1991 PLP 2001 (MLD)

Adverting to the second contention of Mr. A.Q. Halepota there is no doubt that the applicant had not gone to Jinnah Hospital to bring Dr. Fozia but it was driver Ishaq who had gone to bring her. However, according to PWs. Dr. Munawar Sultana, Dr. Saima and Dr. Talat driver Ishaq had told deceased Fozia that she was called by applicant Rahim Bux Jamali and it will not be proper to comment on this piece of evidence as to whether it could be used as evidence against the applicant. However, according to PW Akhtar Ali Jamali Dr. Fozia remained with the applicant during the night intervening 8th and 9th January, 1990, and PW Akhtar Ali Jamali is said to be friend of the applicant. PW Akhtar Ali Jamali has further stated that he had given one set of keys of flat in question to the applicant, while the other remained with Mr. Jamnadass. A piece of carpet and a pillow recovered from the flat in question were found to be blood-stained and blood was of the same group as that of the deceased. No doubt the two articles were not pointed by the applicant but the fact remains that the same were recovered from the flat which is allegedly occupied by the present applicant. As far as the question of preparing forged Nikahnama was concerned, it is to be seen at the trial as to what evidentiary value should be attached to the above piece of evidence. At present there are 3 witnesses who have stated that the applicant had got Nikahnama prepared. In addition to the above evidence there is evidence of Dr. Munawar Sultana that she saw photograph of deceased Fozia in newspaper, she rang up the present applicant who went and met her. She showed the above newspaper to him but the applicant disputed the identity of deceased Fozia. Later on he asked Dr. Munawar Sultana not to disclose the above facts to any one. Mr. Syed Sami Ahmed learned counsel appearing for the State has relied upon the following decisions: (1) Khalid Saigol v. The State PLD 1962 SC 495, wherein while considering the question of bail in acquittal appeal it was observed that:-- "While deciding the question of grant of bail the exercise of a discretion vested by law in a Court must be upon sound judicial principles after taking into account the facts and circumstances of each case. The nature of the accusation and the heinousness of the crime alleged are, no doubt, very relevant circumstances to be taken into consideration, but by themselves they are not the only circumstances, as we have endeavoured to point out, even under sections 496 and 497 Cr.P.C." (2) Abdul Rashid v. The State PLD 1972 SC

295. In this case their Lordships were pleased to refer this matter to the Full Court with the following observations:-- "Considering the present fluid and uncertain state of the law relating to bail in cases of offences punishable with death or transportation, and the lack of uniformity in the application of the law, resulting in confusion in the Courts, it appears desirable that the following questions be referred to the Full Court for its decision." (3) In Ch. Abdul Malik v. The State PLD 1968 SC 349, it was observed by their Lordships of the Supreme Court that: "There is no doubt whatever about basic essentials governing grant of bail. The first is that bail should never be withheld as a punishment. In cases of non-bailable offences coming before Courts, grant of bail is a relief resting primarily in the discretion of the Courts to be exercised by with the due care and caution as a fundamental incident of exercise of judicial power, taking into account the facts and circumstances of each case orders on bail application should not be considered as routine orders involving as they do the liberties the citizens, they must be carefully balanced and weighed in the scales of justice and the requirement of the relevant law, as contained in sections 496-498, Cr.P.C. There is however a further limitation on the Court's discretion in regard to cases of offences which are punishable with death or transportation for life, which is that the accused shall not be released on bail in such cases if there are reasonable grounds for believing that he has committed such an offence." However, their lordships were pleased to dismiss the petition for leave to appeal and directed the applicant to approach the High Court for bail if so advised. There is no cavil with the principle enunciated in the above decisions and the law is now more or less settled on the question of grant or refusal of bail. Mr. A.Q. Halepota learned counsel has relied upon the following decisions: (1) Ghulam Asghar v. The State 1985 SCMR 1946, wherein, while considering the question of grant of bail the confession made by the accused was taken into consideration and since in the confession the petitioner had taken plea of right of private defence, the petitioner was allowed bail while relying upon his confession. (2) State v. Nayyar Mirza and 2 others 1989 PCr.LJ 1005, wherein it was observed by a Division Bench of this Court after taking into consideration number of cases that:-- "It is settled that the evidentiary value of a retracted confession against a co-accused is small and that the fullest corroboration of such a confession is necessary, even where the confession is true and voluntary." (3) Abdul Razzaq Mania v. The State 1988 SCMR 653, wherein it was observed that:-- "While considering the question of grant of bail, the Court has to carefully scrutinise the material placed before it in order to find out the question of complicity of the petitioner. However, the Court should not comment as to whether the circumstances appearing in the evidence and before the Court against the petitioner would constitute sufficient proof of his guilt as that would amount to elaborate sifting of evidence and may prejudice either party at the trial. While considering the points raised by the learned counsel in his arguments, the Court was pleased to grant bail to applicant." (4) Zafar Iqbal v. The State 1986 PCr.LJ 2003, wherein the name of the accused did not appear in the F.I.R. nor there was any eye-witness in the case. Even there was no incriminating recovery nor any judicial confession was made by the accused and therefore, he was allowed bail. As far as the decision in the case of Ghulam Asghar was concerned, there is no cavil with the proposition that the Court can take into consideration judicial confession even at the time of considering the question of grant of bail. Likewise, the Court can consider the value of judicial confession made by co?-accused as held in the case of Nayyar Mirza. It is also a settled principle of law that the bail applications cannot be decided in vacuum and the evidence which is likely to be produced at the trial has to be considered without going into deeper appreciation of the same. As far as the case of Zafar Iqbal was concerned, there was no evidence worth the name against the applicant and therefore, he was granted bail. In view of the above factual as well as legal position, since there is circumstantial evidence against the applicant it cannot be said at this stage that there are no reasonable grounds to believe that the applicant has not committed a non-bailable offence, and therefore, he is not entitled to bail at this stage. The application is accordingly rejected. The observations made by me in the above order are tentative in nature, and the learned trial Judge shall hear and decide the above case uninfluenced by whatever has been observed. The applicant can repeat his bail application before the learned trial Judge, after PW Javed Bhutto, Akhtar Jamali, Lady Dr. Munawar Sultana and Lady Dr. Saima are examined. The application was dismissed by me, by a short order on 16-9-1990 and these are the reasons for the order. H.B.T./R-179/K?????????????????????????????????????????????????????????????????????? Application dismissed.