1970 P Cr (PLP)

The four petitioners along with their co-accused Muhammad Hayat have been committed to stand trial for offences under section '148/302/149, P. P. C. etc., for the murder of one Muhammad Bashir, who allegedly died of brick-bat injuries resulting in the fracture of his parietal bones. Muhammad Hayat was allowed bail by the learned Sessions Judge whereas the petitioners' case for bail was not pressed before him and consequently bail was declined to them. They have now filed Cr. Misc. No. 4096/69 for their enlargement. Muhammad Muzaffar complainant has also filed Cr. Misc. No. 883/69 seeking cancella tion of bail allowed to Muhammad Hayat aforesaid. This order will dispose of the two petitions.

2. Learned counsel fort he petitioners in Cr. Misc. No. 4096/69 has vehemently contended that the mere existence of an order of commitment does not operate as an absolute bar to the enlargement of the accused persons and there have been cases where bail was allowed to persons accused of murder even after their committal to the Court of Sessions. Reliance is placed in this regard on Bachal Shah and others v. The Stare (P L D 1969 Kar. 170). It is also submitted that in Muhammad Ayub v. Muhammad Yaqoob and another (P L D 1966 S C 1003) and Ch. Tanbir Ahmad Siddiqi v. The Province of East Pakistan and others (P L D 1968 S C 188), their Lordships of the Supreme Court have clearly drawn out a distinction between the existence of a prima facie case and the existence of reasonable grounds to believe that an accused person is guilty of an offence punishable with death or transportation for life. It is emphasised that the mere fact that the petitioners came empty-handed and allegedly confined themselves to hurling stones, of which 36 pieces were taken into possession by the Investigating Officer, would per se be good enough to exclude the intention to murder. It .is also contended that there has been considerable delay in the lodging of the report with the police. The occurrence took place at Isha time on the 27th of December 1968 whereas the report was not lodged till about 10-30 on the following morning although the police station stood at a distance of seven miles.

3. Grant of bail is opposed by the learned counsel for Muhammad Muzaffar complainant who is petitioner in Cr. Revi sion No. 883/69. The learned counsel for the State is also in sympathy with the complainant. Relying on Ghulam Farid and another v. The State (1969 S C M R 80=1969 P Cr. L J 240) it is contended on behalf of the complainant that the mere existence of a prima facie case should normally be good enough to decline bail to the accused persons. It is next contended that this Court would not be within its rights to enter upon the assessment of merits of the case which would amount to pre-judging the points at issue resulting in inevitable prejudice to the prosecution case before actually the trial is held.

4. In support of the petition for cancellation of bail allowed by the Sessions Judge to Muhammad Hayat, learned counsel contends that even if it is assumed that Muhammad Hayat is unable to hold a stone in his right hand on account of a previous injury there is nothing to show that he could not do so with his left hand.

5. The correct legal position as it emerges from a careful consideration of the various authorities of the Supreme Court on the question of enlargement of persons accused of murder before or after commitment, is in my humble view as follows:- (1) Firstly, it cannot be laid down as an absolute rule of law that bail cannot be allowed in a case of murder to accused persons after their commitment, (2) secondly, that the making of an order of commitment amounting to the existence; of a prima facie case should normally be good enough to give rise to a reasonable belief that the accused person is guilty of an offence punishable with death or transportation and as such bail should not be ordinarily allowed A after commitment, (3) thirdly, that nevertheless there is a clear and tangible distinction between the existence of a. prima facie case and the existence of reasonable ground to give rise to a belief that an accused person is guilty of an offence punishable with death or transportation. (4) fourthly, while deciding an application fur bail, the Court should not determine an issue relating essentially to the merits of the case which could possibly be interpreted as amounting , to pre-judging the whole case.

6. The crucial point on whose determination materially depends the existence or otherwise of reasonable grounds to believe whether the petitioners are guilty of an offence punishable with death or transportation, is whether the size of the brick-bats or stones hurled, and of course used with a force resulting in the fracture of the parietal bones of the deceased, considered in the B light of the medical evidence, could justify the inference of the intention to kill. The question essentially relates to the merits of the case and it is not possible to give any finding on it one way or the other without causing prejudice to either party. Even otherwise a perusal of the order passed by the learned Sessions Judge clearly indicates that the petitioners' bail was not pressed before him. In the circumstances, relying on Ghulam F7arid and another v. The State. I do not feel inclined to allow bail to the petitioners

7. However, having seen Muhammad Hayat in Court, I fully endorse the view taken by the learned Sessions Judge that his right hand does not function properly as a result of a serious C and extensive injury received by him earlier. For that reason alone, I do not feel inclined to cancel his bail and to remand him to custody. Consequently, the two petitions stand dismissed.

8. The record of the case may be immediately returned to the learned Sessions Judge.