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Criminal Miscellaneous No. 28 of 1985, decided on 3rd March, 1986.

‑‑‑S.497‑‑Penal Code (XLV of 1860), Ss. 302/34 & 341‑‑Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.5‑ Bail‑‑Every case of criminal nature, held, proceeded on its own facts and circumstances and a rule of universal application could not be deduced from decision of any particular case.

P L D 1978 S C 236 and P L D 1983 S C (AJ & K) 8 rel.

‑‑‑S. 497‑‑Bail‑‑Principles governing grant or refusal of bail stated.

Sultan Muhammad and another v. The State 1981 P Cr. L J 685 rel.

‑‑--‑S. 497‑‑Bail‑‑Offence punishable with death or imprisonment of life‑ Criterion‑‑Bail cannot be withheld as punishment‑‑Grant or refusal of bail, held, depended upon particular circumstances of each case‑‑No hard and fast rule could be laid down as to when a person accused of an offence punishable with death or transportation for life, should be released on bail‑‑Only criterion being whether in view of tentative assessment of evidence and overall circumstances of a case, there existed reasonable grounds to believe that accused was guilty of an offence punishable with death or transportation for life‑‑Existence or absence of reasonable grounds, should be judged in light of peculiar circumstances of each case.

Shabbir Hussain v. The State P L D 1982 S C (A J & K) 100; 1983 P Cr. L J 1027 and The State v. Matloob Hussain Shah 1983 P Cr. L J 745 rel.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), Ss. 302/34 & 341‑‑Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S. 5‑ Bail‑‑Accused allegedly catching hold of deceased and facilitating his murder by main accused‑‑Accused stated to be students, languishing in judicial lock‑up for about two years‑‑Case going on with snail's speed and eighteen prosecution witnesses yet to be examined by trial Court‑‑As such accused would suffer loss of liberty due to long incarceration in judicial lock‑up and if allowed to remain there would come out as hardened criminals for their possible association with hardened criminals‑‑In case of their ultimate conviction, they could easily be arrested but if acquitted there would be no panacea for their loss of liberty and long incarceration in judicial lock‑up‑‑Bail granted in circumstances.

1973 P Cr. L J 123; 1976 .P Cr. L J 758; 1978 S C M R 357; 1981 P Cr. L J 1037; 1983 P Cr. L J 2202; 1983 P Cr. L J 2019; PLD 1912 S C 277; P L D 1976 Lah. 190; The State v. Matloob Hussain Shah; 1983 P Cr. L J 745; 1968 S C M R 924; P L D 1971 S C 324; 1983 P Cr. L J 1965; 1984 P Cr. L J 781; P L D 1984 Kar. 223 and 1985 P Cr. L J 1546 ref.

The State v. Matloob Hussain Shah 1983 P Cr. L J 745 rel.

‑‑‑Ss. 42(b) & 44‑‑Constitutional duty contained in S. 42(B) of Constitution‑‑Rule of propriety laid down by Supreme Court of Pakistan (1968 S C M, R 924) cannot be overlooked and should be followed‑‑But this rule, held, was to be subordinated to constitutional duty of a judge to follow law laid down by Supreme Court as no rule of law could transcend a constitutional provision‑‑All laws and rules (including rule of propriety) must bow before a constitutional provision.

The State v. Matloob Hussain Shah 1983 P Cr. L J 45; Farid v. Ghulam Hussain and others 1968 S C M R 924 and P L D 1971 S C 324, rel.

‑‑‑S. 497‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42‑B & 44‑‑Bail‑‑Law of bail‑‑Not to be interpreted contrary to law laid down by Supreme Court.

Mumtaz Hussain Rathore assisted by Khawaja Muhammad Saeed, for Petitioners.

Muhammad Nisar Mirza, Additional Advocate‑General for the State.

This is an application for bail moved by the petitioners who seek bail in a case of murder under sections 302134 and 341 of the Penal Code read with section 5 of the Islamic Penal Laws Act of 1971

2. The salient facts of the case are as under:‑

(a) That on the complaint of one Shafique Ahmad, an F.I.R. lodged in the Police Station, Thorar, District Poonch, 29‑6‑1984, that at about 4.30 p.m. on the same day, Aurangzeb son of Muhammad Latif, Muhammad Shoaib son of Muhammad Yow and Muhammad Haleem son of Muhammad Ghani, Caste Sudhan, residents of village Androt, suddenly attacked his brother, Javaid Ahmad, and murdered him. Aurangzeb is stated to be the chief accused who killed the deceased with a 'Chhuri' while the other two accused persons i.e. Muhammad Shoaib and Muhammad Haleem caught hold of the deceased and thus facilitated the crime. On receiving the fatal injury with the 'Chhuri , Javaid Ahmad fell down, and expired within a few minutes;

(b) The police started investigation and challenged the three accused persons before the District Court of Criminal Jurisdiction, Poonch on 30‑8‑1984. The case is still sub judice before the learned District Court of Criminal Jurisdiction, Poonch, and it is stated at the Bar that three witnesses i.e. Shafique Ahmad, complainant, and Bashir Ahmad and Nazir Ahmad sons of Sharaf‑ud‑Din, Caste Bhatti, residents of Rehara (the alleged eye‑witnesses), have been examined by the trial Court. There are as many as 21 or 18 prosecution witnesses which are yet to be examined by the trial Court;

(c) Muhammad Haleem and Muhammad Shoaib, accused, moved the trial Court for their bail on 17‑7‑1984. The learned District Court of Criminal Jurisdiction refused them bail vide its judgment, dated 7‑10‑1984. Then these two accused persons went up to the Shariat Court on 25‑10‑1984 but the learned Chief Justice of the Shariat Court also refused them bail, vide his order dated 5‑11‑1984.

3. Now when three prosecution witnesses have been examined by the trial Court, these two petitioners again applied the trial Court for the grant of their bail but the trial Court again rejected their bail on 23‑10‑1985. Dissatisfied with the order of the trial Court, dated 23‑10‑1985, the petitioners approached the Shariat Court again. This case was not heard by the learned Chief Justice himself and he made it over to me, vide his order, dated 5‑2‑1986.

4. Mr. Mumtaz Hussain Rathore, the learned counsel for the petitioners, has raised the following points:‑

(a) That the principal accused, Aurangzeb, has not applied for his bail. The two petitioners are not the principal accused persons in this case and the only allegation against them is that they caught hold of the deceased whereupon Aurangzeb inflicted the fatal knife injury to the deceased, Javaid Ahmad. Under law, such a person is entitled to bail in the light of the following authorities:‑

1973 P Cr. L J 123; 1976 P Cr. L J 758; 1978 S C M R 357; 1981 P Cr. L J 1037; 1983 P Cr. L J 2202; 1983 P Cr. L J 745; 1983 P Cr. L J 2019 and an unreported case of Shariat Court, Criminal Revision No.79 of 1985, date of institution 3‑8‑1985, date of decision 2‑10‑1985, titled "Muhammad Resham Khan and others v. The State decided by my learned brother, Mr. Justice Sardar Muhammad Ashraf Khan, J.

(b) That the benefit of doubt should be given to the petitioners in the light of the statements of the three prosecution witnesses whose statements have been recorded by the trial Court. Mr. Mumtaz Hussain Rathore, the learned counsel for the petitioners, has pointed out to certain differences between the statement of the complainant and the statements of the other two witnesses. He was highlighted the point that in the F.I.R. it. is mentioned that the deceased remained alive for a few minutes while in the statement before the Court, it is stated that remained alive for about half an hour. In this respect he has cited P L D 1972 S C 277, in which it is laid down that law is not to be stretched in favour of the prosecution.

(c) The plea of alibi was also forcefully argued and P L D 1976 Lah. 190 was cited in favour of the point that the plea of alibi can be considered at the stage of bail;

(d) That the accused persons were arrested on 4‑7‑1984 and now approximately a period of quarter to two years has elapsed. During all this long period, only three prosecution witnesses have been examined and more than 18 prosecution witnesses are yet to be examined by the trial Court;

(e) That under section 42(B) of the Azad Jammu and Kashmir Interim Constitution Act of 1974, the decisions of the Supreme Court of Azad Jammu and Kashmir are binding on all the Courts below and, therefore, the law laid down in the case of The State v. Matloob Hussain Shah 1983 P Cr. L J 745 should be followed. Referring to the judgment of the learned Chief Justice of the Shariat Court, dated 5‑11‑1984, Mr. Mumtaz Hussain Rathore argued that the said judgment clashes with the principle laid down by the Supreme Court of Azad Jammu and Kashmir and, therefore, the law of bail as interpreted by the Supreme Court is to be followed by the Shariat Court. Moreover, a considerable period of time has elapsed since that judgment was passed as much water has flowed down under the bridges of Neelum and Jhelum since 5‑11‑1984.

5. On the other hand, Mr. Muhammad Nisar Mirza, the learned Additional' Advocate‑General, replied:‑

(a) Thai the bail application of the petitioners was rejected on 5‑11‑1984 by the learned Chief Justice and, therefore, the rule of propriety demands that this application for bail should also be refused in the light of 1968 S C M R 924 and P L D 19 71 S C 324;

(b) That the correct law appears to be that a person or persons who catch hold of a deceased person and thus facilitate the crime of murder, do not deserve bail in the light of 1983 P Cr. L J 1965; 1984 P Cr. L J 781 (AJK) and Shariat Court Criminal Miscellaneous No.9 of 1984, date of institution 1‑11‑1984, date of judgment 15‑12‑1984, titled "Muhammad Khurshid and 3 others v. The State", decided by me, in which I refused bail to the persons who were ascribed the role of catching hold of the deceased person;

(c). That the affidavits submitted before the Shariat Court are not the sworn statements and, as such, can be ruled out of consideration altogether at the bail stage in the light of P L D 1984 Kar. 223 and 1985 P Cr. L J 1946.

6. I have considered the arguments addressed at the bar and have also perused the file of this case.

7. I am not going to consider the plea of alibi or the point of the benefit of doubt at this bail stage because these matters are to be considered by the trial Court. Therefore, I am not going to touch the merits of the case. At this stage, I would only look into the F.I.R., the statements of the witnesses recorded under section 161. Cr. P.C. or before the trial Court, medical report, certain recoveries, the judgment of the learned District Court of Criminal Jurisdiction and the judgment of the learned Chief Justice of this Court.

8. I may observe here that every case of criminal nature proceeds on its own facts and circumstances and a rule of universal application cannot be deduced from the decision of any particular case. P L D 1978 S C 236.

In P L D 1983 S C (AJ & K) 8, in para. 6 at page 10, it was observed:‑

"It is also to be noted that to deciding bail matters ordinarily the merits of the case are not gone into as held in P L D 1961 Lah. 713 and P L D 1966 S C 340. The rule laid down seems to be quite sound that the superior Courts rarely enter into the merits of the case for purposes of granting or refusing the bail, because the appreciation of the evidence is the exclusive function of the trial Court. In view of this we refrain from going into the merits of the case."

9. The general principles governing the grant of refusal of bail in, criminal matters are given in many authorities but I would like to mention only Sultan Muhammad and another v. The State 1981 P Cr. L J 685, wherein Mr. Justice Raja Muhammad Khurshid Khan, C.J. of our Supreme Court observed in paras. 8 to 12 (at pages 688 and 689).

"8. To appreciate the points argued it will be useful to know the principles governing grant or refusal of bail in criminal matters. Bail, in non‑bailable cases, is a matter‑within the discretion of the Court which is to be exercised with due care and caution on the facts and circumstances of each case. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to confine people in jail merely on the allegation that they have committed offence punishable with death or transportation unless reasonable grounds appear to exist to disclose their complicity in such offences. No doubt, in offences punishable with death or transportation for life, bail is not justified if there exist reasonable grounds for believing that the person accused has committed such an offence. The onus, however, is on the prosecution to disclose those reasonable grounds and the Courts have to examine the data available in the case to find out whether such reasonable grounds exist to connect the accused persons with the crime alleged against them. To ascertain as to whether reasonable grounds exist to connect the accused with the crime charged, the report of the police, the nature and credentials of the evidence which the prosecution proposes to lead in the case and all other relevant circumstances surrounding the occurrence are to be looked into. The determination of the point as to whether bail can be allowed to a person accused of an offence punishable with death or transportation for life will depend on the facts of each case. No doubt, it is not for the Courts, at the stage of bail, to evaluate the evidence in minutest details but they are required to consider as to whether, upon material on record such grounds for belief exist or not. It is also law that in such cases if the Sessions Judge or the High Court forms an opinion that such reasonable grounds do not appear the prayer for bail may be allowed.

9. Whether reasonable grounds exist to connect the accused with the offence charged is a question which must be judicially decided i.e. there should be tangible evidence, offered by the prosecution on which, if not rebutted, the Court may come to the conclusion that the accused is guilty. The Court must apply its mind to the facts of the case and then decide whether or not the accused should be given freedom of bail pending the decision of the case. It is to be noted that where an application for bail is made in the initial stage (as the present case is) the prosecution is expected to satisfy the Court that there is a genuine prima facie case against the accused.

10. Considerations in granting bail, of course, in offences punishable with death or transportation for life are very much different from the considerations on which bail can be granted in other offences. In the former case it is necessary to look into the evidence to see as to whether a prima facie case exists for believing that a person is guilty of those offences. When the High Court grants or withholds bail in a case involving sentence of death or imprisonment for life, the order should give some intelligible indication that the matter was objectively looked into otherwise this Court will not be in a position to satisfy itself whether the order of the High Court is sound to be upheld or not.

11. Subsection (2) of section 497, Cr. P.C. makes it obligatory for the Courts to allow bail to an accused person in all kinds of I non‑bailable offences including those punishable with death or transportation for life, where no reasonable grounds exist for believing that the accused has committed an offence and a further inquiry is warranted. * Of course such an order is interlocutory in nature pending inquiry.

12. It is settled law that an accused is presumed to be innocent till the contrary is proved, therefore, the ultimate conviction and incarceration of a guilty person can redress the wrong caused by a mistake relief of bail granted to him but no satisfactory reparation can be afforded to an innocent man for his unjustific incarceration at any stage of the case if he is acquitted in the long run."

10. In the case of Shabbir Hussain v. The State P L D 1982 S C (AJ & K), the normal rule for refusal or grant of bail in murder cases is stated in paras. 8, 9, 10, 11, 12 and 13 and I need not reproduce them here.

11. It is also a settled law that bail cannot be withheld as a punishment. However, the grant or refusal of bail in a criminal case depends upon the particular circumstances of each case and it is not possible to lay down any hard and fast rules as to when a person, accused of an offence punishable with death or transportation for life, should be released on bail. The only criterion is whether in view of the tentative assessment of the evidence and overall circumstances of a case, there are reasonable grounds to believe that the accused is guilty of an offence punishable with death or transportation for life. The existence or absence of reasonable grounds should be judged in the light of the peculiar circumstances of each case 1983 P Cr. L J 1027.

12. I have myself laid down in the case of "Muhammad Khurshid and 2 others v. The State", Shariat Court Criminal Miscellaneous No.9 of 1984, decided on 15‑12‑1984, that a person or person who catches/catch hold of a deceased thereby facilitating the crime of murder, is/are not entitled to bail, but my view has been overruled by the Supreme Court. I have not been able to lay my hands on that authority of the Supreme Court because the relevant authority of our own Supreme Court has not been reported so far and, perhaps, it is .not available at Muzaffarabad.

13. However, I feel myself bound by the law laid down by the supreme Court in the case of "The State v. Matloob Hussain Shah", 1983 P Cr. L J 745. I would like to reproduce paras. 13 and 14 of that authority from page 751:‑

"13. The only allegation against the respondent is that he held the deceased before he was fired at by Ibrar Hussain Shah. It is yet to be determined as to whether the position in which the deceased was held, Ibrar Hussain, accused, could safely hit at the deceased ignoring the fact that the fire may hit his father Matloob Hussain Shah, respondent‑accused. It also makes us to believe that it is yet to be seen by the trial Court whether it was at all necessary for the respondent to have held the deceased when Ibrar Hussain Shah, accused, allegedly fired at the deceased because it will not have taken more than s second in inflicting the fire injury to the deceased. The question, therefore, whether the respondent in reality did secure the deceased in the circumstances of the case needs further inquiry. Besides, the respondent is an old man of 65 years and this is also an additional reason for his bail because, in our view, his case would be covered by the proviso of subsection (i) of section 497, Cr. P.C. The respondent, as said earlier, is only charged with facilitating the murder of the deceased. This question, therefore, requires further inquiry and the respondent, in our view, is entitled to bail. However, we may not be misunderstood to lay down a principle of universal application that in all cases whereat the accused is caught hold of by a person, such person shall necessarily be released on bail. What vie have said is that the circumstances in a given case, as the case is before us, may warrant such a finding.

14. We are fortified in our view in Shahid Iqbal v. The State 1976 P Cr. L J 758 and Basharat Hussain V. Ghulam Hussain etc. 1978 S C M R 357. In the first case it has been observed that the question that a person held the deceased by arms needs further inquiry and bail pending such inquiry is to be allowed. In the latter case‑law to the effect that when the solitary part of holding the deceased is attributed to the accused this question requires further inquiry pending which the accused is to be released on bail."

14. Mr. Muhammad Nisar Mirza, the learned Additional Advocate‑General has laid much stress upon the judgment delivered by my learned brother, Mr. Justice Abdul Majeed Mallick, C.J. on 5‑11-1984, whereby bail was refused to the petitioners. 1 would have followed that lucid authority and summarily dismissed this application but when it was argued before me that the law laid down in That authority clashes with the law laid down by the Supreme Court of Azad Jammu and Kashmir, I heard both the learned counsel for the parties at great length and came to the conclusion that I should follow the authority of the Supreme Court of Azad Jammu and Kashmir and the law laid down by that Court.

15. Although the rule of propriety demands that I should reject this bail application but due, to the following reasons, I am inclined to grant bail to the petitioners in this case:‑

(i) In fact the judgment of my learned brother, Mr. Justice Abdul Majeed Mallick, C.J. lays down the following rule in para. 6:

"It is to be remembered that cases of criminal jurisdiction, particularly the bail matters, are decided in the light of their own facts."

The learned Chief Justice declined bail to the petitioners due to the fact that the accused‑petitioners were ascribed the role of catching hold of the deceased from arms and ex facie facilitating the murder. I reproduce the relevant sentence:

"The fact of the matter is that the accused‑petitioners, who were ascribed the role of catching hold of the deceased from arms, ex facie, facilitated the murder. The bail application is, therefore, rejected."

As the learned Supreme Court has very clearly laid down in 1983 P Cr. L J 745 that a person who facilitates the murder may be granted bail because that question requires further inquiry, so I am inclined to grant bail to both the accused‑petitioners against whom the allegation is that they caught hold of the deceased and thereby facilitated the murder of the deceased. I am mindful of the fact that the Supreme Court has not laid down any universal principle in that case but if that fact is seen coupled with some other circumstances, bail may be granted to such a person or persons.

(ii) In this case, the other factors for grant of bail are that both the accused persons (the petitioners) are stated to be students and if they are allowed to remain for a long period in the judicial lock‑up, they would come out as hardened criminals because their association with the hardened criminals cannot be ruled out in the judicial lock‑up. It is also stated that they have been languishing to the judicial lock‑up for a period of quarter to two years and almost 18 prosecution witnesses are yet to be examined by the trial Court. During these days, there is a great load of work on the District Courts of Criminal jurisdiction and, therefore, if this case goes on at a snails speed, as it is going on presently, three more years may take to complete the trial Naturally these youngsters shall suffer the loss of their liberty due to their long incarceration in the judicial lock‑up. If they are ultimately sentence, they can easily be arrested and put behind the bars but if they rare ultimately acquitted, there shall be no panacea for their loss of liberty) and long incarceration in the judicial lock‑up.

(iii) I have considered the language of section 42(B) of the Azad Jammu and Kashmir Interim Constitution Act of 1974 and am passing this order in the light of that constitutional provision and on the basis of the law laid down by our Supreme Court in 1983 P Cr. L J 745.

(iv) The rule of propriety laid down in "Farid v. Ghulam Hussain and others 1968 S C M R 924 cannot be overlooked and should be followed. The Supreme Court of Pakistan deprecated the omission to follow that rule in the case of "Ch. Muhammad Khan v. Sanaullah and another" P L D 1971 SC 324. But here in this case I am confronted with another problem i.e. to follow the constitutional provision laid down in section 42‑B of the Interim Constitution Act of 1974 which reads:‑

"42‑B. Decisions of Supreme Court binding on other Courts‑‑Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Azad Jammu and Kashmir."

So the rule of propriety is to be subordinated to the Constitutional duty of a Judge to follow the law laid down by the Supreme Court. In fact, no rule or law can transcend a Constitutional provision and all the laws and rules (including the rule of impropriety) must bow before a Constitutional provision. It was observed in P L D 1971 S C 324 by Justice Yaqub Ali, J (as the then was):

"We do not want to lay more stress on this' point except to point out to the learned Judge the constitutional duty that any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law is binding on all other Courts in Pakistan and that all judicial, authorities throughout Pakistan shall act in aid of the Supreme Court. if these provisions of the Constitution were given due consideration we are sure that the second learned Judge would not have passed the order, dated 31st July, 1970, which in effect was tentamount to countermanding the order of the first learned Judge."

Hence, I cannot interpret the law of bail contrary to the law laid down by the Supreme Court and it is, therefore, that I am inclined to accept the bail application of the two petitioners in this case

16. Under these circumstances, I hereby grant bail to the petitioners for the reasons stated above. The petitioners shall be released forthwith provided they furnish bail bonds in the sum of rupees one lac each, with two solvent sureties, and personal bonds in the like amount each, to the satisfaction of Additional District Magistrate, Rawalakot, provided further that they are not wanted in any other case.

M.Y.H Bail allowed

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