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Criminal Revisions Nos. 124 of 1985 and 5 of 1986, decided on 5^th February, 1986.

‑‑‑S. 497‑‑Bail‑‑Court, while considering question of bail, has to keep in view ultimate sentence likely to be awarded for offence under consideration‑‑Mere allegation of heinousness of offence or method of commission of offence, place of incident and other allied matters not exclusive considerations for grant or refusal of bail‑‑Court has to see whether there existed reasonable grounds for believing that accused seeking concession of bail, was guilty of such offence‑‑Such test, held, applied to all stages, including stage of investigation and trial.

Khalid Saigol's case P L D 1962 S C 495 and Nadra's case, PLD 1968 S C 310 rel.

‑‑‑S. 497‑‑Bail, grant of‑‑While considering question of bail, deep appreciation of merits of case ought to be avoided‑‑Expression of opinion on merits was likely to prejudice case of party‑‑Court from material placed before it has to see as to whether reasonable grounds existed to believe in alleged guilt of accused‑‑When to satisfaction of Court such grounds did not exist, Court, held, was free to release accused on bail even if he was charged with offence punishable with death or life imprisonment.

‑‑‑S. 497‑‑Bail‑‑At time of examining existence of reasonable grounds, it is permissible to ascertain balance of guilt and innocence of an accused to give or refuse him benefit of bail‑‑When alleged guilt and innocence are equally balanced by virtue of material collected by Investigating Officer, it would be fair and just to grant rather than to refuse bail‑‑When Court comes to conclusion, examining substance of an inquiry, investigation or trial, that alleged guilt of accused is not free from doubt, it is just and expedient to give benefit of such doubt by granting bail to accused.

‑‑S. 497‑‑Bail‑‑Investigation completed‑‑Investigating Officer satisfying himself by examining witnesses on both sides‑‑Order of trial Court, granting bail to accused, upheld.

‑‑‑S. 497‑‑Bail‑‑Co‑accused‑‑Co‑accused equally balanced with main accused in view of evidence collected by Investigating Officer‑‑Main accused granted bail‑-‑Co‑accused, held, was equally entitled to concession of bail‑‑Bail granted.

Khawaja Muhammad Saeed for Petitioners.

M. Nisar Mirza, Addl. A.‑G. for the State.

Raja Sher Muhammad Khan for the Complainant.

Mumtaz Hussain Rathore for Respondents.

Date of institution: 29th December, 1985 and 8th January, 1986.

Both the petitioners, one for grant of bail moved by Nazir Ahmad Zia and the other moved by the State for cancellation of bail, are directed against the order of the District Criminal Court, Poonch, passed on December 24, 1985, whereby the interim bail allowed to Nazir Ahmad Zia was not confirmed and Jalal Khan and others were allowed bail. These petitions are disposed of by single order.

2. Sardar Maqbool Hussain, Chairman Union Council Chowkian, murdered at 2‑15 p.m. on November 28, 1985, by Wazir Muhammad was ascribed infliction of fatal injuries to the deceased with a hatchet, Nazir Ahmad Zia, Khadim Hussain, Jalal Khan, Muhammad Sadiq Muhammad Arif, Jeewan Khan, Muhammad Shabbir and Fazal Dad Khan were ascribed allegation of abetment of murder. According, to prosecution Sardar Maqbool Hussain, deceased, was not having good relations these accused, as there was grouping and litigation between the part; which caused deep enmity between them. It was alleged that these accused persons prompted and abetted Wazir Muhammad to kill deceased.

3. Nazir Ahmad Zia, Jalal Khan, Muhammad Sadiq, Muhammad Arif Jeewan Khan, Muhammad Shabbir and Fazal Dad moved bail application in the District Criminal Court on different dates, but on account common allegation of abetment against them, the petitions were consolidated and disposed of simultaneously by single order passed on December 24, 1985. The District Criminal Court allowed concession bail to the accused persons, except Nazir Ahmad Zia whose interim bail was not confirmed. Nazir Ahmad Zia has challenged the order to seek redress in the shape of concession of bail while the state has challenged the order by seeking cancellation of bail of Jalal Khan and others.

4. The prosecution's allegation against these accused persons is that, on account of local grouping and litigation, they developed enmity with the deceased and abetted Wazir Muhammad, the principal accused, to kill Maqbool Hussain, deceased. The substance of abetment attributed to Jalal Khan and others is that they were seen in the company of Wazir Muhammad sitting in the courtyard of the accused persons when Wazir Muhammad persuaded the accused persons to assist him in elimination of Maqbool Hussain. The accusation against Nazir Ahmad via is that he was not having good relations with the deceased on account of litigation between them and particularly due to dismissal of his nephew from the post of Peon in the High School, Pakhonar. It was alleged that Wazir Muhammad visited accused in tile school premises and they exchanged views during such meeting in order to plan murder of Maqbool Hussain. Finally, the visited the Headmaster (Nazir Ahmad Zia, accused) in the school on 27th November, a day earlier to the incident when they finally resolved to get rid of the deceased.

5. Fazal Dad is a School Teacher in Chamba Gali school Nazir Ahmad Zia is Headmaster of Pakhonar High School. The other accused persons belong to the community of the deceased; their relations were strained on account of local enmity. The enmity between the parties is accepted. It was contended on behalf of the State by Raja Sher Muhammad Khan, the learned counsel appearing for the complainant, and Mr. M. Nisar Mirza, the learned Additional Advocate‑General that the immediate cause of the incident was deep enmity between the parties. The accused charged with offence of abetment, hatched a conspiracy prior to the incident, in consequence of which, Maqbool Hussain was murdered by Wazir Muhammad. It was suggested that there was enough material to hold the accused connected with the murder. The contention was opposed by Khawaja Muhammad Screed and Mr. Mumtaz Hussain Rathore, the learned counsel for defence. It was argued on behalf of, defence that the evidence collected by the prosecution does not constitute reasonable grounds to believe that the accused parsons were connected with the offence of abetment as alleged by the prosecution.

6. The accused are ascribed the allegation of abetment leading to murder of Sardar Maqbool Hussain, Chairman of the Union Council. According to prosecution, the Chairman was murdered by Wazir Muhammad in daylight on a common passage, in presence of the eye‑witnesses. The allegation against the present accused is that they abetted the principal accused to murder the deceased. The alleged abetment was made prior to the incident. The Investigating Officer examined various witnesses and some of them disclosed a meeting of Wazir Muhammad and Jalal Khan and others prior to the incident in order to secure aid in commission of the alleged offence. Likewise, Nazir Ahmad Zia was assigned the role of conspiracy for murder as, prior to the incident, the principal accused visited him in the school premises invariably where they chatted together and finally their meeting took place on a day earlier to the incident. In view of the material collected during investigation and finding of the Investigating Officer, the District Criminal Court allowed the concession of bail to Jalal Khan and others. On the same premises, it declined bail to Nazir Ahmad Zia. In both cases, circumstantial evidence was collected by the prosecution to establish the offence of abetment.

7. Section 497 of the Criminal Procedure Code prescribes that Court shall not grant bail to an accused ascribed Sin offence punishable with death or imprisonment for life. Subsection (2), on the other hand, prescribes that if it appears to an officer or Court, at any stage of investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non‑bailable offence and that there are sufficient grounds for a further inquiry into his guilt, the accused, pending such inquiry, be released on bail on execution on hand for his appearance. The restriction listed in the operative part of subsection (1) of section 497 is subject to exceptions listed under the provisos, in addition to the provision bf subsection (2) as mentioned above. The restriction on discretion for grant of bail provided under section 497 (1), relates exclusively to kind of punishment of death or life imprisonment and it does not enlist nature of any offence. It is clear from the language of this section that while considering the question of bail, Court has to keep in view the ultimate sentence likely to be awarded for the offence under consideration. The scheme of law provided in the section, when examined as a whole, reveals that a mere allegation of heinousness of offence or method of commission of offence, place of incident and other allied matters are not the exclusive considerations for grant or refusal of bail, but the Court has to see whether there exist reasonable grounds for believing that the accused seeking concession of bail, is guilty of such offence. This test applies at all stages, including the stage' of investigation and trial. In support of this view, reference may be made to Khalid Saigol's case P L D 1962 S C 495, in which it was observed by Mr. Justice Hamood‑ur‑Rehman:

"It will be observed that even under section 497(1) in the case of an offence punishable with death or transportation for life the mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. Subsection (1) of section 497 evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court and, as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has, neverthe less, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left un-rebutted, may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists.

Subsection (2) of the said section, on the other hand, comes into application where the investigation, inquiry or trial has already commenced and in the course thereof the accused has come to be in a position to satisfy the Court that there are no reasonable grounds for believing that he has committed the offence alleged and if he so succeeds in satisfying the Court, then the Court has thereafter no discretion left, for, it is enjoined thereunder that the Court shall enlarge him on bail even if it is of the view that there still are sufficient grounds for further inquiry into his guilt. If, as contended on behalf of the State', the principles of sections 496 and 497 are to be applied also to cases of persons already tried and acquitted treating the appeal against acquittal as a continuation of the trial, then logically subsection (2) of section 497 would be attracted and the accused would legitimately be entitled to urge that upon his acquittal he had been able to satisfy the Court that there were no reasonable grounds for believing that he had committed any such offence, for, the acquittal not only strengthens the presumption of innocence but also negatives the existence of any reasonable ground for believing the accused to be guilty. This obviously could not have been the intention of the legislature."

8. The principle of bail envisaged under section 497, Criminal Procedure Code, was examined invariably by the superior Courts of the country and the concensus is the same as recorded in Khalid Saigol's case. Another supporting authority to the view is Nadra's case P L D 1968 S C 310 wherein Mr. Justice Yaqub Ali listed various considerations for grant or refusal of bail on construing the provisions of section 497, Criminal Procedure Code. The relevant part is reproduced:

"The belief that the person accused has been guilty within the purview of section 497 would at an early stage rest on the accusation levelled against him the report under section 173, Cr.P.C. and the evidence which the prosecution proposes to examine, the plea of defence if any raised during the investigation or any other special circumstance appearing it favour of the accused or against the prosecution. After the material witnesses in the case have been examined, the Sessions Judge or the High Court if satisfied that reasonable grounds do not appear for believing that the accused has been guilty of an offence punishable with death or transportation for life may grant bail to him."

9. It is, by now, settled that while considering the question of bail, deep appreciation of merits of the case ought to be avoided as and expression of opinion on merits is likely to prejudice the case of the parties. But the Court, from the material placed before it, has to see as to whether reasonable grounds exist to believe in the alleged guilt of the accused. When to the satisfaction of the Court, such grounds do not exist the Court is free to release the accused on bail even when he is charged with an offence punishable with death or life imprisonment.

10. At the time of examining the existence of reasonable ground, it is permissible to ascertain the balance of guilt and innocence of an accused to give or refuse him benefit of bail. When the alleged guilt and innocence are equally balanced by virtue of the material collected by the Investigating Officer, it is fair and just to grant than to refuse C bail. Likewise, when Court comes to the conclusion, on examining the substance of an inquiry, investigation or trial, that the alleged guilt of the accused is not free from doubt, it is just and expedient to give benefit of such doubt by granting bail to the accused.

11. In present case, it is stated that the investigation has been completed. Mr. Abdul Qayyum Gilani, D.S.P., under whose supervision the investigation was made, also satisfied himself by examining the witnesses of both sides. On perusal of the record, I concur with the finding of the District Criminal Court and hold that Jalal Khan and others were rightly admitted to bail.

12. The case of Nazir Ahmad Zia is also equally balanced in view of the evidence collected by the Investigating Officer. The allegation of abetment is supported by one group of school employees who support the version of invariable visits of the principal accused to the Headmaster in the school premises, whereas the opposite evidence of school E employees, enjoying equal status, if not better, denies the relationship of the principal accused with the Headmaster particularly the alleged meetings in the school premises. At this stage, it is not desirable to evaluate the proposed evidence and suffice it to say that Nazir Ahmad Zia is equally entitled to the concession of bail.

13. The petition preferred by Nazir Ahmed Zia is allowed. He shall be released provided he furnishes bail bond in the sum of rupees two lacs with two sureties and his personal bond in the like amount to the satisfaction of A.D.M., Rawalakot or Sub‑Judge/Magistrate 1st Class, Pallandari. The State petition seeking cancellation of bail of Jalal Khan and others is rejected.

M.Y.H. Bail granted.

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