P L D 1967 Lahore 1132 (PLP)

4. The deceased, Amir Muhammad Khan, was proceeding from the house of his Pir on the morning of 15‑5‑1966 after getting an amulet, when he was attacked in the way by the two respondents and their six co‑accused. Gul Aksar was armed with a pistol, whereas Master Khaki Zaman was the only person among the accused, who was armed with a gun. The other co- accused were also variously armed. It is stated that as soon as Gul Aksar saw the deceased he fired at him with his pistol, but the deceased ducked and lay on the ground, and the shot missed the mark. It was thereafter that the other accused made a concerted attack on the deceased, who according to his dying declaration was given injuries also with the butt of the gun. Gul Aksar did not cause any other injury, but is said to have been shouting and inciting his companions that the deceased be not spared. In the evidence led before the Court, the injury on the nose of the deceased, which resulted in the fracture of the bone under neath has been ascribed to Master Khaki Zaman and is said to have been caused with the butt of his gun. The doctor, however, has said in cross‑examination that the injury on the nose could have been caused by a fall.

5. An application for bail (Criminal Miscellaneous No. 3852 of 1966) was moved in the High Court on behalf of Master Khaki Zaman alias Zafar Mahmood, and another accused in this case, namely Khaki Zaman, Member. During the hearing of that application, I was taken through the evidence which had so far been recorded by the committing Magistrate. I granted bail to Khaki Zaman, Member, by my order, dated the 22nd of December 1966, but after referring to the dying declara tion of the deceased, and the evidence of eye‑witnesses, I dismissed the application, so far as Master Khaki Zaman was concerned and observed as under: "Since some part has been attributed to Master Khaki Zaman, I will not like to go into the merits of his case, and leave it to the proper court to assess the evidence. The committing Court can consider the question of bail after the evidence of all the prosecution witnesses has been recorded."

6. The last witness for the prosecution appeared on the 29th of December 1966, and deposed that the deceased had also made a statement before him naming Master Khaki Zaman as one of his assailants. The same day, an application was moved before the learned Magistrate, who it appears, without giving notice to the prosecution passed the impugned bail order. It is short order, and for the proper determination of the matter before me, it is proper to reproduce it in extenso: "Sardar Muhammad Ishaq, counsel for the accused present. I have today concluded the prosecution evidence in this case. The two eye‑witnesses have attributed one gun butt blow to the accused Khaki Zaman Master, which when they were confronted with their statements, under section 161, Cr. P. C. was not recorded there. His Lordship, Mr. Justice Ataullah Sajjad, in his order, dated 22‑12‑1966 has left it for the committing Court to grant bail to this accused." The accused is a teacher and is the only member of his family. He is in judicial lock up for the last seven months. Bail allowed in the amount of Rs. 10,000 with two sureties in the like amount."

7. The learned Sessions Judge, who was moved to cancel the bail granted to Master Khaki Zaman, inter alia on the ground that after his release on bail, he was trying to intimidate the witnesses, refused to interfere in the order. He referred to the facts of the case briefly and observed that he would have been greatly loath in admitting the accused to bail, but this fact alone was not sufficient in his opinion for the revocation of the impugned order of the Magistrate. Adverting to the argument, that the injury attributed to Master Khaki Zaman was not on a vital part of the body of the deceased, the learned Sessions Judge remarked that that fact alone may not be very significant, as the accused could be held constructively liable for the acts of his accomplices, if the evidence of his participation in the offence was accepted. The only reason, which prevailed with the learned Sessions Judge in declining to interfere with the order of bail was that the learned Magistrate had exercised his discretion, and the impugned order could not be characterised as manifestly perverse. He also remarked that the present case had an unusual feature, because the Magistrate had summoned six persons as Court witnesses (in fact only four had been summoned) and no body could, say, what turn the case would take, if those wit nesses were allowed to be examined by the Inquiry Magistrate.

8. In my opinion, the refusal of the learned Sessions Judge to interfere in the impugned order of the Magistrate was not legally justified. He had clearly stated that he would have been loath to grant bail to Master Khaki Zaman, but stayed his hands, because he found that the learned Magistrate had used his dis cretion and that his order was not perverse. The reason that the Committing Magistrate had summoned some court‑witnesses and that the case might take a different turn, if those witnesses were examined was quite extraneous to the matter before him and was merely conjectural and based on no judicial consideration whatsoever.

9. The fact that the learned Magistrate had purported to exercise his discretion in granting bail to Master Khaki Zaman did not oust the jurisdiction of the learned ‑Sessions Judge to examine the validity of the impugned order. To concede that wherever a Court passes an order purporting to act in exercise of its discretion, the Superior Courts will be debarred from quashing the same would be laying down a doctrine extremely detrimental to the proper course of administration of justice Discretion must be guided by law. It must be governed by established rules and not by the whim and fancy of an individual.

10. The real question to be considered in this case was whether discretion had been exercised in a reasonable and judicial manner taking into account the limitation placed on the Court by section 497 of the Criminal Procedure Code, with regard to grant of bail to persons accused of offences punishable with death or transportation. Here is a case, where the High Court, after examining the same evidence, had refused to grant bail to Master Khaki Zaman only a week before the impugned order had been passed. The learned Sessions Judge also failed to notice that the Magistrate, while passing the impugned order ha:: completely ignored the fact that of all the accused persons Master Khaki Zaman was said to have been armed with a gun, and the deceased had mentioned in his dying declaration that he had received the injuries also from the butt of the gun. The evidence recorded on 29‑12‑1966 had brought out no circum stances justifying leniency. On the other hand, it had given further support to the prosecution story in so far as it related to the participation of Master Khaki Zaman. The evidence brought out on record against Master Khaki Zaman remains un-rebutted. As observed by me in my order, dated the 2?nd of December 1966, in Criminal Miscellaneous No. 3852 of 1966, its value will be assessed by the proper Court at the trial, but for the purposes of the matter of bail, there will be nothing, wrong in assuming that there are reasonable grounds to believe that he is guilty of the offences with which he has been charged.

11. The requirement of section 497 of the Criminal Procedure Code is that a person accused of an offence punishable with death or transportation for life cannot be allowed bail, if there are reasonable grounds for believing that he has been guilty of such an offence, unless his case is covered by proiso to subsection (1) of section

497. It is not contended that tire case of Master Khaki Zaman is covered by the said proviso. What are reasonable grounds was described by the Supreme Court in the case of Khalid Saigol v. State (P L D 1962 S C 495). It was observed at page 499 as follows:‑ "It will be observed that even under section 497 (1) in the case of an offence punishable with death or transportation for life, the mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto, there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. Subsection (1) of section 497 evidently applies to a stage, where the accused is first brought before the Court or his arrest is brought to the notice of the Court and, as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has, nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, 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 before it can come to the conclusion that its discretion no longer exists."

12. Ch. Nazir Ahmad Khan, the learned counsel for the respondents urged that Muhammad Ashraf, the last witness examined on the 29th of December 1966, was actually a witness of identification of the dead body and all that he said about the deceased making a statement before him, involving Master Khaki Zaman, as one of his assailants was an embellishment. I cannot pronounce upon the value of this evidence at this stage, but even if we exclude this evidence from consideration, the dying declaration of the deceased, and the oral testimony of the eye‑witnesses were already on the record.

13. The learned Sessions Judge in considering the legality of the order of the Magistrate did not care to consider the effect of the order of the High Court on the proceedings before him. The learned Magistrate also put a convenient interpretation on this order by saying that I "had left it to him to grant bail to Master Khaki Zaman". This is to say the least not wholly correct. I had discussed the evidence against Master Khaki Zaman, in my order, dated the 22nd of December 1966, and had held that he was not entitled to bail. All that I had further said was that the Committing Magistrate may consider the matter of bail after recording the entire prosecution evidence, which order would ordinarily mean that if further evidence disclosed anything favour able to Master Khaki Zaman, the Magistrate will not be debarred from considering the question of bail. If on the evidence, as it stood on the 22nd of December 1966, he could be granted bail, I would have certainly done so.

14. It is a matter of great regret that the learned Sessions Judge completely blinked over the order of the High Court, while the learned Magistrate, by putting an unwarranted and fanciful interpretation on it, passed an order which virtually amounted to a review of the order of the High Court.

15. As far as Gul Aksar is concerned, he had a direct motive against the deceased. It has been stated in the dying declaration as well as in the statements of the eye‑witnesses that Gul Aksar had fired a pistol shot at the deceased, who ducked and saved himself. He is said to have led the attack and he had a motive to do so, because the deceased was responsible for a police raid on the premises of this accused as a result of which he and his father were prosecuted. The learned Sessions Judge allowed bail to this accused on the ground that he did not repeat the use of pistol, and did not participate in the offence thereafter except the raising of lalkara. He, therefore, held that the case was covered by subsection (2) of section 497 of the Criminal Procedure Code, and since in his opinion further enquiry was necessary with regard to the complicity of this accused, he allowed him the bail. I may again say, with regret, that the learned Sessions Judge has taken an erroneous view of law even in the case of Gul Aksar. He was named in the lying declaration. The part played by him has been described by the eye‑witnesses and he had a motive to attack the deceased. Subsection (2) of section 497 of the Criminal Procedure Code applies to a case, where the proceedings before the Court have not started, but the prosecution claims that they will be able to produce some tangible evidence against the accused, later on.

16. The entire prosecution evidence has been recorded and a case has been made out against this accused, which if un- rebutted, would entail his conviction. It would, therefore, be wrong to say that there are no reasonable grounds for believing that he has been guilty of the offences, with which he has been charged.

17. As a result of the above discussion, I cancel the bail granted to Master Khaki Zaman by Mr. Hamid Ahmed, Magis trate 1st Class, District Rawalpindi, by his order, dated the 29th of December 1966, and the bail granted to Gul Aksar by Mr. Muhammad Hassan Sindhar, Sessions Judge, by his order, dated the 22nd of February 1967. Both the respondents will surrender to their bail bonds and will be kept in the judicial lock up till further orders are passed with regard to them by a Court of competent jurisdiction. K. B. A. Bail cancelled.