P L D 1966 (W (PLP)

Date of hearing : 26th July 1965. This application which has been filed under sections 497 (5), 498, 561‑A and 439, Cr. P. C. for the cancellation of bail granted to respondents Ghulam Ali and Shaukat Ali arises out of the following facts.

2. The maternal grandfather of Amir Ali Ladiwala is alleged to have deposited a sum of Rs. 1,40,000 with Captain Amir Ali, Agent to His Royal Highness Prince Agha Khan. The maternal grand father of Amir Ali Ladiwala having died Amir Ali Ladiwala approached Captain Amir Ali for the return of Rs. 1,40,

000. Captain Amir Ali denied all the knowledge of the alleged deposit of Rs. 1,40,000 and consequently refused to make payment. Amir Ali Ladiwala is therefore said to have entered into a conspiracy with respondents 2 and 3 who are his father‑in‑law and brother‑in‑law respectively and 9 others for committing the murder of Akbar Ali for coercing Captain Amir Ali into payment of Rs. 1,40,

000. Respondents 2 and 3 consequently along with 9 others were challaned in the Court of the S. D. M. Mr. Abrar Hussain Khan.

3. An application on behalf of some of the accused before the S. D. M. was moved for bail which was rejected. Against this application an application for bail was taken before the Sessions Judge, Karachi, who while rejecting the bail application of Moosa Lashari and Shaukat Ali granted bail to respondent Ghulam Ali. Against this order of the Sessions Judge, an application by the other side was brought to the High Court which was heard by Mr. Justice Raymond. By his order dated the 20th of October 1964 he cancelled the bail granted to Ghulam Ali. Mr. Justice Raymond, however, left it open for the lower Courts to consider the question of bail if and when an application thereafter on merits was moved. An application for bail was consequently made before Mr. Abrar Hussain Khan which was rejected by an order passed by him on the 21st of May 1965. Against this order of Mr. Abrar Hussain Khan an application was moved before the Sessions Judge, Karachi, which was heard and disposed of by an order passed by him on the 28th of June 1965. The learned Sessions Judge under this order has granted bail to respondents 2 and 3 in the sum of Rs. 30,000 with one surety and P. R. in the like amount.

4. Ashiq Ali, brother of the deceased, has moved this application for cancellation of bail granted to respondents 2 and

3. The learned Sessions Judge has granted bail to respondents 2 and 3 on the grounds that most of the witnesses in the case having been examined there is no likelihood of the evidence being tampered with and that the nature of the evidence brought on record is at least of the type which entitles respondents 2 and 3 to the grant of bail. Mr. A. K. Brohi, the learned counsel for the petitioner, has taken strong exception to the nature of the order and the manner in which bail has been granted by the learned Sessions Judge. According to the learned counsel for the petitioner, the learned Sessions Judge has wrongly interpreted the ruling given in Muhammad Iqbal v. State (P L D 1963 Lah. 279) and come to the conclusion that the gravity or the seriousness of an offence is not a criterion for refusing bail. Mr. Brohi has also referred me to the case of Muhammad Iqbal v. The State (P L D 1963 Lah. 188) and has argued that the learned Sessions Judge should have considered these two cases together before giving his finding in regard to the gravity of the offence being no consideration for refusing bail. Mr. Brohi has also contended that the mere fact of the witnesses having been examined does not put a stop to the likelihood of the evidence being tampered with on account of the witnesses being required under the Law to be examined before the Sessions Court once again.

5. I have considered the arguments advanced by the learned counsel for the petitioner and I quite agree with him that they ground that there is no chance of the evidence being tampered with at this stage would not be the only relevant consideration for granting bail to respondents 2 and

3. It is obvious that the witnesses have to be examined in the Sessions Court and as such till such time as they are finally examined before the Sessions Judge the chances of the evidence being tampered with will subsist. I am also in agreement with the arguments advanced by the learned counsel for the petitioner that the learned Sessions Judge has mis‑interpreted the rulings referred to above. The ruling on which the learned Sessions Judge has placed reliance and which is referred to above is a ruling which clearly indicates that it has no reference to a case under section 302, P. P. C. This ruling can therefore be considered for offences which are not punishable with either death or transportation for life. Section 497, Cr. P. C. is the relevant section which lays down the principles governing the question of grant of bail. Section 497 (1), Cr. P. C., reads as under: "497(1) When any person accused of any non‑bailable offence is arrested or detained without warrant by an officer incharge of a police‑station, or appears or is brought before a Court, he may be released on bail but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life: Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail." A bare reading of this section indicates that the considerations for granting bail in offences which are punishable with death or transportation for life are very much different from the considerations on which bail can be granted in other offences. The ruling referred to by the learned Sessions Judge, therefore, is not one which could have been invoked for the purpose of granting bail in the present case, the present case being a case under section 302, P. P. C. I also agree with the learned counsel for the petitioner, that the learned Sessions Judge should not have expressed himself on evidence much less should have discussed the evidence brought on record against respondents 2 and 3 for the purpose of granting bail to them.

6. Section 497, Cr. P. C. recites that bail shall not be granted to a person against whom there appear reasonable grounds for believing that he has been guilty (of an offence punishable with death or transportation for life). In order therefore to comply with what is contained in section 497, Cr. P. C. it is necessary for the purpose of granting bail to person charged with offences punishable with death or transportation for life that the evidence brought on record should be looked into and a prima facie view formed as to whether there appear reasonable grounds for believing that he is guilty of those offences. The learned Sessions Judge therefore, could have been well within his rights if he had read the evidence brought against respondents 2 and 3 and formed a tentative view that there was not sufficient evidence for holding that respondents 2 and 3 were prima facie guilty of offences with which they were charged. He should not have however, expressed his opinion because by doing so he has fettered the discretion of the lower Court on the question of commitment of these two respondents.

7. I have gone through the statements of the witnesses which have been filed in this case before me and I do not want to express myself regarding the evidence which has been brought on record. The learned Sessions Judge has exercised the discretion vested in him under section 497, Cr. P. C. He has also the same powers as the High Court has under section 498, Cr. P. C. Interference with his order of bail at this stage especially when the question of sufficiency or otherwise of evidence brought against the respondents 2 and 3 has been the question in dispute, will amount again to an expression of opinion on may part indicating that the view taken by the learned Sessions Judge on evidence is not proper, and to that extent the order passed by me may fetter the discretion of the committal Court regarding commitment of respondents 2 and

3. Considering all the circumstances on the record and even the evidence brought against respondents 2 and 3 I think it fit and proper to allow respondents 2 and 3 to continue to remain on bail till such time as either more evidence is brought against respondents 2 and 3 or the stage of commitment is reached. While passing this order I wish to make it very clear that the order of the learned Sessions Judge in so far as it relates to his direct or indirect expression of opinion regarding the evidence should not affect the learned S. D. M. for the purpose of commitment of respondents 2 and

3. The S. D. M. is called upon not to even look at the order of the Sessions Judge for the purpose of deciding the issue of commitment of respondents 2 and

3. He should on his own decide the whole matter on merits and if he is of the opinion that there is sufficient prima facie evidence against respondents 2 and 3 he should commit them to the Court of Sessions. His discretion also to remand them to custody at the time of commitment shall be absolutely unfettered.

8. In view of the circumstances mentioned above I do not consider it proper in the interest of justice to allow this application. The application is accordingly dismissed. S.Q. Application dismissed.