P L D 2009 Peshawar 28 (PLP)

DOST MUHAMMAD KHAN, J.

Petitioner seeks bail in case F.I.R. No.881 dated 30-11-2007 registered by Police Station, Katlang, Mardan for crimes under sections 302/34/148/149/427, P.P.C. read with section 512, Cr.P.C. Arguments heard and record perused.

2. The complainant Lal Badshah reported the present occurrence on 30-11-2007 at 1330 hours stating that his deceased son Munawar Shah along with his wife Gul Naz had gone to the house of in-laws and when were returning in a Pick-up No.3099/IDS along with minor son Hussain they were killed in way near village "Koz Miangan" and on receipt of information about the tragedy, he proceeded there and found the three dead-bodies lying there along with the Pick-up. He did not charge anyone nor suspected anyone for the crime.

3. During the course of investigation from the date of occurrence till 29-1-2008 no progress could be made and it was on 30-1-2008 that statement of the complainant was recorded under section 164, Cr.P.C. by the Illaqa Magistrate at the instance of the local police. The relevant portion of his statement runs as follows:-- "Now I knew and satisfied that accused Hayatullah and Ikramullah alias Mini sons of Amir Bacha along with other three unknown accused are involved in the murder of my son, his wife and my grandson. Motive for the offence is that the accused were dacoits and they were in search of their hunt and they signaled the Shehzor truck in which the deceased were travelling for the purpose of looting. and the Shehzor truck was not stopped. The above named dacoits/accused opened firing and as a result of which they were hit in the Shehzor Truck and were expired."

4. The present petitioner was already lodged in jail in another case F.I.R. No.17 dated 12-1-2008 under sections 302/324, P.P.C. thus on written request he was handed over to the police by the' order of the Court.

5. The petitioner has been refused bail by the Magistrate and the learned trial Court, thus he has filed the instant petition.

6. Except the mere bald statement of the complainant expressing satisfaction about the involvement of the accused which is based on figment of imagination uncorroborated and unsupported by any shred of evidence. Indeed there is no evidence of any nature involving the petitioner in the crime. Mere heinousness of a crime is no ground for refusal of bail and equally accused charged directly in the F.I.R. but the other materials collected during investigation exonerating him from the crime would have direct bearing on the charge against him, therefore, the Magistrates and the learned trial fudges shall discontinue the stereo type approach by jumping at the conclusion that the accused is/are directly charged in the F"I.R. They should carefully read the provisions of section 497, Cr.P.C. and for their guidance subsections (1) and (2) of section 497, Cr.P.C. are reproduced below:-- "S.

497. When bail may be taken in case of non-bailable offence.--(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an Officer-in-charge of a police-station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

7. The legislature in its wisdom has used the phrase "reasonable grounds for believing" which are words of high degree, meaning and import, the same are not to be taken lightly. Bail can only be refused to an accused person if sufficient materials have been brought on record showing reasonable, ground to believe that the accused is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years' while subsection (2) creates an exception to the prohibition contained in the above subsection which provides that if there are no reasonable grounds for believing that the accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt the accused shall be released on bail.

8. The true line of distinction drawn by the Legislature in both the provisions cited above can be conveniently perceived by a judicial mind because in subsection (1) grant of bail to an accused person who is charged for offence/offences not punishable with 10 years imprisonment or more is discretionary with the Court. The prohibition imposed on such discretion is with regard to three categories of offences i.e. punishable with death or imprisonment for life or imprisonment for 10 years but this prohibition too is strictly qualified one by the words if reasonable grounds exist to believe that an accused person has been guilty of such offence/offences.

9. The learned Sessions Judges who are ordinarily the trial Courts for such offences do not observe reasonable care while dealing with bail matters conveniently ignoring that they in the process deal with the liberty of a citizen and in cases where bail can be granted as of right they carelessly refuse bail being influenced by the heinous nature of the crime or because the accused is directly charged in the F.I.R. without adverting to the entire data/materials collected during investigation and to make tentative assessment thereof to ascertain reasonability of the grounds connecting or exonerating the accused thus, in genuine cases bail is refused to the accused unnecessarily taxing the High Court with extra work to do. In the case of Hafiz Khuda Bakhsh and another v. The State PLD 1988 SC 413 the Hon'ble Supreme Court has held that suspicions howsoever strong might be would not amount to a reasonable grounds and in a similar way the apex Court in the case of Syed Ahmed Ali Rizvi and another v. The State PLD 1995 SC 500 has held that when an accused person becomes entitled to grant of bail then grant of bail is not a favour but becomes right of an accused person which cannot be refused on any other ground muchless hypothetical one.

10. The learned trial Courts shall, therefore, take pain while deciding bail petitions and shall not decide it in a mechanical and routine manner but with careful judicial approach by making tentative assessment of all the materials available on record in each case and shall not be deterred by the fact that the offence is of heinous nature or because the accused is directly charged in the F.I.R. In the case of Khalid Javed Gillani v. The State PLD 1978 SC 256 it was held by the apex Court that although deep appreciation of evidence and drawing conclusions therefrom is not warranted but tentative assessment of materials brought on record including the defence plea is permissible course thus, we expect of the learned Sessions Judges to fairly attend to the facts of each case in the matter of bail and in the light of guiding principles after making tentative assessment of the facts have to grant or refuse bail but in no manner they shall act in vacuum or in a routine manner as we have noticed with concern in so many cases. For what has been discussed above, this petition is allowed and the petitioner is granted bail on furnishing bail bonds in the sum of Rs.5,00,000 (Rupees five lacs) with four local reliable sureties each in the like amount to the satisfaction of the trial Court/Illaqa/Duty Judicial Magistrate with further direction that at the time of attestation of bail bonds, the Court shall satisfy itself that the sureties are not only financially sound but are also reliable and local. Detailed reasons for short order of the even date. The Additional Registrar (Judicial) shall circulate this judgment to all concerned. H.B.T./192/P Bail granted.