1999 P Cr (PLP)

Benefit of doubt

Bail

Benefit of slight doubt arising in case is necessarily to be given to accused even at bail stage. (g) Criminal trial

Duty of, Court

Court cannot go beyond the facts of case and has to restrict itself to the material placed by prosecution

Court while ascertaining question of 'reasonable ground' should not examine merits of case or defence plea minutely

Artificial and fanciful grounds on basis of presumption cannot be called reasonable ground. Malik Muhammad Nawaz Khan for Petitioner. Razzaq A. Mirza for Respondents Nos. l and

2. Syed Qaiser Abbas Zaidi for the State. Aslam Khan petitioner, who is complainant in the case F.I.R. No.563, dated 16-10-1997 under section 302/34, P.P.C. registered at Police Station Waris Khan, Rawalpindi has moved this application under section 497(5), C;.P.C. for the cancellation of bail granted to respondents Nos. l and 2, namely, Qaiser Khan and Amjad Khan, accused in the case, by the learned Additional Sessions Judge, Rawalpindi vide order, dated 25-4-1998.

2. As per contents of the F.I.R. Irfan Khan, younger brother of the complainant, was married with Mst. Asima and Qaiser Khan respondent No.1 being interested in the lady disliked her marriage with Irfan Khan. On the eventful day, the complainant alongwith Muhammad Khan, his maternal-uncle were taking tea at the hotel of Bashir Khan, when Ahmad Khan and Qaiser Khan called Irfan Khan at the hotel from his house and suddenly Qaiser Khan with a loaded gun with him raised Lalkara to kill Irfan Khan, whereas Amjad Khan taking gun from Qaiser Khan fired at Irfan Khan, who succumbed to the injuries before getting medical aid. The doctor, who examined the deceased, declared the injuries ante-mortem and sufficient to cause death in the ordinary course of nature.

3. Learned Additional Sessions Judge on the basis of the opinion expressed by the D.S.P./S.D.P.O. City Circle and the Superintendent of Police (Headquarter) taking the view that probably it being not an intentional murder, the case would fall within the definition of Qatl-e-Khata, punishable under section 319, P.P.C. granted bail to the respondents.

4. Learned counsel for the petitioner contended that the opinion rendered by the police officials during the investigation is not based on any evidence and that the same has no value to be considered for the purpose of bail in a case of capital punishment. He argued that the learned Additional Sessions Judge ignoring the evidence available on the record, raising a presumption of Qatl-e Khata has wrongly extended the concession of bail to the respondents.

5. Learned counsel appearing on behalf of the State fully supporting this application argued that the learned Additional Sessions Judge was not justified in granting bail to the respondents on such artificial grounds.

6. Learned counsel for respondents Nos. l and 2 with reference to cases of Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Muhammad Jameel v. Shafqat Bari and 4 others 1996 SCMR 1562 contended that the discretion exercised by the learned Additional Sessions Judge in absence of a very strong ground is not interfereable. He argued that the perusal of the story narrated in the F.I.R. shows that the accused and the deceased being close friends were enjoying the company of each other, when suddenly loaded gun went off by chance and hits the deceased, therefore, there being no occasion to commit an intentional. murder, it can be visualized in the given facts that it was only a Qatl e-Khata and not Qatl-e-Amd. 7. 1 have heard the learned counsel for the parties at length and perused the record. There is no cavil to the proposition that the benefit of a slight doubt arising in the case is necessarily to be given to the accused even at bail stage. There can also be no departure to the principle settled by the Superior Courts that the bail once granted should not ordinarily be cancelled unless there is a strong ground in favour of recalling of the said concession. Notwithstanding the abovesaid principle the question of the exercise of discretion in a proper and judicial manner must be seen in the light of the facts of the individual case. The grant or refusal of bail under section 497, Cr.P.C. is judged on the basis of the material available in the nature of F.I.R. the statements of the witnesses, the I medical report and such other evidence collected during the investigation. The, opinion of the Investigating Officer is also relevant and persuasive value, if based on some material. The special defence plea at initial stage may cause doubt to the correctness of the prosecution case and if the circumstances directly or indirectly supports the defence version giving rise to the question whether the plea taken by the accused negating the prosecution version tentatively appeals to mind and apparently brings out the case from the ambit of an offence punishable with the sentence of imprisonment for a term more than ten years or an imprisonment for life or death can be considered a valid ground for the purpose of subsection (2) of section 497, Cr.P.C. However, ordinarily, the defence plea not spelling out from the prosecution case unless is established through the evidence at the trial cannot be considered at bail stage. The exercise of deeper appreciation of the prosecution evidence or the defence plea for the purpose of refusal or grant of bail cannot possibly be undertaken.

8. The examination of the record of the present case does not reveal any material in support of the opinion formed by the D.S.P. and the S.P. (Headquarter). The associate Investigating Officer of the D.S.P. and the S.H.O. of the concerned Police Station, who submitted the final report have not been able to refer any material in support of the opinion formed by them except the version taken by the accused during the occurrence. The complainant as well as the P.Ws. who have been named as eye-witnesses in the F.I.R. have assigned a specific role to both the accused. Qaiser Khan is attributed the role of instigation and taking out the gun from his house adjacent to the hotel, whereas Amjad Khan allegedly fired at the deceased. The medical evidence affirms the factum of death through a fire-arm injury. Therefore, the plea of accidental death and of individual liability cannot be entertained at this stage. Unless the reasons of disliking of the marriage of Irfan Khan deceased with Mst. Asima by Qaiser Khan given therein as motive for commission of offence is found false, it is difficult to hold that it was Qatl-e-Khata. The witnesses in their statements under section 161, Cr.P.C. categorically supporting the prosecution version given in the F.I.R. stated that the accused caused intentional murder of the deceased. Learned State Counsel as well 4 the police officials, present in Court, have not been able to show any material on record contrary to the prosecution evidence. The calling of the deceased by the accused to the hotel and going on of the gun accidentally and hitting the shot to deceased by chance on chest did not appear to have happened in normal course. It is observed that the special plea of Qad-e Khata unless is proved at the trial through evidence, no presumption could be raised for the purpose of grant of bail. The general features of the case do not suggest the invocation of provisions of subsection (2) of section 497, Cr.P.C. for the purpose of grant of bail. Qatl-e-Khata has been defined in section 318, P.P.C., which reads as under:- "

318. Whoever, without any intention to cause death of, or cause harm to, a person, causes death of such person either by mistake of act or by mistake of fact, is said to commit Qatl-e-Khata." The question that in what manner and how, due to mistake of act or mistake of fact the crime was committed being a matter of evidence the plea of Qatl-e-Khata by discarding the direct evidence in the hand of prosecution in support of the allegations of Qatl-e-Amd is not entertain able at bail stage. The special plea raised by the accused .in their defence unless is proved through evidence cannot be pressed as a ground for bail. The submission of challan by the police under section 319, P.P.C. does not debar the Court from drawing a correct conclusion on the basis of given facts. In order to ascertain whether reasonable grounds exist or not, the Court should not enlarge the scope of section 497(2), Cr.P.C beyond the facts of the case and should restrict itself to the material placed before it by the prosecution to see what tangible evidence is available against the accused, which if left unrebutted may lead to inference of guilt. If the material placed before the Court apparently satisfies the reasonableness of the evidence of the guilt, the exercise of discretion for grant of bail in favour of the accused is not proper. The grounds of bail in the cases punishable with death or life imprisonment should be determined judiciously having regard to the facts and circumstances of that case and the Court should not minutely examine the merits of the case or defence plea for ascertaining the question of reasonable ground for the purpose of subsection (2) of section 497, Cr.P.C. The reasonable ground as envisaged under section 497(2), Cr.P.C. must mean grounds which appeal to a reasonable and prudent man. Undoubtedly, ire benefit of reasonable grounds arid doubt, if any, would necessarily go to the accused and bring the case within the purview of section 497(2), Cr.P.C. but artificial and fanciful grounds on the basis of presumption cannot be called reasonable grounds. The consideration froth grant of ball and for cancellation thereof are altogether different and once bail is granted by a Court, then only strong and exceptional grounds would require for its cancellation and a superior Court does not interfere in normal circumstances but if the reasons given for grant of bail are artificial, fanciful or arbitrary, the rule will not be applicable.

9. In the present case, the tentative assessment of the prosecution evidence in the nature of statements of P.Ws. under section 161, Cr.P.C. and medical evidence would show the reasonable grounds to believe that the respondents have committed an offence falling within the purview of section 302, P.P.C. The mere application of section 319, P.P.C. by the police does not restrict the Court from not going beyond the' said provisions of law. If the justice so demands, it is the duty of the Court to proceed independently on the basis of the facts of the case. Apparently, the case falls within the purview of section 302, P.P.C. and not section 319, P.P.C.

10. In the light of above discussion, I am of the view that the learned Additional Sessions Judge without attending the law properly and exercising the jurisdiction judicially extended the concession of bail to the respondents, therefore, this application is allowed and the bail granted to respondents Nos.1 and 2 vide order, dated 25-4-1998 by the learned Additional Sessions Judge is recalled. Q.M.H./M.A.K./A-348/L Application allowed.