P L D 1993 Karachi 55 (PLP)

. A short summary of the facts will help to clear the points for determination.

2. Deceased Abdul Zaman alias Afzal was a cousin of Shah Zaman, Mir Zaman and' Khani Zaman, all sons of Gul Zaman, the respondents Nos.1 to

3. Complainant Muhammad Akbar is brother of deceased Abdul Zaman alias Afial and both of them were rickshaw drivers. It is alleged that deceased Abdul Zaman alias Afzal had strained relations with respondents Nos.1 to 3 and he had exchanged hot words with them in a marriage gathering one day prior to this incident. This unfortunate incident is the result of that petty quarrel. It is the case of the prosecution that on 26-7-1991 at about 5-30 A.M. deceased Abdul Zaman alias Afzal had gone to Patel Para, Karachi to fetch rickshaw for plying and when he reached, to a public latrine in Darband Bazar he was attacked by respondents Nos.1 to 3 who were armed with Lathis and Sarya (iron rod). The incident was witnessed by Muhammad Pervaiz, Hasan Gul, Chanzeb and Muhammad Rafique who had also come to get rickshaws as they too are rickshaw drivers. Deceased Abdul Zaman alias Afzal fell down and the respondents Nos.1 to 3 then bolted away. Abdul Zarnan alias Afzal who was still alive was taken to Jamshed Quarters P.S. by Chanzeb and others where he is said to have made dying declaration before Muhammad Safdar H.C. On the same day Muhammad Akbar, the complainant in this case was informed about this incident by one Ashraf. Muhammad Akbar rushed to Civil Hospital Karachi, where he found deceased Abdul Zaman alias Afzal lying in coma. On the same day Muhammad Akbar lodged FIR which was registered at Jamshed Quarters P.S. at 7-30 A.M. under section 325-334/34, P.P.C., as amended. On 27-7-1991 at 4-30 A.M. Abdul Zaman alias Afzal died in the hospital and thereafter the police applied section 302/34, P.P.C. After usual investigation the respondents Nos.1 to 3 were sent up to stand trial. The respondents Nos. 1 to 3 applied for bail before Sessions Judge (East) Karachi, who vide order, dated 7-1-1992 granted bail to them mainly for the following reasons:

"After,, going through the Police papers I am constrained to observe that this is a case which smacks of dishonesty on the part of the police so much so that Ashraf who is the first informer was not examined by the police during investigation and the post-mortem examination also did not take place. There is no medical report on the record to show about the nature of the injuries which the deceased had sustained when he was attacked. There are allegations of general nature in the statements recorded by the police, that three culprits attacked the deceased with sticks and iron bars. In these circumstances, the authority reported as, Yar Muhammad v. Arif and others 1991 PCr.L J 529 Karachi cited by the learned counsel for the complainant is of no help to the prosecution, as the matzrial available with the prosecution does not show as to which of the accused caused fatal blow to the deceased, therefore, respectfully following the law laid down in (i) Jaffar and others v. The State 1980 SCMR 784; (ii) lqbal Ahmed v. The State 1980 SCMR 786; (iii) Amir Bux and another v. The State 1985 PCr.LJ 2323 QCarachi) and Ismail and 3 others v. The State 1983 PCr.L J 823 (Karachi) the applicants/accused are admitted to bail in the sum of Rs.100,000 each (Rupees one lac each and P.R. Bond in the like amount."

3. Being aggrieved complainant/applicant has filed this application under section 497(5), Cr.P.C., seeking cancellation of bail granted to respondents Nos.1 to 3.

4. I have heard Mr. Muhammad Rafique Khanzada, learned counsel for applicant, Mr. Sarfraz Khan Tanoli, learned counsel for respondents Nos. 1 to 3, and Mr. Abdul Hakeem Bijarani, learned A.A.-G. for State. The learned AA.-G. has supported the prayer of the applicant.

5. Mr. Sarfraz Khan Tanoli learned counsel for respondents Nos.1 to 3 has raised a preliminary objection about the competency of the application made under section 497(5), Cr.P.C. at this stage when the case is fixed before the trial Court for hearing. He has also endeavoured to show that in view of the rule laid down by the Supreme Court in Mst. Irshad Begum. v. Muhammad Afzal and another reported in 1985 SCMR 1691, Akmal Masih and others v. Salamat Masih and 4 others, reported in 1988 SCMR 918, The State v. Rashid Ahmad and another reported in 1988 SCMR 1129, Muhammad Ismail v. Muhammad Rafique and another, reported in PLD 1989 SC 585 and Mian Dad v. The State and another reported in 1992 SCMR 1418, it would not be proper to cancel the bail of respondents Nos.1 to 3, when the trial is about to commence. There is, however, nothing on record to sh9w that the trial against respondents Nos.1 to 3 has commenced or is about to commence. 6., No generalisation is possible in such matters as each case has its own features. I cannot do better than quoting the observations made by this Court in the case of Ghulam Rasool v. Khadim Hussain and others reported in 1991 PCr LJ 241, which are as follows:

"Everything said in a judgment more particularly in a criminal judgment must be understood as having been said with reference to the facts of that particular case. This in fact is the view of the Supreme Court. There cannot be any generalisations on matters which primarily rest upon the exercise of discretion and any computerised treatment given to cases of similar nature with different facts is likely to frustrate the very purpose of exercise of discretion."

7. Again the above rule is not a rule of law and of course does not take away the powers of this Court under section 497(5), Cr.P.C. to interfere in suitable cases as undoubtedly this Court has powers to do so even of its own -motion and in the absence of any application at all on a perusal of the record. A It is, however, very difficult to lay down any hard and fast rule or to give an exhaustive list of all the circumstances in which an exercise under section 497(5), Cr.P.C. can be made.

8. I now address myself to the question, whether the respondents Nos.1 to 3 were entitled to the grant of bail on the basis of the material available on record. A glance at the order passed by learned Sessions Judge (East) KarachL shows that bail was granted to respondents Nos.1 to 3 mainly for the following reasons:-- .(i) That the investigation carried out by the Investigating Officer was dishonest, inasmuch as Ashraf who had informed complainant Muhammad Akbar about the incident was no(examined during the course of investigation. (ii) That there Was no medical report on record to suggest that deceased Abdul Zaman alias Afzal -died an unnatural death. (iii) That the evidence collected during the course of investigation did not show as to who amongst the three culprits caused fatal injury.

9. As regards the first ground which prevailed upon the learned Sessions Judge while granting bail to respondents Nos.1 to 3, it may be observed that it was very sweeping remark and it seems to me to be unwarranted. There is nothing in the body of F,I.R. which may even faintly suggest that Ashraf had in fact witnessed the incident. The relevant extract of the FIR which was recorded in urdu reads as follows:--

10. It will not be out of place to mention here that the incident was witnessed by four persons, namely, Muhammad Pervaiz, Chanzeb, Hasan Gul and Muhammad Rafique, who too like deceased Abdul Zaman alias Aftal are rickshaw drivers and had gone to Patel Para for taking the delivery of rickshaw for plying them on hire. The record also shows that these persons had in fact taken deceased Abdul Zaman alias Afzal to police station and then to Civil Hospital Karachi.

11. Besides the evidence of these four witnesses, there is also evidence of Muhammad Safdar H.C. to whom deceased Abdul Zaman alias Afzal had given the names of respondents Nos. 1 to 3 while he was in semi-unconscious position. Prima facie this evidence can be taken as dying declaration, although the extent to which it should be believed can only be determined by the trial Court after the case proceeds.

12. The finding of the learned Sessions Judge about the medical report of deceased Abdul Zaman alias Afzal is again not borne out from the record. Admittedly deceased Abdul Zaman alias Afzal was alive when he was taken to Civil Hospital Karachi. He was examined on the same day at 6-15 A.M. by the Medico-legal Officer who found seven injuries, all caused by hard and blunt substance, on his person. The nature of injuries was, however, kept reserved wq the injured was referred for X-rays examination. Such certificate is available on record. A separate certificate was then issued by Medical Officer, Jinnah Post Graduate Medical Centre, Karachi, after deceased Abdul Zaman alias Alzal succumbed to his injuries. Since there was fracture of the skull of deceased Abdul Zaman alias Afzal which is evident from the Ward case sheet, no post mortem examination was considered necessary. It is thus obvious that mistakes upon mistakes were committed by the learned Sessions Judge while exercising his discretion in favour of respondents Nos.1 to 3, which in my view appears to be reckless exorcise.

13. Lord Coleridge rightly pointed out in Pox v. Dickson, a case cited in Wins, Circumstantial Evidence, that "The law does not demand that you should act upon certainties alone .... In our lives, in and thoughts, we do not deal with certainties, we ought to act upon just and reasonable convictions founded upon just and reasonable grounds". Again, various tests have been laid down by various rulings of the High Courts and the Supreme Court for the grant of bail in cases failing within the prohibitory clause of section 497, Cr.P.C., but it is a universally accepted principle that every ruling in a criminal case governs its own facts.

14. Every erroneous decision is a miscarriage of justice and every miscarriage is derogatory to the reputation of the Judicature and detrimental C to the common interest of society, and therefore, it is necessary to exercise such discretion with some restraint.

15. A point which was touched upon by learned counsel for respondents Nos.1 to 3 during the arguments may now be dealt with. It is, contended that the High Court should be slow in exercising powers under section 497(5), Cr.P.C. The answer to this contention is again provided in the case of The State v. Mst. Shamim Akhtar alias Bharj4 reported in PLD 1992 Karachi 332, wherein it was observed:

"No doubt, the power available to this Court under subsection (5) of section 497, Cr.P.C. has to be exercised in extraordinary circumstances, but it is meant to be exercised in appropriate cases."

16. Unmerited grant of bail in cases of this nature is bound to shake the confidence of the litigant public in even handed dispensation of justice which may produce a sense of despair and frustration. In the circumstances mentioned -above, I am satisfied that the learned Sessions Judge (East) Karachi, had fallen into basic error while granting bail to respondents Nos.1 to 3 in complete disregard of the specific prohibition of law contained in subsection (1) of section 497, Cr.P.C. As a result thereof the bail granted to respondents Nos.1 to 3 is cancelled who should surrender before the trial Court forthwith. The Sessions Judge shall take necessary steps for remanding them to custody, if they fail to surrender before him within three days from the receipt of this order. The application made under section 497(5), Cr.P.C. is accordingly allowed.

17. It is needless to add that the observations made above are tentative in nature and they should not influence the trial Court in any manner. N.H.Q./M-1715/K Bail cancelled,