1971 PLP 351 (SCMR)

HAMOODUR RAHMAN, C. J.‑The petitioner was challaned along with 8 others for offences under sections 302/325/148/149 of the Pakistan Penal Code for the murder of one, Talib Hussain. Two of the co‑accused were granted bail before arrest by the High Court but bail was refused to the remaining seven, including the petitioner. Out of these only the petitioner again went up to the High Court for bail before arrest. During the pendency of the application in the High Court the case was committed for trial to the Sessions Court. The High Court rejected the application after observing that according to the prosecution witnesses the petitioner had beer: charged with having struck one blow on the head of the deceased which proved to be fatal. If this is proved to be correct and the petitioner is convicted by the trial Court, then he would be liable for an offence punishable with death or transportation for life. Learned counsel appearing in support of this petition contends that the decision of this Court in the case of Mohd. Shafiq v. Mohd. Hanif (1970 S C M R 143) needs reconsideration, for, the Courts below are misinterpreting the decision and refusing bail without consi dering as to whether there are reasonable grounds for believing that the applicant is guilty of an offence punishable with death or transportation for life in every case where a committal order has been made. In the present case, the injuries on the deceased were by a blunt weapon. Two were on his head and the third was on his arm. All of them were, according to the medical report, previous. The injuries on the bead were ascribed by all except one of the prosecution witnesses to the petitioner and his brother Shah Muhammad. In these circumstances, it can hardly be said that the commitment was manifestly unwarranted or that there were no reasonable grounds for believing that the petitioner was guilty of an offence punishable with death or transportation for life. Whether the witnesses should be believed or not and whether the plea of self‑defence set up by the accused should be accepted or not, will be for the trial Court to decide. Such disputed questions of fact cannot be decided in the bail application. At this stage the Court is only concerned with determining as to whether upon the material placed before the Court there are Reasonable grounds for believing that petitioner is guilty of having committed such a non‑bailable offence, as is punishable with death or transportation ‑for lie, if that material remains unrebutted. The High Court has not, as contended by the learned counsel, expressed any definite opinion as to the guilt of the petitioner or as to the nature of the offence committed by him. It will be for the trial Court to apply its mind to the evidence adduced in the case and to decide that offence, if any, has been committed and who are the persons proved to have committed that offence beyond any reasonable doubt. We see no reason to think that the trial Court will not apply its independent mind to the evidence adduced in the case without being influenced by any tentative opinion that may or may not have been expressed by the High Court in the bail matter. We see no necessity, however, of reconsidering our previous decision. This petition is, accordingly, dismissed. Leave refused.