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Criminal Appeal No.2 of 1988, decided on 14th February, 1988.

(On appeal from the order of the High Court dated 26-1-1988 in Criminal Appeal/Revision No.1 of 1988).

---Ss.497 & 498--Bail, grant of--Supreme Court normally does not interfere with discretion exercised by the Courts below unless the discretion is shown to be capricious or against the interest of justice or established principles of administration of criminal justice--While deciding bail matters ordinarily the merits of the case are not gone into--Superior Courts, while deciding the application for fail, do not take upon themselves the appreciation of evidence and drawing the conclusion there from which is the exclusive function of the Trial Court.

Chiragh Din v. The State P L D 1967 S C 340 ref.

---Ss.497 &, 498--Bail, grant or refusal of--Principles. It is the basic principle of law that bail is not to be refused as a punishment merely on the allegation that a person is an accused of offence punishable with death or transportation for life, without looking into the available attending circumstances. The wisdom behind it is that if an accused is finally acquitted, he cannot, in any way, be compensated for his detention in the judicial lock-up during the trial. There is no legal or moral compulsion, therefore, to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation for life unless reasonable grounds appear to exist to disclose their complicity.

In order to ascertain whether reasonable grounds exist or do not exist the Courts, as said earlier, do not have to probe into the merits of the case. They have only to look into the material placed before them by the prosecution to see whether some tangible evidence is available against the accused which may lead to the inference of guilty. Reasonable grounds are not to be confused with mere allegations and suspicions nor with tested and proven evidence which the law requires for a person"s conviction for an offence.

Orders on bail applications should not be considered as routine orders involving, as they do, the liberties of the citizens; they must be carefully balanced and weighed in the scales of justice and the requirements of the relevant law as contained under sections 497 and 498, Cr.P.C. There is, however, a further limitation on the Courts discretion with regard to offences which are punishable with death or transportation for life which is that the accused shall not be released on bail in such cases if there are reasonable grounds for believing that he has committed such an offence. The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court as it may possess or is expected to possess as demonstratory evidence in the case both direct and circumstantial. It would, however, be incorrect to say that a person accused of an offence punishable with death or transportation for life cannot be admitted to bail except on grounds of age, sex or infirmity as section 497, Cr.P.C. also envisages that bail shall be refused if there appear reasonable grounds for believing that the person accused has been guilty of offence punishable with death or transportation for life-and bail will be allowed if such grounds do not exist to the satisfaction of the Court.

---First Information Report--Version in the F.I.R. or the statements of the eye-witnesses is not to be considered as prosecution case-Prosecution"s case at least at the initial stage is reflected in the final Police report and this very report is construed to be the prosecution case for any purpose.

---Ss.497 & 498--Azad Jammu and Kashmir Emergency Powers Act, 1958, Ss. 11, 8, 9(1)(v), 7, 12 & 13--Bail--When the final report of the Police did not enter that the appellant or his companions had forcibly taken away certain amount from the Bank and witnesses also did not have identical words on this aspect of the occurrence, it would be said that it was a case of further inquiry because it still remained to be determined as to whether the final report of the Police which did not disclose that said amount was forcibly taken away by appellant and his companions was correct or the statements of the eye-witnesses which tend to show that the Bank amount either was thrown away- or taken away by appellant and others was correct-Mutually destructive material on record being available which was still to be scrutinized by the Trial Court to arrive at the correct conclusion--Bail granted.

---Ss.497 & 498--Bail, grant of--Co-accused who were released on bail were attributed identical part in the F.I.R. and final Police report--Such an aspect having not been attended to by the Court, it would be said that the said Court had failed to exercise the discretion in a legal fashion.

---Ss.497 & 498--Bail, grant of--Pending further inquiry to resolve the inconsistency in the F. I. R., final Police report and the statements of the witnesses under S.161, Cr.P.C., it would be said that there were sufficient grounds to hold that the case was of further inquiry.

---Ss. 497 & 498--Bail, grant of--Recovery--Recovery made eleven days after arrest of accused and it was still to be determined as to whether recovery made from a place accessible to the public could at all be read against the accused and if the answer was in negative how would it affect the truthfulness of the witnesses of the occurrence--Recovery, if excluded from consideration there remained identical role of all the accused which had been released on bail--Such an aspect having not been taken into consideration by High Court while refusing bail to accused, the case was that of further inquiry-- Supreme Court allowed bail to the accused in circumstances.

Rafique Mahmood, Muhammad Saeed, Ishaque Zafar and Latif Akbar for Appellants.

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

--This appeal, by leave, calls in question the judgment passed by a Division Bench of the High Court on 26-1-1988 whereby out of eleven persons (accused), namely, Raja Mumtaz Hussain Rathore, Ch. Latif Akbar, Kh. Farooq Ahmed, Muhammad Ishaque Zafar, Gul Nawaz Butt, Mushtaq Ahmad Sheikh, Mian Ghulam Rasool, Sh. Ghulam Nabi, Zahid Amin Kashif, Akram Ullah Mir and Anjam Nisar Mir, nine were released on bail but the appellants, Anjam Nisar Mir and Akram Ullah Mir, herein, were refused bail.

2. Anjam Nisar Mir is alleged to have committed offences under section 7,8, subsections (i), (ii) and (v), section 12/13, subsection (i) and section 18 of the Emergency Power Act, 1958, while Akram Ullah Mir, appellant, according to the prosecution, has committed offences under section 8/9, subsections (i) and (v), sections 7/8 and 12/13 of the Emergency Power Act.

3. In the first case, after completing the investigation, the police came to the conclusion that all the persons, (accused) on 25-11-1987, after forming unlawful assembly effected forcible entry in the United Bank. Ltd. Main Bazar, Muzaffarabad, and caused damage to the bank"s furniture, destroyed and damaged the record of the value of Rs.18,950. In the second case, the prosecution case in brief is that Akram Ullah Mir, appellant herein, alongwith others assaulted the members of the law enforcing agency and also forcibly snatched away service belt" and stick from a police constable.

4. The cases against the appellants and others were firstly registered for the offences under various sections of the Penal Code and Enforcement of Hudood Ordinance, but later on were converted to the aforesaid sections of the Emergency Power Act. They all applied for bail, which was declined by the Special Judge. The rejection orders passed by the special Judge were challenged through revision petitions by the appellants as well as others before the High Court which were disposed of in the manner indicated above.

5. Hence this appeal, by leave, to assail the aforesaid order of the High Court.

6. We have heard the learned counsel for the parties.

In the first instance it would be proper to state that normally the Supreme Court does not interfere with the discretion exercised by the Courts below unless the discretion is shown to be capricious or against the interests of justice or established principles of administration of criminal justice. It is also to be noted that in deciding bail matters ordinarily the merits of the case are not gone into. The superior Courts, while deciding the application for bail, do not take upon themselves the appreciation of evidence and drawing the conclusion there from which is the exclusive function of the trial Court. In Chiragh Din v. The State (P L D 1967 S C 340) dealing with the point, it was observed:-

"The appreciation of evidence and the drawing of conclusion there from in relation to all the circumstances is the function exclusively of the trial Court. It cannot be anticipated by a Superior Court dealing with an ancillary matter, e.g., the grant of bail, pending trial."

7. It is, however, the basic principle of law that bail is not to be refused as a punishment merely on the allegation that a person is an accused of offence punishable with death or transportation for life, without looking into the available attending circumstances. The wisdom behind it is that if an accused is finally acquitted, he cannot, in any way, be compensated for his detention in the judicial" lock up during the trial. There is no legal or moral compulsion, therefore, to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation for life unless reasonable grounds appear to exist to disclose their complicity.

8. In order to ascertain whether reasonable grounds exist or do not exist the Court, as said earlier, do not have to probe into the merits of the case. They have only to look into the material placed before them by the prosecution to see whether some tangible evidence is available against the accused which may lead to the inference of guilty. Reasonable grounds are not to be confused with mere allegations and suspicions nor with tested and proven evidence which the law, requires for a person"s conviction for an offence.

9. Let us examine as to whether the learned High Court has erred in a serious way in refusing bail to the appellants or the order is passed in conformity of relevant law on bails.

10. In the first instance, it would be proper to know the concise basis on which the appellants are refused bail. The learned Judges in the High Court, while refusing bail, observed:-

"As regards Anjam Nisar Mir, the evidence made available prima facie, connect him with the crime alleged to have been committed. He is, therefore, not entitled, in our view, .to the concession of bail.

As regards Akram Ullah Mir, he is alleged to have assaulted a police constable and had taken away his service belt. In view of the, prima facie, case he is also denied bail."

11. It would, thus, appear that the High Court disallowed bail to the appellants on the ground that there is prima facie case to connect them with the offences charged and, therefore, they are not entitled to the concession of bail.

12. It may be stated here that it appears that the learned Judges in the High Court were influenced by the fact that Anjam Nisar Mir alongwith others, after breaking the cash counter, took away an amount of Rs.72,656.40. We say so because the observation of the learned Judges is very clear on the point. They say that:-

"The accusation against all the appellants/petitioners except Ghulam Nabi and Akram. Ullah is that, on 25-11-1987 they, being members of an unlawful assembly forcibly entered in the United Bank Ltd. Main Bazar Muzaffarabad, caused damage to the Bank"s furniture, destroyed and damaged the Bank"s record and after breaking the cash counter took away the amount of Rs.72,656.40; Akram Ullah, petitioner is alleged to have assaulted a police constable and had taken away his service belt. "

13. It is correct that the complainant, Muhammad Hanif Qureshi, Manager, United Bank Ltd., in the F.I.R. owns the case as narrated by the learned High Court. But the F.I.R. enters that all the persons (including the accused on bail and absconders) took away an amount of Rs.72,656.40. In, the transaction of taking away the amount the appellant, Anjam Nisar Mir, has not been attributed any specific part different from the one attributed to the other accused. The police, in its final report, however, does not ascribe this role to Anjam Nisar Mir, appellant, or any other person. The police, in the final report, says:-

The final report, at the present moment can rightly be construed, to be the prosecution case. It is settled law which admits of no exception that the prosecution"s case at least at the initials stage is reflected in the final police report and this Very report is construed to be the prosecution case for any purpose. The learned Judges in the High Court erroneously, it appears, thought that the version in the F.I.R. or the statements of the eye-witnesses is to be considered as the prosecution case. The final report nowhere states that Anjam Nisar Mir, appellant, or any other person (accused) had forcibly taken away an amount of Rs.72,656.40 as described in the F.I. R. and the impugned judgment.

12. The close examination of the F.I.R. and the final report of the Police negatives the aforesaid observations made by the learned Judge of the High Court. Muhammad Hanif Qureshi, in his statement under section 161, Cr.P.C., says that Anjam Nisar Mir, Shakeel and Hassan Akhtar (absconders) broke open the cash counter and then threw away the cash but even from the statement it cannot at present be said with certainty that they or any one of them had forcibly taken away an amount of Rs.72,656.40. Contrary to this Liaqat Ali, Second Officer, in his statement under section 161, Cr.P.C., says that Anjam Nisar Mir, Shakeel and Hassan Akhtar, broke open the counter of the Cashier and then started throwing away the cash outside and some amount was also pocketed by them. Afsar Din, Assistant Officer of the Bank, in his statement under section 161, does not .own the statement made by Liaqat Ali on some material particulars. Tariq Rashid, Cashier, however, says that three persons namely, Anjam Nisar Mir, Shakeel and Hassan Akhtar, forcibly took the bank cash in the sum of Rs.72,656.40.

13. In the circumstances, when the final report of the Police does not enter that the appellant or his friends had forcibly taken away an amount of Rs.72,656.40 and the witnesses also do not have identical words on this aspect of the occurrence, it would be said that it is a case of "further inquiry" because it still remains to be determined as to whether the final report of the police which does not disclose that an amount of Rs.72,656.40 was forcibly taken away by Anjam Nisar Mir, Shakil and Hassan Akhtar, is correct or the statements of the eye-witnesses, which tend to show that the bank amount was either thrown away or taken away by Anjam Nisar Mir alongwith two others, are correct. Thus, we have mutually destructive material on the record which is still to be scrutinised by the trial Court to arrive at the correct conclusion.

14. It is settled law that orders on bail applications should not be considered as routine orders involving, as they do, the liberties of the citizens; they must be carefully balanced and weighed in the scales of justice and the requirements of the relevant law as contained under sections 497 and 498, Cr.P.C. There is, however, a further limitation on the Courts" discretion with regard to offences which are punishable with death or transportation for life which is that the accused shall not be released on bail in such cases if there are reasonable grounds for believing that he has committed such an offence. The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court as it may possess or is expected to possess as demonstratory evidence in the case both direct and circumstantial. It would, however, be incorrect to say that a person accused of an offence punishable with death or transportation for life cannot be admitted to bail except on grounds of age, sex or infirmity as section 497, Cr.P.C., also envisages that bail shall be refused if there appear reasonable grounds for believing that the person accused has been guilty of offence punishable with death or transportation for life and bail will be allowed if such grounds do not exist to the satisfaction of the Court.

15. In the instant case the above would show that it still remains to be determined by the trial Court as to whether Anjam Nisar Mir, alongwith two others, had in fact entered the Bank building and took away an amount of Rs.72,656.40 or as entered in the final report of the Police, he only entered in the Bank alongwith Hassan Akhtar, Tauqeer Awan, Khurshid Kiyani, Mushtaq Sheikh, Abdul Hamid, Amjad Nisar Mir, Mushtaq Mir, Muhammad Nazir Chaudhry, Manzoor Shirazi, Farooq Wani, Tahir Anjam Chaudhry, Amin Naz, Irfan Gillani, Arshad Mir, Nasir Abbasi and Jalil Bazmi and destroyed the Bank"s furniture etc. It may be stated here that out of these accused, Hassan Akhtar, Gul Majeed, Arshad Mir, Nasir Abbasi and Jalil Bazmi are shown to be absconding and remaining persons have since been released on bail. The persons who are released on bail are given identical part in the F.I.R. and final Police report. This aspect of the case has also not been attended to by the High Court. In the circumstances, it would be said that the High Court has failed to exercise the discretion in a legal fashion.

16. The upshot of the whole discussion is that pending further inquiry to resolve the inconsistency in the F.I.R. final police report and the statements of the witnesses under section 161, Cr.P.C., it would be said that there are sufficient grounds to hold that the case is of further inquiry into the guilt of Anjam Nisar Mir. In the circumstances pending such an Inquiry, he is to be released on bail.

17. This now brings us to the case of Akram Ullah. The prosecution case against Akram Ullah is that he, alongwith fourteen persons, formed an unlawful assembly and illegally entered in the premises of the office of Identity Cards in "Maya Muhallah", and destroyed the Government property and also inflicted injuries on the persons of law enforcing agencies. In this case all are on bail except Akram Ullah who has been refused bail as he has been attributed an additional role in the transaction. About him, it is claimed by the prosecution that he, in addition to the part played by others also assaulted a police constable and took away his service belt and stick. The service belt, according to the prosecution, was recovered from the bushes near "Imam Bara" on 23-12-1987, eleven days after his arrest.

18. In the circumstances it is still to be determined as to whether recovery made from accessible to the public can at all be read against the accused and if the answer is in negative how would it affect the truthfulness of the witnesses of the occurrence. If the recovery of belt is excluded consideration there remains identical role of all the accused and since the others have been released on bail, it would be unjust to refuse bail to Akram Ullah. Besides, it still needs clarification as to what hindered Akram Ullah not to get the service belt recovered until 23-12-1987, i.e., eleven days after his arrest. He was arrested on 12-12-1987.

19. All the above factors, in our view, have not been taken into consideration by the High. Court in refusing bail to Akram Ullah. In the circumstances we think that Akram Ullah also deserves concession of bail.

20. On the premises of the above reasoning we would accept this appeal and upsetting the judgment of the High Court, allow concession of bail to both the appellants. Both the appellant: shall execute bail and surety bonds in the amount of Rs.50,000 to the satisfaction of the Registrar, Supreme Court. On furnishing the required bonds they shall be released from jail if not wanted in any other case.

Before parting with the case, we would be failing in our duty if we do not pay tribute to the learned Additional Advocate-General, Mr. Nisar Mirza, who in the circumstances of the case, very rightly conceded that it is a case of further inquiry and the appellants deserve the concession of bail.

M.B.A./208/ S.C.A Appeal accepted.

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