P L D 1979 Quetta 148 (PLP)

(ii) In case, Basharat Hussain v. Ghulam Hussain etc. (1978 S C M R 3572) it has been held :‑

"It is quite dear from the F. I. R. that respondent No. 1, was alleged to have held the deceased when his son Abdul Qayyum hit the deceased on the head. Respondent No. 1, is therefore, charged with facilitating the murder of the deceased. It has been rightly pointed out by the High Court that this question requires further enquiry, and the petitioner was entitled to bail." (iii) In case, Sultan and 2 others v. The State (1978 P Cr. L J 194) it was held;

"After going through the relevant material placed before me I feel inclined to agree with the contention raised by the learned counsel for the petitioners. They are alleged to have caused injuries to their sister Mst. Bakhsh Mai and Karim Bakhsh P. Ws. and no injury to the deceased has been attributed to them. The inadequacy of the motive alleged by the prosecution, the kind of weapons used and the fact that the petitioners are very closely related to the deceased and the injured P. Ws. support the contention of the learned counsel for the petitioners that they only wanted to chastise the victims. The question of vicarious liability cannot be gone into at this stage and is to be finally determined by the trial Court. In the circum stances I am of the view that a case for the petitioner's enlargement on bail is made out. Consequently I admit them to bail in the sum of Rs. 20,000, each with two sureties each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Shujjababad." (iv) In case Muhammad Bafiq etc. v. The State (1978 P Cr. L J,875), it was held :‑

"Petitioners causing no injury, to deceased although nothing prevented them if they so intended. Question whether petitioners shared intention of principal offender and could be held liable vicariously for his act in causing death of deceased, yet to be enquired into. Petitioners allowed bail, in circumstances." The authorities relied upon by the learned Advocate‑General say :‑‑ (i) In case, Muhammad Hussain v. The State? (P L D 1970 Kar. 66 ), it has been held :‑‑ "What the learned counsel for the applicant wants me to do at this stage is to come to a prima facie finding that, there was no pre‑concert between the applicant and the other assailant and that, therefore, he could be liable only to the extent of his own act in the crime. This would involve a deeper appreciation of the evidence and a finding to that effect." (ii) In case, The State v. Mr. Zulyigar Ali Bhutto (1978 P Cr. L J 321) it was held :‑

"The facts of the present case are different. In this case, K. M. A. Samadani, J., had first taken exception to the petition for bail being moved directly in this Court without invoking the jurisdiction of the trial Court. It was later that the learned Judge agreed to consider the case. While disposing of the bail application he was acting as a Court superior to the trial Court. He was not acting as a trial Court. By that time the challan had been produced before the trial Court. The challan case was then transferred to the High Court and was directed to be tried by this Bench on its original side. In these circumstances, once a particular Bench is seized of the main case on its original side, the rule of propriety laid down in the above two cases will not apply, since all the matters ancillary to the trial should be disposed of as a matter of propriety and also as a matter of law by this trial Bench. Moreover, the rule of propriety was laid down to avoid the possibility of contradictory judgments being rendered. In the present case this possibility is ruled out since we have already stated that we are not acting as a Court of Appeal or Review against the order of bail and that we are considering the application in the light of new material. In fact, our learned brother K. M. A. Samadani, J., granted bail temporarily till further evidence is discovered. We have to consider this additional evidence only‑Even if we come to the conclusion that the bail must be cancelled in view of the new evidence, we would only be implementing the earlier order and not giving a contradictory judgment. In Gstasab Khan v. The Crown P L D 1956 F C 117 interim bail was granted by Z. H. Lari, J. Application of co‑accused for bail came up for consideration before Muhammad Bakhsh Memon, J., who dismissed it and suo motu issued notice to Gushtasab Khan to show cause why bail granted to him should not be cancelled. The learned Judge cancelled the bail later. Gushtasab Khan moved a revision on the High Court side of the same Court. The Chief Justice made an order declining to release Gushtasab Khan on bail but stated that if within three months the commitment proceedings were not completed, it would be open to Gushtasab Khan to file a fresh application for bail to the Committing Magistrate who may, if he finds sufficient reasons, release the accused on bail. The order of Muhammad Bakhsh Memon, J.. cancelling the bail was held by Federal Court to be proper and legal and the petition of Gushtasab Khan was dismissed by the Federal Court. This objection is, therefore, overruled. We do not agree with Mr. Junejo that bail is generally cancelled only on grounds that the accused is suborning ‑ the evidence or tampering with it and that the cancellation of bail on discovery of fresh evidence is unprecedented. The discovery of new material on further investigation connecting the accused with a crime and cancellation of bail on this ground is implicit in section 497(2) read with section 497(5), Cr. P. C. We also do not agree that the grant of temporary bail or grant of bail with such observations as were made in the precedent judgment is in any way unprecedented. While considering the question whether there are reasonable grounds for believing that the respondent is guilty of an offence punishable with death or imprisonment for life, it is not open to this Court to evaluate evidence." Now there is latest authority of Supreme Court in case of Khalid Javed Gillan v The State (PLD1978SC256). In the authority it has been held by the Supreme Court; "Now as bail has to be allowed or rejected on the basis of this material, it follows that the Court has to make a tentative assessment of its evidentiary value in order to decide a bail application, the more so, as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it. But the section is a part of a Code under which the guilt or innocence of the accused has to determined in the light of the evidence which is produced when the trial of the accused begins, therefore, whilst deciding a bail application the Courts, and especially the superior Courts must refrain, directly or indirectly from giving any conclusive finding on the question of the guilt or innocence of the accused, and it may be that an application for bail may fail, if it cannot be decided without an elaborate sifting of evidence . . . . . ." "As this judgment was followed in Muhammad Aslam v. The State P L D 1967 S C 549, we would only observe that no Judge can be prima facie satisfied that the material produced by the prosecution "if left unrebutted, may lead to the inference of guilt" against the accused, unless the Judge makes a tentative assessment of the evidentiary value of the material produced before him. Similarly no Judge can be satisfied even prima facie that the evidence produced by the prosecution does not lead to the inference of guilt against the accused unless he makes a tentative assessment of the material produced before him. Now if the Court is thus under an obligation to assess the prosecution evident: when no attempt is made to rebut it, it is all the more under that obligation, when the accused produces some material in support of his pleas. Thus the trend of authority is clear, consistent and uniform, and as observed by Cornelius, C. J., a decision on a bail application "involves a prejudgment on the evidence appearing, prima facie, at the stage when bail is sought . . . . . Tentative sifting of evidence. Altogether different from elaborate sifting of evidence. Court, in bail application, to resort to tentative sifting of evidence as distinguished from elaborate sifting of evidence. Contention that bail cannot . be granted if plea pressed turns on appreciation of evidence, held, not correct. Court, in matters of bail, to go by its assessment of the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. Prosecution though may prove a prosecution witness to be man of un-impreachable character for purpose of bail, however, hostile relationship between parties a circumstance not irrelevant to Court's assessment of material produced before it. Petitioner's plea of alibi supported by affidavit of a disinterested person, a medical practitioner of high repute, not having any ostensible connection with petitioner. Bail in absence of proof of Doctor's evidence being not fit to be relied . upon held, could not be properly refused. Impugned order being based on misreading of section 497, petitioner ordered to be released on bail." The Supreme Court has traced the history of case law on bail of this Country. Cases of In re : Manzoor and 4 others (PLD1972SC81), Khalid Salgol v. The State (PLD1962SC49), Muhammad Aslam v. The State (P L D 1967 S C 549), Nadraa v. Jamait Khan and another (P L D 1968 S C 310), and Ch: Abdul Malik v. The State:( P L D 1968 S C 349), have been referred and discussed in the case. The Supreme Court has referred and distinguished the case of Iqbal‑ur Rehman v. The State (P L D .1974 S C 83). The proposition regarding assessment of evidence in bail application has been elaborately discussed by the Supreme Court in the case. I. have no reason to disagree with the proposition laid down in this case. In view of such position, I am too of the definite opinion that the' Courts in deciding bail applications can tentatively sift evidence produced by the prosecution or the accused; but the Courts shall refrain from elaborately sifting of evidence of prosecution or defence or giving conclusive findings on~ question of guilt or innocence of the accused. However, in the instant case, the prosecution case itself as has been produced before me consists of two versions :‑ (i) one version connects the petitioner to the extent of vicarious liability. (ii) the second version exonerates him from such liability. Being two inconsistent versions produced by' the prosecution, it is yet s for the prosecution to establish as to which of the versions introduced by it is true and correct and be relied upon by Court. It as such would certainly require need of further enquiry into the matter. In other words, it could be easily said that at the present stage there is need of further enquiry into petitioner's guilt as such the petitioner pending such further enquiry is entitled for being released on bail as a right but not as a concession. This is the proposition laid down in authorities 1978 S C M R 448, 1978 S C M R 357, 1978 P Cr. L J 194 and 1978 P Cr. L J 875, produced by Mr. Karam Ellahi, the learned counsel for the petitioner. For the foregoing reasons, without prejudice to the prosecution case at the trial, the petitioner is ordered to be released on bail by furnishing two sureties of ten thousand rupees each with personal bond of rupees twenty thousand at satisfaction of the Sessions Judge, Quetta. S. A. H. Bail allowed.