1971 P Cr (PLP)

3. At the time of granting bail to the respondents, I took into consideration the post‑mortem report and finding that the death of the deceased was the result of shock caused by multiple injuries eight of which were bruises or abrasions and three were lacerated wounds, I came to the conclusion that the question requiring determination at the trial would be, whether the petitioners were guilty of the commission of murder or of some lesser offence.

4. My order granting bail to the respondents has been challenged on the ground that in the presence of direct evidence of assault by the respondents on the deceased, the medical evidence should not have been taken into consideration and should not have been assessed in forming an opinion, as to whether, offence committed would be murder or a lesser offence. In support of the aforesaid contention, learned, counsel for the petitioner relied on the case of Muhammad Aslam and others v. The State (P L D 1967 S C 539). It was observed, that where there was direct evidence of the assault by the accused on the deceased, what was the nature of the injuries caused by them and whether they were collectively caused with the intention of causing death was for the trial Court to judge. 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. In this case, the precise ground on which bail had been granted was the assessment of the medical evidence, as has been done by me in the case of the respondents. The observation of the Supreme Court, therefore, is fully applic able to the facts of the present petition.

5. I have also had the benefit of perusing the statements of two eye‑witnesses, namely, Sher Shah (P. W. 5) and Hamad Ali (P. W 7) and find that both of them have implicated the respondents in the murder of Mehboob Hussain. Their version is that they saw the deceased tied with d chain. He was lying on the ground with face downwards when the respondents inflicted injuries on him with sotas.

6. During the course of the pendency of the instant application for cancellation of bail, the respondents were committed to stand their trial, on the charge of murder, in the Court of Session by order dated 22nd July 1970. Its certified copy was placed on record by the learned counsel for the petitioner on 2nd November 1970. The following portions of the commitment order may be usefully reproduced:‑ "(a) The occurrence was witnessed by Ali Hussain P. W. 1, Sher Shah P. W. 5 and Hamad Ali P. W. 7. (b) Sher Shah and Hamad P. Ws. 5 and 7 respectively, have supported Ali Hussain P. W. 1 in all material details of the case." It has already been pointed out above, that Sher Shah and Hamad Ali P. Ws., whose statements have been placed on record, claimed that they had seen the respondents inflicting injuries with sotas on the person of the deceased. The result, therefore, is that there is not only direct evidence against the respondent but they have also, in the meantime, been committed to the Court of Session. In the case of Ghulam Farid and another v. The State (1969 P Cr. L J 240), it was contended before their Lordships of the Supreme Court, that mere committal was not by itself sufficient to make it appear to the Court, that reasonable ground existed for believing that the accused were, guilty of an offence punishable with death or transportation for life within the meaning of section 497, Cr. P. C. Their Lordships repelled the contention observing :‑ "We are unable to agree with this. Commitment is by itself sufficient to show that 'a prima facie case exists." Bail was refused to the petitioners. In the case of Muhammad Shafiq v. Muhammad Hanif and another (1970 S C M R 143), petition for special leave to appeal was filed in the Supreme Court against the order of the High Court for the grant of bail on the ground that there was serious doubt as to the participation of Muhammad Shafiq petitioner, because in the first information report, that was lodged with the police by Nawab, he was not named and secondly, that the High Court was wrong in taking the view that since the Magistrate, before whom the private complaint had been filed, had directed the issuance of non‑bailable warrants after taking evidence and coming to a finding that a prima facie case had been made out, no bail could be granted, it was observed by my Lord, the Chief Justice, Mr. Justice Hamoodur Rahman ;‑ "It is now well settled that in determining, this question, namely, as to whether reasonable grounds appear for believing that an accused person is guilty or not for the purposes of bail, the Court has not to examine the merits of the prosecution case or the plea of the defence or to make an appraisal of the material on the record but, as pointed out in the case of Khalid Saigol v. The State P L D 1962 S C 495 `merely' to look at the materials placed before it, by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left un-rebutted, may lead to the inference of guilt." It was further observed after considering the cases of Ghulam Farid (1969 S C M R 80) and Ahmad Bakhsh (1969SCMR266), that commitment by itself was sufficient to show that a prima facie, case existed that was also ordinarily sufficient for holding, that there were reasonable grounds for believing, that the person charged with the offence was guilty. In Criminal Appeal No. 136 of 1969, from the judgment of the High Court of West Pakistan, dated 18th August 1969, Boota v. Gharib Alam and another the question, which 'came up for consideration before their Lordships of the Supreme Court, was, whether bail granted to Gharib Alain respondent, by the High Court in a case punishable with death, had been granted on principles consistent with those laid down by the Supreme Court in several cases. The facts of the case were that Boota appellant lodged report against Gharib Alam respondent and three others for the murder of one Mst. Rabia Bibi alias Bashiran and attempted murder of Siddiq. After investigation by the police, in the challan submitted in Court, Gharib Alam was not shown as an accused, although his name ‑appeared in the first information report. Dissatisfied with the investigation of the local police, Boota appellant moved the Inspector‑General of Police, who entrusted the investigation to the Crimes Branch. When Gharib Alam came to know of this, he applied for bail before arrest in the Court of Additional Sessions Judge, Sheikhupura: He was granted interim bail, but the same was not confirmed. Gharib Alam then moved the High Court. His bail application was dismissed in limine. Subsequently, however, on another applica tion preferred by Gharib Alam, to this Court, he was admitted to bail: The last mentioned order was challenged and it is in connection therewith, that their Lordships of the‑Supreme Court' observed, that the learned Single Judge, who hart granted bail, should not have ignored the evidence which had been led by the prosecution before the committing Magistrate. It was found, that `five witnesses, who had been examined by the committing Magistrate, bad implicated Gharib Alam for the murder of Mst. Rabia. It was thus held : "In our opinion, in the presence of such evidence, it cannot be said that if it remains unrebutted, there was no reasonable ground for believing the accused persons to be guilty. At the stage of bail, the evidence is not to be evaluated but what is to be considered is whether upon the material brought on the record there was sufficient ground for believing the accused to be guilty.

7. Considering the dictums of their Lordships in the aforesaid cases, the fact that the respondents have been implicated by all the eye‑witnesses in the murder of Mehboob Hussain and during the pendency of this petition, they were committed to the Court of Session on the charge of murder. I am of the view that the respondents are no longer entitled to remain on bail. Thus the petition is allowed and the bail granted to the respondents by my order dated 12th February 1970, in Criminal Miscellaneous Petition No. 656 of 1970, is cancelled. Application allowed.