1980 P Cr (PLP)

Abdul Qadir son of Haji Allah Yar has moved pre‑arrest bail petition (Criminal Miscellaneous No. 2360/13 of 1979 and similarly Abdul Rahim Khan son of Haji Bahara Khan and Mureed Ahmed son of Haji Abdullah Khan have moved petition for pre‑arrest bail (Criminal Miscellaneous No. 2372/13 of 1979). Since the petitioners in both the petitions are co‑accused and are accused ‑ of the same offences arising out of the same occurrence, both these bail petitions will, therefore, be disposed of together by this order.

2. Brief facts are that one Jalal Din son of Faqir Muhammad of village Musa Kanjun, District Rahimyarkhan, lodged an F.

1. R. No. 161/79 at Police Station, Saddar, Khanpur on 12‑6‑1979 and alleged that he was going to Khanpur. When he reached near Bagh‑i‑Bahar Road, Reham Ali son of Allah Ditta, Nathu son of Mohabat and Siraj son of Muhammad Din who were armed with lathis, attacked him (Jalal Din) and broke his leg and arm. It was further alleged that this attack was made at the behest of‑the present petitioners who were in conspiracy with the actual assailants. The culprits at the spot were proclaiming "now you (Jalal Din complainant) should taste the result of a firing case against Rahim, Mureed and Abdul Qadir and this attack is also a reply to the suit for recovery of money filed by Mukhtar against Rahim". It is also alleged that a few days ago the petitioners threatened the complainant of being murdered. Besides that, one Muhammad Tufail also disclosed the conspiracy to . him last night. This occurrence, according to Jalal Din, was witnessed by Muhammad Hussain son of Fateh Muhammad, resident of Chak No. 130/1‑L and Abdul Latif son of Jan Muhammad, resident of Chak No: 129/1‑L who were passers‑by.

3. The petitioners moved Additional Sessions Judge, Rahimyarkhan, for their bail which was rejected on 1‑7‑1979. Hence these petitions. The petitioners were admitted to interim bail by this Court on 7‑7‑1979.

4. The learned counsel for the petitioners seek bail before arrest on the following grounds:‑ ' (a) that there is party faction in the village and, therefore, the petitioners have been falsely implicated in this case; (b) the eye‑witnesses were passers‑by and have denied their presence at the spot in statements recorded by a Magistrate under section 164, Cr. P. C; (c) the medical evidence belies the manner of the attack and the nature of injuries, as alleged in the F. I. R; (d) the petitioners have been found to be innocent by two Police officers, namely, Saeed Ahmad the Investigating Officer and the S. H. O., in further investigation; (e) vicarious liability of the petitioners is yet to be determined the case of the petitioners is covered by subsection (2) of section 497, Cr. P. C.

5. Arguments have been heard and the record produced by the Investigating Officer has been carefully gone through. Malik A. R. Arshed, learned counsel for the complainant, has taken the following objections to the grant of bail to the petitioners:‑ (i) this Court cannot grant bail to the persons who are accused of offences under section 307/325,/109, P. P. C., as the case is covered by the mischief of section 497(1), Cr. P. C.; (ii) the petitioners being abettors, are equally liable with other co -accused; (iii) the petitioners have abused the concession of bail by spreading terror in the Ilaqa; (iv) statements under section 164, Cr. P. C., were got recorded by a Magistrate at Rahimyarkhan who is a caste‑fellow of the petitioners whereas there were three Magistrates at Khanpur; (v) investigation was not fair, as one , of the Investigating Officers was also a Baluch by caste; (vi) nature of injuries and the merits of the case cannot be considered by the Court at this stage.

6. The learned State counsel, Malik Mahmud Mali, does not oppose the confirmation of bail on merits. He; however, opposes bail on. the ground that the petitioners having bean‑ discharged; they cannot claim bail before arrest as there is no warrant of arrest issued against them. Thus, according to him, the petitions for bail have become infructuous. The petitioners' request for bail has been rejected by the Additional Sessions Judge, Rahimyarkhan, on merits, and not on the ground that there was no warrant of arrest. I am informed by the Investigating Officer that there is no discharge order passed by any Magistrate. He, however, states that the case against the petitioners has been recommended for discharge. But he has further disclosed that the case is being re‑investigated by the D. S. P., for the third time. Learned counsel for the petitioners has argued that in the special circumstances of ‑this case, there is actual restraint and great apprehension of arrest of the petitioners. The objection raised by the State counsel has not impressed me. In a genuine case, such as the present one, the Court can grant bail before arrest even if there be no warrant of arrest issued against the accused. There is no difference between a case of a person against whom a warrant of arrest has been issued and the one whose arrest, at the hands of the Police without a warrant, is imminent. There is a case registered against the petitioners which is now being further investigated by the D. S. P. The petitioners are accused of offences for which the Police officers can arrest the accused without issue of a warrant. Their bail having been rejected, the petitioners genuinely apprehend their arrest at any moment and there are such circumstances present in this case which amount to restrain on their liberty. 1, therefore, hold that the petitions have not become in fructuous as suggested by the learned State counsel. In arriving at this conclusion, I am fortified by the observations of the Supreme Court in the case of Sadiy Ali v. The State (P L D 1966 S C 589) which read:‑ "As a result of the above discussion, I have reached the conclusion that the rule laid down in Khushi Muhammad's case could be safely extended to a direction for the grant of bail to a person whose arrest, on a criminal charge by the Police, without a warrant, is proved to be imminent and certain, and where the circumstances would justify the grant of bail. Such an interpretation, in my humble judgment, is consistent with the language of sections 496 and 497 of the Code and involves no widening of the scope of the power given by section 498 as compared with its extent under the former sections. Indeed, such an order might be eminently called for in certain circumstances of grave character, affecting the liberty of a citizen. Indiscriminate grant of bail, however, merely on the request of a person, who appears . in Court, and thereby surrenders himself to that Court, without the other conditions for such bail being satisfied, would amount to an act of judicial extravagance which cannot be countenanced."

7. Before reverting back to the merits of this case, the objection of the learned counsel for the complainant that medical evidence and merits of the case punishable with death, imprisonment for life or ten years cannot be gone into by the Court, needs answer. In cases punishable with death, imprisonment for life or for ten years, the normal and accepted rule is that bail should be refused, if there appear reasonable grounds for believing that the accused is guilty of such offence. The prohibition contained in subsection (1) of section 497, Cr. P. C. is not absolute but is subject to certain exceptions. The Court may, under proviso I to section 497(1), Cr. P.. C., release on bail the following persons accused of such an offence :‑ (i) any person under the age of 16 years; (ii) any woman; (iii) any sick or infirm person. On the plain reading of section 497, there is another exception where Court may grant bail to person accused of such an offence if there appear no reasonable grounds for believing that he has been guilty of such an offence. Yet there is another exception provided in section 497(2) where the Court shall release the accused on bail if there are no reasonable grounds for believing that he has committed non‑bailable offence and that there are sufficient grounds for further inquiry into his guilt. On merits, bail could be granted only in such cases where no reasonable grounds exist for believing that the accused is guilty of such an offence or there is a case of further inquiry. The Court shall be failing in its duty if it does not consider all circumstances and merits of the case for grant or refusal of bail. The discretionary power of the Court to admit an accused to bail is not arbitrary but is judicious and is governed by well‑recognized principles. It may also be made clear that the Court not to embark on detailed inquiry but has only to see if reasonable grounds exist or do not exist for believing that an accused is guilty of such an offence. In order to find out reasonable grounds for belief, while con sidering the question of bail, the Court should look into the following material :‑ (i) Nature of the accusation in the F. I. R. (ii) Nature of the evidence, which prosecution proposes to examine, i.e., statements under section 161, Cr. P. C. and documents. (iii) Statements of witnesses under section 164, Cr. P. C. (iv) Medical evidence. (v) Defence raised during investigation. (vi) Police report under section 173, Cr. P. C. The Court may also consider' serious doubts apparent on the face of the record and any other special circumstance. Thus, the objection of the learned counsel for the complainant is not tenable. The Court has power to look into the merits of the case and make tentative assessment of its evidentiary value while considering bail application. Reliance in this behalf can be safely placed on Nadara v. Jamait Khan and another (P L D 1968 S C 310) and Khalid Javed Gillan v. The State (P L D 1978 S C 256). In the latter case, it has been observed by the Supreme Court as follows:-- "As the power conferred by this section is not an arbitrary power, it has to be exercised by reference to the material placed before the Court‑, and as to what that material should be, we cannot do better than quote the observations of Sajjad Ahmad Jan, J., in Manzoor and 4 others v. The State P L D 1972 S C

81. There Sajjad Ahmad Jan, J., observed that this material would consist of `the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence'. The other relevant circumstances would include evidence produced by the accused, and, as submitted by Mr. Sardar Iqbal, section 497, Cr. P. C., does not draw any distinction between. evidence produced by the prosecution and evidence produced by the accused. Now as bail has to be allowed or rejected on the basis of this material, it follows that the Court has to make a tentative assessment of its evidentiary value in order to decide a bail application, the moreso, as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it. But the section is a part of a Code under which the guilt or innocence of the accused has to be determined in the light of the evidence, which is produced when the trial of the accused begins, therefore, whilst deciding a bail application, the Courts, and especially the superior Courts, must refrain, directly or indirectly from giving any conclusive finding on the question of the guilt or innocence of the accused, and it maybe that an application for bail may fail, if it cannot be decided without an elaborate sifting of evidence. But because the Court must not prejudge the case of the prosecution or of the accused, this does not mean that the Court can shirk its obligation to decide the application for bail before it, and that application can only be decided by Court's belief about the material produced before it."

8. Turning to the merits, I find that Muhammad Hussain and Abdul Latif were alleged by the complainant to have witnessed the occurrence. These two witnesses showed their ignorance about the occurrence in their statements under section 164, Cr. P. C., and stated that their names were falsely mentioned in the F. I. R. Though the learned counsel for the complainant has seriously challenged the manner in which the statements were recorded by the Magistrate, yet the truth or otherwise of these state ments is to be determined at the trial. In Pervaiz Ahmad and another v. The State (1973 Cr. P L J 283), bail was granted on the basis of statements of witnesses made under section 164, Cr. P. C.

9. The allegations in the F. I. R. are that co‑accused of the peti tioners caused injuries to Jalal Din with blunt weapons but from medical report placed on record, it is found that nine injuries were inflicted on Jalal Din. Injuries Nos. 2, 4 and 7 were found by the doctor to have been caused by sharp‑edged weapon. The medical evidence being at variance with eye‑witness account of occurrence was held to be a sufficient ground for granting bail. Reference in this behalf may be made to the case of Abdul Hamid Khan v. The State (1978 Cr. L J 150).

10. The petitioners have also been found innocent by two Police officers in their investigation and further investigation is being conducted by D. S. P. Such finding by Police during investigation though not legal evidence yet makes the prosecution case needing further inquiry about its veracity: Case of the petitioners is thus covered by subsection (2) of section 497, Cr. P. C.

11. In the end, I may remark that there is no substance in the allega tion of the learned counsel for the complainant that the petitioners have misused the concession of interim bail, by spreading terror in the village. No material is brought on record to substantiate this allegation. At present, there is also no material to hold that the investigation was not fair.

12. In view of the above circumstances, the interim bail granted to the petitioners is hereby confirmed. It may be clarified, however, that the observations made above are in the context, of the arguments raised in these bail petitions and shall not, in any manner, prejudice the case of either party at the trial. Petition allowed.