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Criminal Appeal No.31 of 1987, decided on 30th November, 1988.

(On appeal from the order of the Azad Jammu and Kashmir Shariat Court dated 24-11-1987 in Criminal Miscellaneous No.29 of 1987).

---S. 497--Penal Code (XLV of 1860), S. 302--Grant of bail in murder case--Rule. In a case of murder the normal rule is refusal to grant bail and on merits bail can be granted only either in cases where there are no reasonable grounds for believing that the accused was guilty of the charge or the case is such that it requires further enquiry or it is covered by any of the exceptions under section 497, Cr.P.C. Bail in such cases is a matter within the discretion of the trial Court, which is to be exercised with due care and caution in view of the facts and circumstances of each case.

---S. 497--Penal Code (XLV of 1860), S. 302--Bail--Accused was refused bail by Trial Court when no witness had been examined--Seven prosecution witnesses were examined thereafter--Held, in view of changed circumstances, proper course for the accused would be to approach Trial Court for bail on the ground that even from the evidence recorded, reasonable grounds were not made out to connect accused with commission of murder.

---S. 497--Penal Code (XLV of 1860), S. 302--Bail--Evidence, appreciation of-Supreme Court would not appreciate evidence which was neither before the Subordinate Court at stage of refusal of bail nor it was considered thereat.

Allah Bakhsh v. The State 1969 P Cr. L J 185; Jan Muhammad v. The State 1971 S C M R 351; Qamar Din v. The State 1975 P Cr. L J 133; Muhammad Yaqub v. Iltafur Rehman and another P L D 1974 SC 83 and Shabbir Hussain v. The State P L D 1982 SC (AJ&K) 100 ref.

Muhammad Yunus Surakhvi, Advocate for Appellants.

Manzoor Hussain Gillani, Advocate-General for the State.

- This appeal seeks to assail the judgment passed by the Azad Jammu and Kashmir Shariat Court on 24-11-1987 whereby the learned Judge of the Court declined to interfere with the discretion exercised by the District Criminal Court to refuse bail to Muhammad Faryad and Sohbat Khan, appellants-accused herein.

The appellants were accused of, for the murder of one Tariq Iqbal (alias Bari). They were charged under section 302, A.P.C. read with section 17, Offences against Property (Enforcement of Hudood) Ordinance, before the District Criminal Court, Kotli.

3. The blined murder of Tariq lqbal (alias Bari) alleged to have been committed by the appellants, according to the prosecution, has been unearthed in the following manner:

Tariq Iqbal (alias Bari) went to participate in the marriage ceremony of Muhammad Zamir at village Kotehra-Khanqah but he did not return during the right. The complainant, Muhammad Iqbal, and other members of the family thought that Bari might have stayed there for the night. Next day, the complainant went to Chorohi alongwith the marriage party but did not find Bari there too. He thought that Bari might have stayed back at the house of Zamir but when he alongwith other members of marriage party went to the house of Zamir, he did not find his brother even there. Though he extensively searched him but in vain. He was not able to find him. Muhammad Iqbal then moved an application before the S.H.O. Police Station Khuiratta on lath June, 1984, that his brother is missing.

The police, after entering the report, started search of Bari. However, on 14th June, 1986, his dead body was found in a ravine in Bhori-Nakka. After the recovery of the dead body, the police started investigation of the case under section 302, Penal Code and also arrested the appellants alongwith one Mst. Shafiya Begum who has since been released on bail.

The post-mortem examination of the dead body of Bari was got conducted. The police also recovered and took into possession a knife (the weapon of offence), blood-stained clothes of the deceased and those of the appellants alongwith a golden ring, a wrist-watch, currency notes, a bag, a Khase" i.e. (Chaddar) and a rope which is alleged to have been used for the commission of murder and then for the disposal of the dead body of the deceased. The police also got recorded the confessional statements of the appellants and then submitted the challan in the District Criminal Court, Kotli.

The appellants as well as Mst. Shafiya Begum moved applications for grant of bail before the District Criminal Court, Kotli. The District Criminal Court granted bail to Mst. Shafiya Begum but declined bail to the appellants vide order dated 13-8-1987. The appellants" prayer for bail before the Shariat Court was also turned down vide order dated 24-11-1987. Hence this appeal to assail the above order.

3. Mr. Muhammad Yunus Surakhvi, the learned counsel for the appellants in support of the appeal, maintained:

(i) that the circumstantial evidence available in the present case, even if believed to be correct is insufficient to prove even primp facie case of murder against the appellants; and

(ii) that the statements of seven prosecution witnesses afterwards recorded by the District Criminal Court, also do not inspire confidence to be believed for the involvement of the appellants-Elaborating the point, the learned counsel maintained that after the rejection of bail by the District Criminal Court which order was also upheld by the Shariat Court, the statements of seven witnesses were recorded and there is nothing in all those statements to have any involvement of the appellants in the commission of tire murder.

4. Mr. Manzoor Hussain Gillani, the learned Advocate-General, in opposition submitted:

(i) that the circumstantial evidence connects the appellants-accused with the commission of offence of murder as alleged by the prosecution; and

(ii) that as the statements of seven witnesses have been recorded after rejection of bail, the proper course for the appellants now would be to move afresh for bail in the District Criminal Court.

5.We have considered the arguments addressed at the bar.

6. The law is settled that in a case of murder the normal rule is refusal to grant bail and on merits bail can be granted only either in cases where there are no reasonable grounds for believing that the accused was guilty of the charge or the case is such that it requires further enquiry or it is covered by any of the exceptions under section 497, Cr.P.C. Bail in such cases is a matter within the discretion of the trial Court, which is to be exercised with due care and caution in view of the facts and circumstances of each case.

7. It may be observed that in this case bail was refused to the appellants when no witness was examined by the trial Court. Much water since then has flown as statements of seven witnesses on behalf of the prosecution have been recorded thereafter. In view of the changed circumstances the proper course for the appellants would be to approach the District Criminal Court for bail on the ground that even from the evidence recorded, reasonable grounds are not made out to connect the appellants with the commission of murder.

8. We think that it would not be proper at this stage to say something on the weight of the evidence recorded. Even otherwise this Court would not appreciate the evidence which was neither in existence before the subordinate Courts at the stage of refusal of the bail nor it was considered thereat. We, therefore, refrain to express ourselves about the merits of the evidence recorded by the trial Court after the refusal of the bail because any opinion expressed on the evidence though tentative may influence the mind of the trial Court. If we release the accused on bail it may create an impression that eye-witnesses hitherto recorded do not, prima facie, make out a case of murder against the appellants. Likewise, if we refuse bail, the trial Court may be persuaded to entertain the belief that the evidence hitherto recorded is short to establish a ease of murder against the appellant.

9. It has, therefore, always been a matter of concern to the superior judiciary generally to avoid any expression of opinion on the merits of case lest it may influence the trial Court. The trial Court would be placed in an extremely embarrassing position in such circumstances for although it may not legally be n bound by the views of the superior Court yet it will feel hesitant to go against it and will, therefore, be hampered in discharging its own functions. In this view oft the matter we do not think that, in the stage in which the proceedings are in the present case, we would be justified in reviewing the evidence. In the circumstances, we feel that the District Criminal Court is to be allowed to discharge its own responsibility uninfluenced by the views of the superior Courts.

10. We are fortified in our view in Allah Bakhsh v. The State 1969 P Cr. L J 185, Jan Muhammad v. The State 1971 S C M R 351, Qamar Din v The State 1975 P Cr. L J 133 and Muhammad Yaqub v. Iltafur Rehman and another P L D 1974 SC 83. The first mentioned case decides the controversy to the effect that at the stage of bail the Court should not be drawn into a controversy about the merits of the prosecution case to determine the guilt or innocence of the petitioner. In that case the learned counsel for the petitioner tried to comment on the evidence and circumstances of the prosecution case to prove the petitioner"s innocence in order to earn a bail in a murder case but argument was repelled on the ground that comment on the evidence is not permissible in considering a bail matter. In second case the Supreme Court (Pakistan) in a bail matter refrained to express itself about the credibility of the prosecution witnesses and observed that such disputed question of fact cannot be decided in the bail application. In the third case during the pendency of the application before the High Court some of the evidence of the prosecution witnesses was recorded. In this view of the matter the learned Judge declined to express himself about the credibility of the witnesses on the ground that it is not proper to discuss the prosecution witnesses and express any opinion on the merits. In the last case Anwar-ul-Haq, Judge (as he then was), declined to assess the weight of the evidence in bail matter as it was likely to pre-empt the duties and functions of the trial Court: and to prejudice the prosecution or the defence.

11. No doubt it is important for the Court to form an opinion in releasing an accused on bail about the evidence but that would be permissible only when that evidence was considered by the subordinate Courts in deciding the controversial issue of bail. Since it is not done in this case; rather it could not be done as no evidence by that time was recorded by the trial Court; naturally, we cannot go into the evidence later on recorded. This view also prevailed in a case decided by this Court reported as Shabbir Hussain v. The Slate P L D 1982 S C (AJK) 100.

The upshot of the above discussion is that, without expressing ourselves on the merits of the evidence recorded, we dismiss this appeal and direct the appellants, if they so desire, to move the District Criminal Court afresh for releasing the appellants on bail. If the application is moved in the District Criminal Court, the same shall be decided within reasonable time. The District Criminal Court would decide the matter unhampered by any of the observations made by the Shariat Court and would also take into consideration as to whether on the face of the evidence prima facie involvement of the appellant is proved of the mater as argued is otherwise. The appeal thus is disposed of in the manner indicated above.

M.A.K./230/S.C.A.

Appeal dismissed.

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