P L D 1977 Karachi 554 (PLP)

Muhammad Ibrahim Memon for Respondents (in Cr. Misc. Application No. 74 of 1976). K. B. Bhutto for Respondents Nos. 1,‑2, 3 and 4 (in Cr. Misc. Application No. 1003 of 1975). Dates of hearing t 24th and 25th February 1977. These are two connected applications for cancellation of bail under section 497(5), Cr. P. C. preferred by the State against the orders regarding grant of bail to accused respondents who have been sent up by Town Police Station, Larkana for having entered into a conspiracy and for having murdered one Mr. Shabih Haider Rizvi, Principal Government College, Larkana by firing at him with a pistol.

2. The prosecution case in brief is that two years before the incident respondent Abdul Sattar was caught copying in the examination hall. The Supervisor reported his case to deceased Mr. Rizvi who rusticated him for two years. Respondent Raja Muzaffar Ali was a friend of Abdul Sattar. They both organised a Students' Action Committee with respondent Ghulam Hussain Jatoi as the President and respondent Muhammad Hassan Sangi as Secretary, respondents Safdar Ali and Bashir Ahmed were selected as members of the committee along with others. It is alleged that on 8‑2‑1975 this action committee held a meeting at 5‑00 p. m. at the restaurant of P. W. Allah Wadahiyo on Umpire Road. This meeting went on for two hours and it was decided at the meeting that since the College Principal had got Abdul Sattar rusticated and he was not treating the students properly he should be asked to mend his ways and if he still persisted suitable action may then be taken against him. The meeting then dispersed. Most of the students left in a jeep while respondents Abdul Sattar and Raja Muzaffar Ali after making payment for the tea left on foot. Muzaffar Ali then went home and took his father's pistol. Both Muzaffar Ali and Abdul Sattar then engaged a tonga of Muhammad Hassan Chandio from Pakistan Chowk for Government College. On reaching there they stopped outside the bungalow of College Principal and told the Chowkidar P. W. Muhammad Usman that they had come to inform the Principal that the electricity line in the hostel had failed. The Chowkidar rang the bell and principal's child came out. He was given the message and deceased Mr. Rizvi then came out and asked Muzaffar Ali and Abdul Sattar what had happened. Muzaffar Ali then took out the pistol from his pocket and fired a shot at the Principal. The bullet went through his chest and he fell down. Muzaffar Ali then fired another shot in the air to frighten the Chowkidar who was trying to catch them and both Muzaffar Ali and Abdul Sattar came back and sat in the tonga. They asked the Tongawalla not to disclose this information to any one and threatened to kill him also. 3: S. H. O. Haq Nawaz of Town Police Station, Larkana while patrolling at 8‑15 p.m. got this information regarding the Principal of the College having been shot by two students. He rushed to the Civil Hospital and found Principal Shabih Haider lying dead in the operation theatre with bullet wound through his chest. There was no one else there so the S. H. O. leaving head Constable Niaz Ali and Constable Muhammad Sulaiman to supervise the dead body came back to the Police Station and himself registered the F. I. R. on behalf of the State at 8‑45 p.m.

4. On 9th February, 1975 at 2‑20 p.m. respondent Muzaffar Ali was arrested from Aligoharabad, Larkana and on the same day at 6‑00 p.m. respondent Abdul Sattar was also arrested. They were both produced on 10th February, 1975 in the court of the Mukhtiarkar & F. C. M., Larkana where they made their judicial confessions narrating the above facts. The remaining four respondents were implicated in these judicial confessions and they were also identified by the tea shop owner. All the six accused were then sent up in Court of the Resident Magistrate, Larkana.

5. On 11‑3‑1975 the Resident Magistrate proceeded with the case and started recording the evidence of P. W. Muhammad Usman Chowkidar of Principal's bungalow, when the defence Advocate gave an application under section 526, Cr. P. C. for staying the proceedings on the ground that he was moving a transfer application in the High Court. Thereafter the transfer application was filed, being Cr. Transfer Application No. 17/75, and the record and proceedings of this case (No. 142/75) was called by the High Court. No further progress could, therefore be made in this case, and for that the accused themselves were responsible.

6. On 7‑4‑1975 a bail application was moved on behalf of the respondent Safdar Ali but his Advocate did not press it and it was dismissed by my learned brother Abdul Hafeez Memon, J. on 24‑4‑1975. Thereafter another Criminal Bail Application No. 740/'75 was moved on behalf of respondent Muhammad Hassan. This was granted by my learned brother Zakaullah Lodhi, J., on the ground that it had not been established from evidence available, that the students who had met at the restaurant on Umpire Road had contemplated to straightaway commit this murder. The case of the confessing accused Muzaffar Ali and Abdul Sattar was, however, distinguished. Thereafter some bail application was moved for Safdar Ali, Ghulam Hussain and Bashir Ahmed in the Sessions Court, Larkana and the learned Sessions Judge allowed the application on 29‑10‑1975 following the observations of Mr. Justice Zakaullah Lodhi. However, shortly thereafter a bail application on behalf of the two main accused Raja Muzaffar Ali and Abdul Sattar was also moved in the Court of IInd Additional Sessions Judge, Larkana (Mr. Amanullah Abbasi). The learned Additional Sessions Judge granted bail to both of them by his order dated 25‑11‑1975.

7. It was argued before the learned Additional Sessions Judge that because the F. I. R. had been registered by the S. H. O. himself, the police had become a party in this case. It was also suggested that there had been delay in proceeding with the case as the accused had remained in Jail for about 9 months but the evidence had not been recorded. In fact the entire evidence appearing in the Police diaries was discussed by the defence Advocate and even the contradictions in the statements were highlighted ; for instance it was argued that when other students bad a jeep where was the necessity for them to engage a tonga ; that the persons who went for murder usually muffled their faces but these students were said to have gone openly without attempting to conceal their identity and so on. A photostat copy of a certificate alleged to have been issued by Resident Medical Officer, Liaquat Medical College Hospital. Hyderabad was produced to show that Raja Muzaffar Ali had attended the hospital from 5‑2‑1975 to 8‑2‑1975 in the casualty department up to 12‑00 midnight. The learned Additional Sessions Judge then remarked "that the entire prosecution evidence gets belied if the certificate issued by the R. M. O., Liaquat Medical College Hospital, Hyderabad is believed". He also remarked that great illegality had been committed as an enquiry had been started regarding the issue of this medical certificate which was considered bogus. That it was for the Court to decide whether the certificate was reliable or not. The learned Addl. Sessions Judge then remarked that the benefit of doubt, therefore, had to be given to the accused even at that stage of bail application. He then expressed the view that it was not on the plea of WIN that he was granting bail but he doubted the voluntary nature of the statements of prosecution witnesses and the judicial confessions.

8. Thus even before any evidence had been recorded in the case and before even the opinion of the ballistic expert had been obtained, in respect .of the crime empty found at the wardat and the pistol recovered from the house of Muzaffar Ali, the learned Addl. Sessions Judge in so many words 4ssessed the entire evidence appearing in the police statements and the judicial confessions and expressed his opinion even in respect of the medical certificate said to have been issued to Muzaffar Ali from Hyderabad. it was neither necessary nor desirable for the learned Addl. Sessions Judge to evaluate the evidence which had not yet been heard by him and to sift the evidence and discuss its pros and cons in the course of the proceedings regarding bail. He ought to have known that such expression of his views was likely to prejudice the fair trial, and it was not at all called for at that stage. The conclusions reached by the learned Addl. Sessions Judge, to say the least, appear to be erroneous and they were neither well‑reasoned nor could they be justified on any basis whatsoever. The probability or improbability of the prosecution case or tree possibility of the case terminat ing in conviction are hardly the grounds to be considered for grant or refusal of bail, particularly when even the evidence for the prosecution hag not been led and certain important pieces of evidence like ballistic expert's report etc. are still awaited. Law imposes important limitations regarding' grant of bail in cases such as these, where there are reasonable grounds to believe that the offence of murder punishable with death or imprisonment for life has been committed. The Courts while deciding such applications will be traversing beyond their proper ambit and would be exceeding the limits of their function if they engage themselves in discovering the guilt or innocence of the accused applicant which could only be determined at the trial stage (A I R 1959 Ph. 123). Same view was taken in the case of Chiraghdin v. The State (PLD 1967SC340) and it was observed that the appreciation of evidence and drawing of conclusions therefrom in relation to ail the circum stances is the function exclusively of the trial Court. It cannot be anticipated by the Court dealing with an ancillary matter like grant of bail.

9. In the present case there is the ocular evidence of Muhammad Usman, Chowkidar, Muhammad Hassan Chandio, Tonga driver, Allah Wadhayo, hotel keeper, besides the judicial confessions of Raja Muzaffar Ali and Abdul Sattar and extra‑judicial confession before Muhammad Hassan Tonga driver and there is also evidence of recovery of the crime weapon. from Muzaffar Ali and the crime empty from the scene of offence. It is, not uncommon in such cases to raise the plea of alibi, in the various forms and such pleas can only be determined after the actual evidence in respect of them is heard and recorded. The order of the learned Addl. Sessions Judge granting bail to Raja Muzaffar Ali and Abdul Sattar, being erroneous on the face of it calls for interference by this Court. The application No. 74/76 for cancellation of bail, is accordingly allowed and the order granting bail to the two respondents Muzaffar Ali and Abdul Sattar is set aside. They are said to be in custody in some other case and the Superintendent of that Jail may be informed accordingly.

10. The case against respondents Muhammad Hassan, Safdar Ali, Ghulam Hussain and Bashir Ahmed, however is distinguishable. Muhammad Hassan was allowed bail by this Court on the ground, that it had yet to be established that the Action Committee of the Students that bad met on that fateful day in the tea shop of Allah Wadhaiyo had entered into a conspiracy for commission of this murder or that the murder had been committed in C pursuance of that conspiracy. All that has been alleged in respect of these four respondents is that after the grant of bail they have tried to misuse the concession by approaching the prosecution witnesses and threatening them not to give evidence otherwise they would meet the same fate as the Principal. The prosecution has filed affidavits of prosecution witnesses Allah Wadhaiyo, Abdur Razzak, Muhammad, Hassan Chandio and Muhammad Usman who are the main witnesses for the prosecution in this case. In all these affidavits, however exactly the same language has been used and they were sworn at one and the same time. The stamp papers on which the affidavits were recorded were also purchased at the same time as they bear consecutive numbers and date 15‑11‑1975. As against these affidavits counter‑affidavits denying them have also been filed. It has been stated that all the four respondents went together to each of the four prosecution witnesses and repeated the same threats. Some of these witnesses have not given evidence in respect of the four respondents and they are witnesses exclusively against the two main accused. Under these circum stances the application for cancellation of bail granted to these four respondents cannot be accepted. However, if there is any evidence before the trial Court to suggest that any of the four respondents have tried to tamper with the prosecution evidence or have tried to convey any threats, the trial Court would be at liberty to cancel the bail. The trial Court can also do so in case any evidence comes on record to show their complicity in the actual murder.

11. It might also be observed that the trial has been delayed for more than two years as the accused had preferred transfer application in the High Court and bad asked for stay of the proceedings which bad actually started before the committing Magistrate. After the law reforms this case stands transferred to the Court of Session. The record of this case may accordingly be forwarded immediately to the Sessions Judge, Larkana and he is directed to keep this case on his own file and to proceed with it from day to day. The accused who are said to have been arrested in some other cases must all be lodged in the District Prison at Larkana to facilitate their timely production for this trial which must be given priority over other cases pending, against them. S. Q. Order accordingly.