2003 PLP 102 (YLR)

While controverting the arguments raised by the learned counsel for the complainant/petitioner, Ch. Muhammad Ibrahim Zia, the learned counsel for the accused/respondent, has vigorously contended that reasonable grounds do not exist to believe the prosecution story. The learned counsel further submitted that it transpires from the record that the accused/respondent did not commit the murder of his wife rather she committed suicide. According to him, this fact lends ample support by the post mortem report which describes that shot of gun was fired from a very close range and a pellet was recovered from the dead body. Thus, initial post‑mortem report of the deceased and the subsequent report of the medical board are destructive to each other. The learned counsel has also submitted that the prosecution has cited four eye‑witnesses amongst them, one Alam Hussain (P.W.6) has been given up by the prosecution whereas Shahdad Khan has been declared hostile and he has not supported the ocular version of Qazi Zahir‑ud‑Din and Mst. Khair‑un‑Nisa, therefore, the incident being of further inquiry, the trial Court was justified to extend the concession of bail in favour of the accused/respondent. The learned counsel has pointed out that Qazi Zahir‑ud‑Din is real brother of the deceased whereas Mst. Khair un‑Nisa is her mother and furthermore they are not natural witnesses who reside at a far flung place from the site of occurrence, therefore, their evidence cannot be relied upon. The learned counsel has maintained that according to the standard of the evidence produced by the prosecution the punishment of 'Qisas' cannot be imposed upon the accused, thus, it will not be in the interest of justice to recall the concession of bail. The learned counsel has finally submitted that in the instant case the prosecution seeks cancellation of bail but the bail once granted cannot be cancelled unless it is proved that the Court below has not exercised its discretion in a proper and legal manner. The learned counsel defended the impugned order being a careful and just exercise of discretionary powers. The learned Advocate for the accused/respondent, in support of his arguments, placed reliance on the following authorities:‑‑ (1) 1994 SCR 66, (2) 1996 PCr. LJ 1905‑1914, (3) 1997 SCR 125, (4) 1997 PCr.LJ 1366 and (5) 1998 PCr. LJ

371. I have carefully taken into consideration the arguments raised at the Bar perused the record and the case‑law cited by the learned counsel for the parties. In the instant case the first point which needs consideration is as to whether the second bail application was competent before the trial Court or not. It is, now, an admitted position of law that if first bail application is once rejected on merits, the second bail application cannot be filed without fresh grounds or the other grounds which were available at the time of the first bail application but not pressed. In order to resolve this point, it will be appropriate to observe the impugned order as well as the order recorded by the trial Court on the first bail application. It transpires from perusal of paragraphs Nos.7 and 8 of the order, dated 29‑3‑2002 that the trial Court refused to extend the concession of bail to the accused /respondent after examining the evidence of two eye‑witnesses namely Qazi Zahir‑ud‑Din and Mst. Khair‑un‑Nisa alongwith Qazi Naseer‑ud‑Din and Naseem ul‑Hassan, P.Ws., who testified the alleged recoveries made on the pointation of the accused and prima facie, no contradiction was found in the statements of the P.Ws. by the trial Court. After cursory perusal of both the medical reports it was also observed by the Court below that prima facie the deceased was murdered and the instant case was not of suicide whereas in the subsequent bail application the trial Court allowed bail to the accused on two grounds, (firstly) that Shahdad Khan, P. W. was declared hostile and Alam Hussain P. W. , was abandoned by the prosecution, (secondly) in the light of two inconsistent and contradictory medical reports the case of the accused/respondent being doubtful also required further inquiry. A perusal of bail order dated 29‑3‑2002 makes it crystal clear that at the time of disposal of first bail petition not only the evidence of four P. Ws. was considered but both the above mentioned medical reports were also examined by the trial Court, therefore, applying the admitted principle of criminal jurisprudence i.e. the ground which was considered at the time of first bail application and dispelled by the trial Court, cannot be considered as a fresh ground and made the basis of any subsequent bail application. On this account, the trial Court has committed an illegality while allowing bail to the accused/respondent. In this context, I am fortified by a case reported as The State v. Zubair and 4 others (PLD 1986 SC 173). The relevant paragraph No.8 appears at p.177 of the report which reads as under:‑‑ "It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application." The same view was followed in Ghulam Rasool's case (2000 MLD 1058) wherein the learned Judge in paragraph No.3 at p.1060 of the report opined as under:‑‑ "After hearing the learned counsel for the parties and going through the record I am in agreement with the learned counsel for the petitioner that the learned Additional Sessions Judge, Rajanpur was not within his jurisdiction to entertain and decide a subsequent bail application of respondent No.1 so as to admit her to bail on grounds which had already been the subject‑matter of consideration in the earlier order of refusal of bail to respondent No.1 by the same learned Court on 3‑2‑1999. In this respect the reliance placed by the learned counsel for the petitioner on the abovementioned Zubair's case is well‑placed and quite justified." Keeping in view the above mentioned principle of law it can safely be laid down that the trial Court was not competent to base impugned order on the ground of two inconsistent and contradictory medical reports alongwith the appraisal of the ocular account of the prosecution, already considered in the first bail petition. It may be observed at this stage that Dr.Naseer Ahmad Shaikh (P.W.16) who has performed the autopsy of the deceased, has also not ruled out the chance of murder. The relevant part of the remarks of Medical Officer follows thus:‑‑ "Manner of death is more favourable to suicide but chance of homicidal contact fire could not be ruled out especially when the deceased leaned over the barrel to push it away in self‑defence. " The Medical Board has categorically ruled out the chance of suicide. The Medical Board after examining dead body opined as under:‑‑ "Inferenee: (a) It was closed shot running obliquely in the epigastric region (b) The cause of death is haemorragic shock due to intra‑peritoneal haemorragic. (c) Violence marks present over the body and these are anti‑mortem. Opinion: (a) Homocide. (b) Anti‑mortem violence. (c) Gunshot wound ‑shock. (d) No evidence of suicide." It might be useful to mention here that the medical evidence is required only for the purpose of corroboration and confirmation and it is not by itself sufficient to connect an accused with the commission of non‑bailable offence alleged. It will also not be out of place to note that the conviction in a criminal case can be recorded on the basis of ocular version of P.Ws. even without any corroboration provided the P.Ws. are worthy of credence. My this view stands fortified by a case‑law titled as Muhammad Javed v. The State (2001 YLR 2923) whereby at p.2929 of the report the following principle was enunciated:‑‑ "It may also be highlighted that the value of medical evidence is only for the purpose of corroboration and the same is in the nature of confirmatory evidence. The medical evidence by itself is not sufficient to connect an accused with the commission of a non‑bailable offence alleged. It is a settled principle of law that a conviction in a criminal case can be recorded even on the statement cal eye‑witnesses without any corroboration provided the witnesses are telling the truth. Corroboration is not a rule of law but the same is only a rule of prudence. It is also settled principle of law that corroborative evidence should not be of the same probative force as that of the direct evidence. Moreover, what type of corroboration' in a particular case will be sufficient depends upon case to case. Therefore, it cannot be laid down as a universal rule that there must be a corroboration in all criminal cases in order to sustain the conviction of an accused person. Corroboration simply confirms and corroborates the truth of the story narrated by the eye‑witnesses. However, at this stage of bail we do not deem it proper to dilate upon detailed discussion of the corroboration or its probative force or how much corroboration or to what extent it is required in a particular case or even not at all in view of the facts and circumstances of the case." The next question which requires consideration as to whether the incomplete evidence of Shahdad Khan, P.W. who was declared hostile and by giving up Alam Hussain, P.W. the case of bail can be made out or not. Before discussing the effect of aforementioned facts, it will be relevant to note that fresh grounds were available to the accused/respondent to file a second bail application because it was submitted after the recording of the evidence of Qazi Abdul Rasheed, P.W., incomplete evidence of Shahdad Khan P. W. and after giving up Alam Hussain P.W. In this manner, the subsequent bail petition was competent before the trial Court. The perusal of the evidence recorded by the trial Court and the material collected by the Investigating Agency, prima facie, suggests that the reasonable grounds exist to connect the accused with the commission of the offences charged with. A cursory perusal of the evidence of Shahdad Khan also reels that he has, prima facie supported the prosecution version to the extent that he reached at the spot soon after the occurrence and found the deceased injured by gun fire shot as well as the accused who also told the P.W. that he has murdered his wife. So far as the evidence of Qazi Zahir ud‑Din and Mst. Khair‑un‑Nisa, eye witnesses, is concerned, alongwith the evidence of Qazi Naseer‑ud‑Din and Qazi Naseem‑ul‑Hassan, was also appraised by the trial Court while disposing of the first bail application with an observation that this evidence was prima facie found sufficient to implicate the accused/respondent with the offence. Needless to add that a particular " number of witnesses is not required in order to record conviction in a criminal case rather it can be recorded on basis of sole eye witness, if rings true. In Khushhal Khan's case this Court has upheld the death sentence of the convict/appellant recorded by the Court below on the evidence of a minor witness. Mst. Nahida Begum. So far as this argument of the learned counsel for the accused/respondent is concerned that tire was made from a very close range, therefore, it is not a case of murder but of suicide, does not appear to be well‑founded at the bail stage, as observed earlier. The Court at the bail stage has to take a tentative view while looking into the F.I.R. the statement of P. Ws. recorded under section 161, Cr.P.C. and other incriminating material collected by the Investigating Agency connecting the accused with the crime and it is neither proper nor permissible for a Court to dive deep into the merits of the case for the purpose of determining whether person whose trial has to be held by subordinate Court should be enlarged on bail because it is the function of the trial Court. Similarly, I am not inclined to hold that either the eye‑witnesses are chance witnesses or natural because such type of any observation by this Court may injure the case of the either party. Therefore, I leave it to the wisdom of the trial Court. I also find a little force in this plea of the learned counsel for the accused/respondent that in the instant case the punishment of death as 'Qisas' cannot be imposed upon the accused/respondent, therefore, the concession of bail cannot be recalled. Section 302(b) of the Azad Penal Code (Amendment) Act, 1995 (Qisas and Diyat Act) empowers the Court to impose punishment of death or imprisonment for life as Tazir having regard to the facts and circumstances of the case. Therefore, when it is proved that an accused has committed ' Qatl‑e‑Amd' but he cannot be punished with death as 'Qisas', the punishment of death or imprisonment for life as Tazir can be imposed upon him or where according to the Injunctions of 'Islam' the punishment of 'Qisas' is not applicable, the accused can be punished with imprisonment of either description for a term which may extend to 25 years, therefore, the argument is accordingly repelled. As far as the case‑law cited by the learned counsel for the accused/respondent is concerned, is quite distinguishable. Needless to say, in a bail matter an authority of one case is hardly helpful to another case because each case has its own peculiar circumstances. For instance, in Muhammad Sarwar's case (1996 PCr. LJ 1905), the petitioner was released on bail because according to the narration in the F.I.R. the accused was armed with 7 mm rifle but no empty of 7 mm rifle was recovered from the spot and none of the P. Ws. had received any injury and the prosecution dishonestly suppressed 23 injuries on the person of two accused. Muhammad Arshad's case (1996 PCr.LJ 1914), does not deal with the bail matter. The conviction and sentence of the appellant was set aside by the learned Judges of Lahore Higb ‑ourt because the discrepant ocular account of chance, interested and inimical witnesses was not relied upon without independent corroboration and the prosecution evidence was also disbelieved with regard to co‑accused who stood acquitted of the charge. In Muhammad Younis' case (1997 SCR 125) it was made imperative for the Court to consider plea taken by the accused at the bail stage alongwith material placed by the prosecution. In the instant case, it was also opined that in cases of non‑bailable offences grant of bail is primarily in the discretion of the Court and it should not be disturbed unless it is not exercised with due care and caution. The same principle was reaffirmed in Anayatullah's case (1997 PCr. LJ 1366) and Ajaz Ahmad's case (1998 PCr.LJ 371). There is no cavil with the principle enunciated above by the apex Court but as observed above, that an authority in a criminal case is relevant only to the facts of the case in which the same is given. It will, thus, be noticed that the trial Court has committed an illegality to reconsider the evidence of Qazi Zahir‑ud‑ Din, Mst. Khair‑un‑Nisa, Qazi Nascer‑ud -Din and Qazi Naseem‑ul‑Hassan alongwith the corroboratory evidence of the post mortem report and the report of Medical Board which was already taken into consideration at the time of first bail application. Furthermore, the trial Court also fell in error while holding that by giving up Alam Hussain, P.W. and by declaring Shahdad Khan as hostile witness, the case of the accused/respondent required further inquiry. As stated earlier, the prosecution has produced two eye‑witnesses in support of its case whereas the evidence of three other witnesses of recovery has been recorded by the trial Court and evidence of Shahdad Khan is yet to be completed alongwith the evidence of other 17 P.Ws. The weapon of offence, a E .12 bore gun, has also been said to be recovered from the accused/respondent and it, prima facie, appears that the accused/ respondent was armed with .12 bore gun and he has murdered his wife by firing with the gun. The case of the accused/ respondent falls within the prohibitory clause of section 497, Cr.P.C. but all these facts were not considered by the trial Court and it disposed of the bail petition in a hasty and arbitrary manner even without waiting for the completion of the statement of Shahdad Khan (P.W.7), thus, the Court below failed to exercise its discretion in accordance with the settled principles of law governing the bail matters which implies the presence of arbitrary determination and whimsical thinking. In this view of the matter, the impugned order is not sustainable. For the reasons listed above, I entertain this revision petition and set aside, the impugned order dated 26‑6‑2002. The accused/respondent is on bail. His bail bond is cancelled and it is ordered that he shall be taken into custody and be lodged in judicial lock‑up. Bail cancelled. N.H.Q./46/Sh.C.(AJ&K)