197; Muhammad Ashiq v. Muhammad Tufail 1977 S C M It 46; Falak Sher v. State 1979 S C M R 103 and Walayat v. State 1984 S C M R 530 ref.

A.Q. Halepota for Applicant.

Muhammad Hayat Junejo for Respondent No.1.

Muhammad Ashraf A. Kazifor Respondent No.2.

M.I: Memon, Addl. A.‑G. for the State.

Date of hearing: 8th November, 1984.

This is an application under section 439 read with section 561‑A and section 497(5) of the Code of Criminal Procedure moved by appli cant/complainant Habibullah Khan for cancellation of bail granted by the order, dated 31st July, 1984, to respondent No.2, Abbas Khan, and order dated 21‑8‑1984 to respondent No.1, Mir Ali Khan, of the learned III Additional Sessions Judge, Karachi. I have heard Mr. A.Q. Halepota, learned counsel, who appears for the applicant /complainant, Mr. Muhammad Hayat Junejo, learned counsel for respondent No.1, Mr. Muhammad Ashraf A. Kazi, learned counsel for respondent No. 2 and Mr. M. I. Memon, learned Additional Advocate‑General for the State.

2. Respondent Nos.l and 2, Mir Ali Khan and Abbas Khan, both sons of Shahbaz Khan, alongwith Akram and Hayat Khan, who are also their brothers, are facing trial under section 302/109/34, P.P.C. for the murder of Ahmad Khan. According to the learned counsel, the parties i.e. the complainant, the deceased and the four accused are related to each other. According to the prosecution case, the complainant and the deceased were stopped by the four accused near a hotel of Juma Khan on Mirza Adam Khan Road, Karachi, and Abbas Khan (respondent No.2) caught hold of deceased Ahmad Khan, accused Hayat Khan gave injuries with a "Chhurra" on the front side of Ahmad Khan and respondent No.1, Mir Ali Khan, caused injury to deceased Ahmad Khan on the back side with a "Chhurri" and accused Akram who kept standing nearby continued to give challenges (Lalkara). According to the F.I.R., the injured Ahmad Khan was taken to the hospital but he died on the way to the Civil Hospital. A bail application was moved on behalf of respondent No.2, Abbas Khan and co‑accused Akram Khan before the trial Court. As noticed earlier, according to the prosecution case, Akram Khan had been giving challenges (Lalkara) and respondent No.2, Abbas Khan, had caught hold of deceased Ahmad Khan. After referring to some case‑law, the learned III Additional Sessions Judge, Karachi, in his order dated 31‑7‑1984 observed as follows:‑

"After going through these rulings, I find that superior Courts in the aforesaid rulings have held that in case of catching hold of the deceased by the accused and so also attributing Lalkara to the accused require further enquiry. In the instant case no motive has been attributed against both the accused by the prosecution witnesses and further catching hold of the deceased by accused Abbas Khan and raising "lalkara" by co‑accused Akram Khan, no other act has been attributed against them. In view of the aforesaid rulings, the case of both accused requires further enquiry. A.P.P. has also raised no objection to the grant of bail to the accused. I, therefore, in the circumstances, admit both the accused to bail in the sum of Rs.50,000 each with one surety each separately and P.R. bond in the like amount."

Another bail application moved on behalf of the respondent No. 1, Mir Ali Khan, was granted by order dated 21‑8‑1984 of the Link Judge, III Additional Sessions Judge, Karachi. One of the arguments raised on behalf of Mir Ali Khan at the time of consideration of the bail application moved on his behalf was that death had not been caused by the injury inflicted on the back side of the deceased, which was attributed to Mir Ali Khan, respondent No.1. Some case‑law was cited before the learned Additional Sessions Judge, Karachi, and after referring to such case‑law, it was observed by him as follows:‑

"Having given due consideration to the argumenls advanced from both the sides, I am of the humble view that the present accused /applicant appears to be entitled for the grant of the bail, in view of the above discussion of the law. As such he is hereby ordered to be released on bail in the sum of Rs.50,000 and P.R. bond of the like amount."

3. In his arguments, Mr. A.Q. Halepota, learned counsel for the applicant /complainant, submitted that bails were wrongly granted to the two private respondents and that the reported judgments relied by the two Judges below are clearly distinguishable and that the bails granted to the two private respondents were liable to be cancelled According to the learned counsel for the applicant/complainant, in the facts and circumstances of the present case, the two respondents were not entitled to bail. While attacking the order dated 31‑7‑1984, is was argued that the trial Court was wrong in observing that the superior Courts of our country have laid down the principle that the case of accused, who is attributed the part of catching hold of a deceased to facilitate his killing by a co‑accused, is entitled to bail, as such case is a case which requires further enquiry. I agree with the learned counsel for the applicant /complainant that no principle has been laid down by the superior Courts of our country that in case of an accused, who only catches hold of the deceased to facilitate his murder by a co‑accused, is entitled to bail. Each case has its own peculiar facts and circumstances and bail applications are to be considered and decided A by the trial Courts on the basis of the facts in a particular case in the light of general principles laid down by the superior Courts of our country for grant or refusal of bail to a person facing a criminal trial.

As regards grant of bail to respondent, Abbas Khan, apparently the trial Court relied upon the following three reported judgments:‑

(i) Bashrat Hussain v. Ghulam Hussain 1978 S C M R 357

(ii) Muhammad Hanif v. Manzoor 1982 S C M R 153

(iii) Moib Ali v. State 1983 P Cr. L J 2443

As regards 1978 S C M R 357, a petition for cancellation of bail was rejected by the Supreme Court but no principle has been laid down that in case of an accused catching hold of the deceased to facilitate his murder by a co‑accused, the applicant accused of catching hold of the deceased is entitled to bail on the ground that it is a case of further enquiry.

In the case reported in 1982 S C M R 153, bail had been granted to two accused, who were alleged to have taken the deceased in their grip thus enabling the main accused to inflict as many as 13 injuries on him with a sharp‑edged weapon. The two accused, who had been granted bail, were said to be empty‑handed at the time of the incident. The learned Single Judge of the Lahore High Court took the view that the three injuries on the hand of the deceased prima facie could not have been inflicted if he was secured by two persons and in that view of the matter it was considered to be a case for further enquiry and bail was granted. The Supreme Court, while considering a petition for cancellation of the bail of the two aforesaid accused, came to the conclusion that it was not a fit case for interference by the Supreme Court. It was observed by the Supreme Court as follows:‑

"It is true that at the stage of deciding the question of bail, the Court is not to enter upon a detailed appreciation and examination of the evidence but it is also clear that the question cannot be decided in vacuum, and the Court has to look at the material available when the bail is applied for. Now, in the present case, result of the medico‑legal examination of the deceased was available, and the learned Judge in the High Court could not have refused to look at it. As the two respondents were empty‑handed, he was perfectly justified in drawing tentative conclusion as to the part alleged to have been played by them in the transaction which, resulted in the death of Ali Muhammad. His observation that the question of the application of section 34 of the Pakistan Penal Code in the case of the respondents needs further enquiry is not open to exception."

This judgment also does not lay down the principle that an accused, who only catches hold of the deceased to facilitate a co‑accused murdering the deceased, is entitled to bail and that the case needs further enquiry. The learned Single Judge of the Lahore High Court, who had granted bail in this case, was prima facie of the view that certain injuries inflicted on the deceased could not have been inflicted if he was secured by the two persons and on this view taken by him, the bail was granted on the ground that it was a case for further enquiry.

In the case reported in 1983 P Cr. L. J 2443, the learned Addi tional Advocate‑General appearing on behalf of the State had conceded that it was a fit case for grant of bail to the two out of the three accused on the ground that it was a case for further enquiry, whether these two accused would be vicariously liable for the fatal injuries caused by the main accused. On this bail was granted by a learned Single Judge of this Court. This judgment also does not lay down any general principle of law for grant of bail.

If the ground, on which bail has been granted by the trial Court to respondent No. ., Abbas Khan, is confirmed, it will amount to laying down a general principle that an accused, who is unarmed, but who catches hold of the deceased to facilitate the murder of the deceased by one or more co‑accused, is entitled to bail and such matter needs further enquiry. But this is not a principle which has been laid down by the superior Courts of our country. In such cases other factors are also to be considered before bail is granted or refused. The question of common intention, the question whether the injuries could have been inflicted by co‑accused could prima facie have been inflicted if the deceased was being secured or caught hold by the accused seeking bail and other surrounding facts and circumstances have also to be taken into consideration.

Learned counsel for the applicant; complainant has referred to the case of Barket Bibi v. Gulzar 1979 S C M R 65, in which bail had been granted to an accused, who was alleged to have caught hold of the deceased while dagger blows were inflicted by a co‑accused. Appeal filed against this order was allowed by the Supreme Court, where it was observed that in view of a specific role attributed to the accused in the F. I. R. by an injured eye‑witness (the complainant), the provisions of section 34, P.P.C. were prima facie attracted. Reliance was also placed by the learned counsel for the applicant/complainant on the case of Hakim Ali v. State 1979 S C M R 114. In support of the plea for bail on behalf of the accused in that case it was argued that the injures on the deceased were inflicted by other co‑accused and not by the petitioners, who were empty‑handed and, therefore, they were not liable to be convicted for offences under section 302/307, P.P.C. The Supreme Court observed that these accused were alleged to have accompanied the main accused when they attacked the complainant party and there was a specific allegation against the petitioners that they, clasped the two injured P.Ws. to enable and facilitate the other co‑accused to inflict knife injuries on their persons and as such it was not possible to rule out, at this stage, their participation in the offences Witt which they had been charged. Reliance was also placed by Mr. A. Q. Halepota, learned counsel for the applicant /complainant, on the casetio Imam Bakhsh v. Muhammad Bakhsh 1979 S C M R 197. In this case High Court had granted bail to four accused against whom a case had been registered under sections 302/307/34, P.P.C. One of the reason on which bat'. had been granted by the learned Single Judge of the Lahore Court, was that the fatal injury was not attributed to any of the accused and it was premature at that stage to determine if ' the accused were present and had participated or not. The Supreme Court cancelled the bail of the accused observing that according to the version of the prosecution and eye‑witnesses the injuries to and the consequent death of the deceased was in furtherance of the common intention of all the accused, who were vicariously liable for the offences. It was further observed that the High Court seemed to have allowed the bail to the accused in disregard to some of the salient facts of the case and legal principles applicable to them. Another case relied upon by Mr. A. Q. Halepota was Muhammad Ashiq v. Muhammad Tufail 1977 SCMR 46. In this case bail had been granted by the learned Single Judge of the Lahore High Court on the following grounds:‑

"In the circumstances in which the fire was opened, the question of omission of intention between the petitioner and the three co‑accused calls for further enquiry particularly because the persons hit by the shots were apparently not the victims. A general allegation towards the end of the F.I.R. that all the accused went away from the scene firing their weapons does not necessarily incriminate the petitioner until satisfactory evidence is advanced in that behalf."

Bail granted to the accused was cancelled and the Supreme Court, while cancelling the bail, made the following observation:‑

"After hearing the learned counsel for the parties, we are satisfied that the learned Single Judge of the Lahore High Court has not taken into consideration the provisions of section 34, P.P.C. while granting bail to respondent No.1. The allegation against respondent No.1 is that he was present at the place of occurrence and was armed with pistol. He raised Lalkara and thereafter co‑accused Said Muhammad fired from his gun which fatally injured the deceased Mst. Chiragh Bibi. Thereafter, Muhammad Sharif and Farmaish Ali also fired from their guns which injured two different persons, including a minor child. All the accused thereafter ran away making recklessly firing with their weapons. In our opinion if this allegation remained unrebutted, there was a prima facie case against respondent No.1 under section 302/34, P.P.C. In these circumstances, the High Court was not justified in granting bail to respondent No.1 and has exercised the discretion vested in it on wrong grounds. We would, therefore, set aside the order of the High Court."

As observed earlier, respondent No. 1, Mir Ali Khan, was granted bail by order dated 21‑8‑1984 of the learned III Additional Sessions Judge, Karachi. The learned trial Court has not given any specific reasons for granting bail except observing that in his view, in view of the case‑law cited by the learned counsel for the parties, Mir Ali Khan appears to be entitled for grant of bail. Although, it is not clear/from the order dated 21‑8‑1984 as to which contention or ground weighed with the learned III Additional Sessions Judge to grant bail t Mir Ali Khan, it appears that perhaps bail was granted on the ground that the injury attributed to have been inflicted by Mir Ali Khan on the deceased was on the back side and this injury did not cause death of the deceased but the death was the result of the injury caused by the main accused Hayat Khan. Without considering the question of prima facie applicability of section 34 P.P.C. in the circumstances, bail could not have been allowed to Mir Ali Khan. I have perused the order dated 21‑8‑1984 of the learned III Additional Sessions Judge, Karachi (Link Judge) and I find that the question of prima facie applicability of section 34 has not at all been discussed or considered.

4. On behalf of respondent No.1, Mir Ali Khan, Mr. Muhammad Hayat Junejo, Advocate, appeared. The first contention raised by him was that this was not a case of an applicant coming for bail but it was a case where bail had already been granted by the trial Court and the complainant had filed an application for cancellation of bail. Learned 'counsel relied upon the case of Falak Sher v. State 1979 S C M R 103 to argue that the High Court should not interfere with the order of the Sessions Court granting bail unless the order granting bail is perverse, arbitrary, fanciful and is not borne out from the record. In this case bail had been granted to the petitioners by the trial Court on the ground that in view of the overall facts and circumstances the case was such which needed further enquiry and fell under subsection (2) of section 497, Cr. P.C. However, a learned Single Judge of the Lahore High Court accepted the petition for cancellation of bail of the accused/ petitioners and cancelled their bail. The Supreme Court accepted the bail of the accused/ petitioners. The Supreme Court referred to certain facts which required explanation by the prosecution. The Supreme Court also referred to the fact that no recovery of any articles or goods was made from the Wardat. The Supreme Court also made a reference to the observation of the learned Single Judge of the Lahore High Court, who had observed that the F.I.R. "will be a good evidence", though it was well‑known that it was never a substantive evidence and moreso when its maker was dead and would not be available for cross examination. After referring to the apparent weaknesses of the prose cution case, the Supreme Court observed as follows:‑

"Since the prosecution version in its very nature leaves much to be inquired into and the case being of a further enquiry, the order of the High Court which ignored this fundamental characteristic of the case cannot be maintained. It is to be pointed out that section 497(2) of the Cr.P.C. itself authorizes grant of bail in cases of further enquiries. The High Court, it appears did not upset the findings of the learned Sessions Judge that it was a case for further enquiry, but making appraisal of the merits in its own way, cancelled the bail without expressing any opinion on the subject of further enquiry. This was illegal case in our view a High Court would not be justified to interfere in discretionary orders of Courts below where the said Courts feel and from perusal of record specifically hold that a case is such which needs further enquiry, and pass the relevant order on that ground and basis, unless the order impugned is preverse, arbitrary, fanciful or is not borne out from the record. As this was not a case of that type, interference by the High Court in its revisional jurisdiction with the order of the learned Sessions Judge was not warranted."

Mr. Muhammad Hayat Junejo had also relied upon the case of alayat v. State 1984 S C M R 530. This case is clearly distinguishable. n this case one accused had been granted bail by a learned Single Judge of the Lahore High Court. Others, who had not been granted ail, approached the Supreme Court and the Supreme Court granted bail to one of the petitioners on the ground that his case is similar to the case of the accused, who had already been granted bail by the High Court. As far as the other petitioner was concerned, it was observed that he had been alleged to have given hammer blow on the ankle of the deceased but no such injury was found on the person of the deceased. He was also granted bail. With respect, it may be observed that no general principle about grant of bail has been laid down by the Supreme Court in 1984 S C M R 530.

It was argued by Mr. Muhammad Junejo that the incident in question had taken place suddenly and for applicability of section 34 the principle requisite was a prior plan which is not spelt out from the prosecution evidence. It is further argued that prima facie the incident was the work of one man and other three brothers had been roped in. According to the learned counsel, this was a case for further enquiry and bail had been rightly granted to respondent Mir Ali Khan.

5. Mr. Muhammad Ashraf A. Kazi, learned counsel for respondent No.2, Abbas Khan, also argued that bail had been properly granted to his client by the trial Court. According to him, there was no motive for crime except' against the main accused, Hayat Khan, and then injuries had also been sustained by Hayat Khan, main accused, which indicated that the prosecution version was apparently incorrect. According to the learned counsel, even according to the prosecution, this could not be a case where there was a plan made by the four accused prior to the incident and as such section 34 was prima facie not applicable.

6. Mr. Muhammad Ibrahim Memon, learned Additional Advocate -General for the State, has also not supported the present petition for cancellation of bail. According to the learned Additional Advocate‑General, Hayat Khan had sustained only one injury according to the prosecution case, but according to medical evidence, four incised injuries, though simple, were sustained by Hayat Khan and the question whether these injuries could have been sustained by Hayat Khan by his own "Chhuri" requires further enquiry. According to the learned Additional Advocate‑General, the prosecution case does not indicate that this was a premeditated attack. It was submitted that bail had been properly granted to the two private respondents by the trial Court.

7. According to the police papers, there are three eye‑witnesses including complainant. These three witnesses have implicated the accused and specific roles have been attributed to respondent No.1. Mir Ali Khan, and respondent No.2, Abbas Khan. As observed earlier, Abbas Khan is alleged to have caught hold of deceased while injuries were given by Hayat Khan and respondent No. 1 Mir Ali Khan. Then there are several other witnesses, who had been attracted by the noise. These other persons are not eye‑witnesses but they reached the spot, according to the prosecution case, immediately after injuries had been inflicted upon the deceased and they had seen the deceased lying injured. As regards respondent No. 1. Mir Ali Khan there is the recovery B of a blood‑stained "Chhuri" from him for which a Mashiranama was prepared and the chemical analyser's report is also positive. According to the prosecution case, there is a motive for the commission of the offence. According to the F.I.R., there had been a hot exchange of words between the deceased Hayat Khan, who had also abused each other in the morning of the day of the incident and in the evening at about 7‑00 p.m. Hayat Khan with his three brothers namely the two private respondents and Akram Khan were standing near a hotel and they stopped the complainant as well as the deceased and then the incident had taken place. In view of the prosecution case referred to above, in my view, this was not a case of further enquiry and respon dents Nos.1 and 2 were not entitled to bail. The prosecution case, unless rebutted in evidence, prima facie implicates respondents Nos.1 and 2 and the provisions of section 34, P.P.C. are also prima facie attracted. Merely on the ground that the respondent No.2, Abbas Khan, had been attributed the role of having caught hold of the decease(; and that Mir Ali Khan, respondent No.1 had caused injury on the back‑side of the deceased was not sufficient for holding that it is a case of further enquiry and Abbas Khan and Mir Ali Khan were entitled to bail. The salient facts had to be taken into consideration. Prim, facie applicability of section 34, P. P. C. had also to be considered. This had not been done by the trial Court as would be evident from a perusal of the impugned orders dated 31‑7‑1984 and 21‑8‑1984. The two learned Additional Sessions Judge, who passed these orders, were labouring under a misconception about the general principles laid down by the Superior Courts for grant of bail applications moved by under trial prisoners. The order dated 31‑7‑1984 indicates that its author considered it to be a general principle of law that an accused who merely catches hold of the deceased to facilitate his murder by co accused, is entitled to bail without consideration of other factors including the prima facie applicability of section 34, P.P.C. No such general principle has been laid down by the superior Courts of our country. Then the order dated 21‑8‑1984 indicates that bail was granted to Mir Ali Khan on the basis of the assumed general principle that an accused, who causes an injury to the deceased, which apparently did not cause the death but death was apparently the result of injuries inflicted by another co‑accused, is entitled to bail without consideration of other salient facts and circumstances including the prima facie applicability or otherwise of section 34, P.P.C. No such general principle has been laid down by the superior Courts of our country.

7. In my view, as the salient facts of this case, the general principles laid down by the superior Courts in our country for the grant or refusal of bail including prima facie applicability or otherwise of section 34, P.P.C. have not been taken into consideration by the trial Court and on the basis of the prosecution version, a case for bail had not been made out by respondents Nos.1 and 2, as prima facie section 34, P.P.C. is attracted in their case. The impugned orders, dated 31‑7‑1984 and 21‑8‑1984 are set aside. The bail granted to respondent No‑I, Mir Ali Khan, and respondent No.2, Abbas Khan, by the learned Additional Sessions Judges, Karachi, are hereby 'cancelled and it is directed that they may be taken into custody.

It may be observed that the observations made in this order will not be taken into consideration by the trial Court while deciding the main case.

M. A. K. Bail cancelled

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