1968 P Cr (PLP)

All the injuries were caused by sharp‑edged weapon. Injuries 1 to 4 were declared simple in nature while No. 5 was held to be responsible for death which had occurred due to loss of blood.

3. The petitioner's application for bail was rejected by the learned Sessions Judge, Dera Ghazi Khan, vide his order dated the 13th of February 1968, with the following observations: "In the F. I. R. a specific part has been assigned to the petitioner who is alleged to have inflicted injuries with knife which was already in his possession. There are four eye witnesses in the case and I think it is too early to comment one way or the other on the‑merits of the case. In my opinion it is not a fit case for bail. The application is, therefore, rejected."

4. The case was argued before me by Mr. M. Saleem, quite at length. Learned counsel raised the following contentions before me: (1) That under section 497, Cr. P. C. a person is entitled to bail even when accused of a non‑bailable offence punishable with death or transportation, if it appears to the Court that there are no reasonable grounds for believing that he has been guilty of such offence; (2) that from the facts set out in the first information report, it stood established that the conversation between the petitioner and the deceased had developed into an altercation, giving rise to a sudden and unpremeditated quarrel which clearly showed that the petitioner and his servant had no common intention to murder the deceased, and as such there would be no occasion for the application of section 34, P. P. C.; (3) that once section 34 was excluded, the petitioner could at best be held guilty of an offence under section 324, P. P. C.

5. On the contrary, while opposing the bail, it was contended by the learned Advocate. General that a motive existed for the petitioner to assault the deceased, who allegedly was going to institute a suit for pre‑emption of the land purchased by the petitioner; and that any finding by this Court at' such a preliminary stage regarding the applicability or otherwise of section 34, P. P. C. would amount to prejudging the case, and as such would be hit by the Supreme Court authority in Muhammad Aslam and others v. The State (P L D 1967 S C 539).

6. In support of his first contention, the learned counsel for the petitioner based his argument mainly on the provision contained in subsection (2) of section 497, Cr. P. Code, according to which in a case of non‑bailable offence, including an offence punishable with death or transportation for life, when no reasonable grounds existed 'for believing that the accused was guilty of such an offence, but sufficient grounds were available for holding further inquiry into his guilt, the Court was under an obligation to release him on bail pending such an inquiry. It was argued that the existence of reasonable grounds for believing that the accused has‑committed an offence is a step further and some thing more positive than the mere existence of a prima facie case against him, the latter eventuality not being sufficient to take away the discretion of this Court to grant bail in the case of an offence punishable with death or transportation for life. Reliance was placed in this regard on the following observation made by S. A. Rahman, J. in Muhammad Ayub v. Muhammad Yaqub (P L D 1966 S C 1003). "Of course, the mere existence of an order of commitment for trial need not be equated with a finding that `there appears reasonable grounds for believing that the respondent was guilty of an offence, punishable with death or transportation for life.' Only a prima facie case must be deemed to exist against him on the basis of the order of commitment." It was strenuously argued that while deciding an application for bail a duty was caste an the Court to determine the question of the existence or otherwise of reasonable grounds for believing that the accused has been guilty of the offence alleged. Of course it was not going to be a conclusive finding and had to be based on whatever material was available to the Court at such a preliminary stage in the form of the first information report, the medico‑legal report etc., and if the Courts hesitated to give such a finding on the pretext of abundant caution keeping in view the possibility of causing prejudice to either party by such a determination, it would certainly be shirking its responsibility, amounting to lack of exercise of jurisdiction in a case where the safeguard of a most valuable right of the personal liberty of a citizen involved. It was argued that the latest Supreme Court authority in Muhammad Aslam's case was indiscriminately pressed into service in opposing bail in cases of murder without having regard to the ambient circumstances of that particular case. A distinction was sought to be drawn between the circumstances of that case and the one before me. It was contended that in the case before their Lordships the order of enlargement passed by the High Court was based on the appraisal of medical evidence according to which none of the injuries suffered by the deceased was individually dangerous to life and ordinarily such injuries did not result in death. It was argued that on the contrary in the instant case, the emphasis lay not on the medical evidence, but on the inapplicability of section 34 which according to the learned counsel could be clearly spelt out from the facts revealed in the first information report itself; and once that position was conceded, the petitioner could only be held guilty of his individual act, which could at best bring his case within the mischief of section 324, P. P. C.

8. On the contrary, it was contended by the learned Advocate‑General with equal emphasis that the authority in Muhammad Aslam's case was attracted with full force to the instant case. On the applicability of section 34, it was contended with equal vehemence that from the faces as disclosed in the first information report, section 34, P. P. C was aptly applicable and that common intention could even develop in the course of the transaction constituting the offence, gathered from the attendant circumstances. Reliance was placed in this regard on Sanaullah v. Crown (P L D 1954 Lah. 382) and Bahar v. Crown (P L D 1954 F C 77). It was argued that the petitioner definitely had a motive against the deceased who had refused to part with the possession of the land purchased by the former and that the mere fact that all the four injuries inflicted by him on the deceased with a knife of which two landed at the neck even though found to be simple would raise an inference of a murderous assault of which the object was achieved by the fatal blow, given by the servant of the petitioner.

9. The precise nature and scope of the relevant powers conferred on the High Court under sections 497 and 498 of the Criminal Procedure Code was examined at length by their Lordships of the Supreme Court in Muhammad Ayub v. Muhammad Yaqub referred to earlier. In this majority judgment, after reviewing considerable case‑law including the pronouncement of the Judicial Committee in Laid Jai Ram Day v, King Empror (1) it was ruled by their Lordships that section 498 was ancillary and subsidiary to sections 496 and 497 of the Code and did not confer a larger power on the High Court to grant bail to accused persons. Section 497, subsection (1) takes away discretion of the High Court to grant bail to a person accused of an offence punishable with death and transportation, if there appear reasonable grounds for believing that he is guilty of the offence This general prohibition is, however, subject to an exception in the case of persons under the age of sixteen years, in the case of females, sick or infirm persons, or persons under the age of sixteen years. Subsection (2) makes it obligatory on the Court to allow bail to an accused person in all kind of non- bailable offences including those punishable with death and transportation in a case where no reasonable grounds exist for believing that the accused has committed an offence, though al further inquiry may be warranted on sufficient grounds. Of course, such an order of release is only interlocutory in nature pending the inquiry. The wisdom and propriety of this provision could be well appreciated in view of the utmost respect shown by the law‑giver to the personal liberty of the subject, which should not be jeopardised without sufficient reason. In this provision the expression used "that there are not reasonable grounds for believing" would clearly show positive absence or non‑existence of reasonable grounds. On the contrary, under subsection (1) an equally mandatory prohibition has been imposed on the enlargement of a person accused of offences punishable with death or transportation for life, if there appear reasonable grounds for believing that he has been guilty of such an offence. Here it is not the positive existence of ,reasonable grounds that has been considered necessary for invoking the prohibition but the mere appearance of reasonable grounds for believing. The word "appear" seems to have been purposely used by the framer,) inasmuch as at a preliminary stage of the investigation or inquiry of a case of murder, it is neither possible, nor proper for a Court to give a conclusive finding on the merits of the case, while disposing of an‑ application for bail, and it has been directed to decline bail on the mere appearance of reasonable grounds for its belief as to the guilt of the accused. It was rightly pointed out by the learned counsel for the petitioner on the basis of an observation of S. A. Rahman, J. reproduced earlier that a mere existence of an order of commitment for trial could not be equated with a finding of the appearance of reasonable grounds for believing that the accused is guilty of an offence punishable with death or transportation, and that the order of commitment could only show the existence of a prima facie case against him. This obviously supports Mr. Saleem's contention that just as prima facie would connote a step further than ex facie similarly appearance of reasonable grounds for believing would be a step further than prima facie showing ‑ a greater degree of l positivity.

10. While agreeing with the contention raised by the learned counsel for the petitioner that a duty is cast on the Court to give a finding on application for bail in a case of murder, as to the existence or otherwise of reasonable grounds for believing that the accused is guilty. 1 now proceed to determine this point with reference to the facts of the case before me. There are three authorities that may be relevantly and advantageously examined offering proper guidelines. The first of these is the Supreme Court authority in Abdul Aziz v. Bashir Ahmad (PLD1966SC638). In this case Abdul Aziz accused was allowed bail by the Sessions Judge, Lyallpur, during the pendency of the inquiry of the case firstly on the ground of sickness and secondly that the allegations against him were only confined to shouting a lalkara. On being moved by the complainant, a learned Single Judge of this Court cancelled the bail. In appeal by the accused, their Lordships of the Supreme Court set aside the order of the learned Single Judge and restored that of the learned Sessions Judge. Their Lordships had an occas ion to refer to this decision in a subsequent judgment in Chiragh Dinand others v. The State (PLD 1967SC340) The petitioners who were committed for trial at Sessions sought Special Leave to Appeal against an order of the High Court declining bail to them in a case of murder. The petition was pressed only on behalf of Chiragh Din who had allegedly stopped short at shouting a lalkara. Dismissing the petition, their Lordships observed that the earlier authority on the point of lalkara should not be read as laying down that a lalkara Could never be regarded as sufficient overt act. It could in certain cases prove to establish abetment which question according to their Lordships was to be decided by the trial Court on appreciation of all the facts including the degree of interest in the crime possessed by the person who shouted the lalkara and the part be played in the background of the affair. It would be advantageous to reproduce the following observations of their Lordships which according to my understanding would be very much relevant for the determination of the issues involved in the instant case. "It is not possible, without a full appreciation of the evidence relating to the background of a crime and its actual commission, to say that proof of a person shouting a lalkara, is not enough to constitute a reasonable ground for thinking that he has been guilty of abetment of such crime. The proposition advanced by learned counsel, in the form of a rule of evidence, cannot be accepted as one of general application. The appreciation of evidence and the drawing of conclusions there from in relation to all the circumstances is the function exclusively of the trial Court. It cannot be anticipate by a superior Court dealing with an ancillary matter e.g., the grant of bail, pending trial."

11. Lastly we come to Muhammad Aslam's case, which has become the sheet‑anchor of the counsel opposing grant of bail in cases of murder. In this case a Single Judge of this Court vide an earlier order dated the 25th of August 1966 cancelled the bail of the accused petitioner a subsequent order dated the 17th of March 1967. The previous order was based on the appraisal of medical evidence according to which, as stated earlier, none of the four lacerated wounds and four swellings on the person of the deceased, was found to be individually dangerous to life or ordinarily resulting in death. In view of this evidence tan argument was raised that the offence committed, if any, fell within the purview of section 326, P. P. C. This order was subsequently followed by the learned Single Judge himself cancelling the bail. Their Lordships of the Supreme Court did not approve of this method of approach and observed as follows: "In the case before us there is direct evidence of the assault by the appellants on Raiz deceased. What was the nature of the injuries caused by the appellants and whether they were collectively caused with the intention of causing death is for the trial Court to judge. The learned High Court Judge was, therefore, not competent to make an assessment of the medical evidence and form an opinion whether the offence committed by the appellants fell under section 302 or 325, P. P. C. which presumably was the basis of the order granting bail to the appellants." Earlier it was observed that: "The High Court is thus not to examine the merits of the prosecution case or the plea of defence in finding whether reasonable grounds appear for believing that the accused person has been guilty. Otherwise any expression of opinion about the merits of the case by the High Court may dispose of the case before the trial has started." It was contended by Mr. Saleem that the aforesaid observation of their Lordships was to be so construed as to be reconcilable with an expression of opinion by this Court on the existence or otherwise of the appearance of reasonable grounds for believing that the accused is guilty. The question is certainly of considerable nicety and not free from difficulty. 12. 1 now proceed to apply the principles enunciated by their Lordships of the Supreme Court in the above‑mentioned authorities to the facts of the instant case. At the moment, all that I have before me is the first information report and the medico‑legal report. As regards the recoveries, it was stated by the learned counsel that no recovery of the knives allegedly used in the assault were made from the petitioner and Allah Bakhsh, his servant and co‑accused. This was not controverted by the learned Advocate‑General. The first information report, to start with, clearly refers to some bad‑blood between the petitioner std the deceased over the possession of land purchased by the former and in occupation of the latter through his tenants. The' petitioner went to the land in question accompanied by his servant which may be a coincidence or a fact in the normal course. Then again the two happened to carry knives with them, which in the absence of the recovery of knives, indicating their size of which some idea could be formed from the dimensions of injuries may be explained away as a matter of routine. Of course, it is not the prosecution case that the petitioner had, at any time, tried to take forcible possession of the land or had even at the relevant time gone there with full preparations to do so. Even if it may be argued that the visit of the petitioner accompanied by his servant was quite innocent and unmotivated by any such designs, he nevertheless, insisted on getting his share of the produce there. and then. The altercation developed into a quarrel. The petitioner opened the attack inflicting in rapid succession four blows on the deceased with his knife, two of which, though skin deep, landed on the neck. The overzealous servant seeing his master engaged in an assault to demonstrate his loyalty as contended also took out the knife and gave the fatal blow to which the deceased succumbed in a few minutes. This in substance is the analysis of the first information report. I am afraid, considering the situation in an objective manner, I have not been able to fully subscribe to the view expressed by the learned counsel for the petitioner that the above account would patently exclude the application of section 34, P. P. C. rendering the petitioner liable for his individual act, from which consideration the non‑existence of the appearance of reasonable grounds for belief in the guilt of the petitioner has to be‑inferred on the basis of the Supreme Court authorities mentioned above. To give a finding of the inapplicability of section 34, P. P. C. to the facts of the case would obviously amount to pre‑judging the case, which could legally and properly be done after appreciation of the evidence. While saying this, I have in view, all the relevant observations of their Lordships of the Supreme Court, reproduced earlier.

13. The upshot of the discussion therefore, is that the petition fails and is hereby dismissed. Petition dismissed.