P L D 1996 KARACHI 236 (PLP)

The applicant seeks cancellation of bail granted to respondent Yousuf by learned and Additional Sessions Judge, Karachi, West as per Order dated 27‑11‑1994. The facts relevant for decision of this application are as follows:

2. It is alleged that on 28‑10‑1992 at about 5‑45 p.m. respondent Yousuf due to old animosity had abused deceased Mir Afsar and caused an injury with an axe on his neck. He was taken to Abbasi Shaheed Hospital where he expired on the same day. The applicant, who is brother of the deceased, was informed about the incident by P.W. Yousuf son of Noor Muhammad. The incident was witnessed by P.Ws. (1) Abdul Salam, (2) Yousuf Milkman, (3) Abdur Rashid, (4) Muhammad Shafiq and others. The applicant lodged F.I.R. No.82 of 1992, which was registered at Police Station Surjani Town, under section 302, P.P.C./Qisas and Diyat Ordinance. Respondent Yousuf was arrested on 29-10‑1992. On completion of investigation charge‑sheet was submitted before the concerned Court.

3. Necessary charge under aforesaid section was framed against the respondent. T~^ case proceeded and the statements of applicant/complainant Sher Akbar, and P.Ws. Abdul Salam, Muhammad Younus, Yousuf, S.I.P. Syed Najmul Hassan were recorded.

4. Learned Trial Judge granted bail to the respondent on the grounds of further enquiry and statutory delay,

5. Mr. Gul Zaman Khan, learned counsel for the applicant strenuously argued that in this case there is no scope of further enquiry, yet, the learned Trial Court granted bail on said ground. He also submitted that learned Trial Court has not given tentative opinion that there are no reasonable grounds to believe that the respondent had committed the offence and that there are reasonable grounds for further enquiry. Learned counsel also contended that the Trial Court has exercised the discretion on a totally wrong premises and in detail examined the prosecution evidence which at the bail stage is neither permissible nor possible, In support of these contentions he cited Muhammad Aslam and others v. The State PLD 1967 SC 539; Khan Afsar v. Mehfooz Baig and another NLR 1981 Criminal 199 and Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765.

6. In Muhammad Aslam case, Hon'ble Supreme Court held that where there was direct evidence of the assault by the accused on deceased, the High Court was not competent to make an assessment of the medical evidence and form an opinion whether the offence committed by the accused fell under section 302 or 325, P.P.C. It was also held that the High Court was not to examine the merits of the prosecution case, as any expression of opinion about the merits of the case by the High Court may dispose of the case before the trial has started; In this case, the bail was granted by the trial Court and the same was cancelled, by the High Court. Supreme Court maintained the Order of the High Court. In Khan Afsar case, High Court had granted bail to the accused on the ground that the incident happened on the spur of the moment and the injury to the deceased was caused by a "weapon" which was picked up from the spot. The Supreme Court cancelled the bail of the accused and observed that whether such an act would amount to a lesser offence is a matter for the consideration of the trial Court and od that ground the bail could not be granted. In Haji Gulu Khan's case, it was held that, at bail stage, only tentative assessment is permissible and not the deeper appreciation. On this principle, the Supreme Court cancelled the bail of the accused granted by the High Court within an observation that High Court had exercised discretion on a totally wrong premises.

7. Mr. Nizamuddin Memon, learned counsel for the respondent submitted that the discretion has rightly been exercised by the trial Court in favour of the respondent as there are some contradictions in the statements of P.Ws. Abdul Salam and Muhammad Yousaf.

8. The incident was witnessed by P.Ws. mentioned earlier. Of them, Abdul Salam and Muhammad Yousuf have been examined, while the others two namely, Abdur Rashid and Muhammad Shafiq are yet to be examined. P.Ws. examined in the Court have fully implicated the respondent and held him responsible for the murder of the deceased. Likewise, the witnesses who are yet to be examined, have in their 161 statements implicated the respondent for causing death of the deceased.

9. For the purpose of bail only tentative assessment of evidence is permissible, which means, ex facie, impression one gathers from the circumstances which are known and tangible without having recourse to detailed analysis thereof. In this case, there are reasonable grounds to believe that the respondent is guilty of the said offence. The observation of the trial Court that only one blow was caused to the deceased and possibly it was due to some provocation from the deceased, could not be a ground for releasing the respondent on bail. Learned trial Court did not exercise discretion on sound principles and with due care. Limitation imposed by subsection (1) of section 497, Cr.P.C. for grant of bail in a Capital Case were not considered. In view of the evidence of the eye‑witnesses that the respondent is responsible for the murder of the deceased, prima facie, there is no question of further inquiry. Finding such as, entering into merits of the case and recording an observation which tend to prejudice the case of the prosecution, allowing bail to the accused in disregard of some of the salient facts of the case and legal principles applicable to them, and the observations suggesting that it was a case of mitigation of sentence, do not fall within the scope of tentative assessment of evidence. On merit no case for bail is made out and the impugned order is contrary to the established Judicial Principles.

10. As regards the ground of statutory delay, it is noted that the respondent was arrested on 29‑10‑1992 and was released on bail on 27th November, 1994 i.e. after 2 years and about a month. During said period, at least on 6/7 dates of hearing the case was adjourned at the request made on behalf of the respondent, although on these dates the prosecution witnesses were present. The observation of the trial Court that the respondent was not responsible for the delay is not correct. Had the adjournments not been sought by the respondent, the matter would have been finally disposed of much earlier. The finalisation of the trial has been delayed by the respondent. On this point learned counsel for the applicant cited the case Akhtar Abbas v. The State PLD 1982 SC 424 wherein the following was held: "We regret we are not impressed by these submissions, as we find that the requirements of the law is not fulfilled in this case, as at least on eight occasions adjournments were sought by the defence for one reason or the other. In such a case it does not appear to be the intention of the law to calculate the amount of delay caused by the defence. All that is necessary is to see whether the finalisation of the trial, has in any manner, been delayed by an act or omission on the part of the accused. In the present case, the delay is partly attributable to the accused. The submission that the date in question was not fixed for the hearing of the case is not correct. On the contrary, it is clear from the order sheet of the trial Court on these dates most of the witnesses were summoned and were present, but their examination had to be postponed owing to the request made by the defence counsel.

11. Under the circumstances, the respondent is not entitled to bail on the ground of statutory delay.

12. Mr. Habib Ahmed, learned counsel for the State has also not supported the impugned order and submitted that, under the circumstances, on both the above grounds, the respondent is not entitled to bail.

13. In consequence, this application is allowed and the bail of the respondent is cancelled. He is not present in the Court. The trial Court will get him arrested and remand him to custody accordingly. H. B. T. /S‑ I 186/K Application allowed.