1985 P Cr (PLP)

(10) Considerations in granting bail, of course, in offences punishable with death or transportation for life are very much different from the considerations on which bail can be granted in other offences. In the former case it is necessary to look into the evidence to see as to whether a prima facie case exists for believing that a person is guilty of those offences. When the High Court grants or withholds bail in a case involving sentence of death or imprisonment for life, the order should give some intelligible indication that the matter was objectively looked into otherwise this Court is sound to be upheld or not. (11) Subsection (2) of section 497, Cr.P.C. makes it obligatory for the Courts to allow bail to an accused person in all kinds of non‑bailable offences including those punishable with death or transportation for life where no reasonable grounds exist for believing that the accused has committed an offence and a further inquiry is warranted. Of course such an order is interlocutory in nature pending inquiry. (12) It is settled law that an accused is presumed to be innocent till the contrary is proved, therefore, the ultimate conviction and incarceration of a guilty person can redress the wrong caused by a mistake relief of interim bail granted to him but no satis factory reparation can be afforded to an innocent man for his injustific incarceration at any stage of the case if he is acquitted in the long run."

24. In the case of Shabbir Hussain v. The State P L D .1982 S C (A J $ K) 100 the normal rule in murder cases is mentioned by Mr. Justice Raja Muhammad Khurshid Khan, C.J. of our Supreme Court in paras. 8 to 13, which read as follows:‑ (8) "The law is settled that in a case of murder the normal rule is refusal to grant bail and on merits bail can be granted only either in cases where there are no reasonable grounds for believing that the accused was guilty of the charge or the case is such that it requires further enquiry or it is covered by any of the exceptions under section 497, Cr.P.C. Bail in such cases is a matter within the discretion of the trial Court, which is to be exercised with due care and caution in view of the facts and circumstances of each case. In this case bail was refused to the appellant when even the challan was not presented before the trial Court and the High Court had left the matter of bail open to be decided by the Court after recording some of the evidence. Much water since then has flown. The statements of eye‑witnesses have been recorded by the District Criminal Court. In view of the changed circumstances the proper course of the appellant would be to approach the District Criminal Court again for bail on the ground that from the evidence recorded reasonable grounds are not established to connect the appellant with the offence charged. (9) So far merits are concerned the Court would not evaluate the evidence which was neither in existence before the subordinate Court nor it was considered thereat. We, therefore, refrain to express ourselves about the merits of the evidence recorded by the trial Court after the refusal of the bail because any opinion expressed on the evidence though tentative may influence the mind of the trial Court. If we release the accused on bail it may create an impression that eye‑witnesses hitherto recorded do not, prima facie, make out a case of murder. Likewise, if we refuse bail the trial Court may be persuaded to entertain the belief that the evidence hitherto recorded is short to establish a case of murder against the appellant. (10) It has, therefore, been a matter of concern to the superior judiciary generally to avoid any expression of opinion on the merits of case lest it may influence the trial Judge. The trial Court would be placed in an extremely embarrassing position in such circumstances for although it may not legally be bound by the views of the superior Court yet it will feel hesitant to go against it and will, therefore, be hampered in discharging its own function. In this view of the matter we do not think that, in the stage in which the proceedings are in the present case, we would be justified in reviewing the evidence. The District Criminal Court must be allowed to discharge its own responsibili ties uninfluenced by the views of the superior Courts. (11) We are fortified in our view in Allah Bakhsh v. The State 1969 P Cr. L J 185; Jan Muhammad v. The State 1971 S C M R 315; Qamar Din v. The State 1975 P Cr. L J 133 and Muhammad Yaqub v. Iltafur Rehman and another P L D 1974 S C

83. The first mentioned case decides the controversy to the effect that at the stage of bail the Court should not be drawn into a controversy about the merits of the prosecution case to determine the guilt or innocence of the petitioner. In that case the learned counsel for the petitioner tried to comment on the evidence and circumstances of the prosecution case to prove the petitioner's innocence in order to earn a bail in a murder case but argument was repelled on the ground that comment on the evidence is not permissible in considering a bail matter. In second case the Supreme Court (Pakistan) in a bail matter refrained to express itself about the credibility of the prosecution witnesses and observed that such disputed question of fact cannot be decided in the bail application. In the third case during the pendency of the application before the High Court some of the evidence of the prosecution witnesses was recorded. In this view of the matter the learned Judge declined to express himself about the credibility of the witnesses on the ground that it is not proper to discuss the prosecution witnesses and express any opinion on the merits. In the last case Anwarul Haq, Judge (as he then was) declined to assess the weight of the evidence in bail matter as it was likely to pre‑empt the duties and functions of the trial Court; and to prejudice the prosecution or the defence. (12) Whether the witnesses should be believed or not will be, therefore, for the trial Court to decide. Such disputed questions of fact cannot be decided in the bail application and the Court at this stage is only concerned to determine as to whether upon the material placed before the High Court there were reasonable grounds for believing that the appellant is guilty of having committed such a non‑bailable offence; punishable with death ‑or transportation for life. (13) No doubt it is important for the Court to form an opinion in releasing an accused on 'bail about the evidence but that would be permissible only when that evidence was considered by the subordinate Courts in deciding the controversial issue of bail. It is not done in this case; rather it could not be done as no evidence by that time was recorded by the trial Court." 2S. In the case of Muhammad Bashir v. The State P L D 1983 (SC) A J K 8 another principle enunciated on the basis of P L D 1972 SC 81 which was laid down is that the bail cannot be withheld as a punishment. I have also followed the same view in the case of Azmat Ullah v. The State P L D 1984 Azad J K.

26. The principles of bail are also mentioned in the case of Dilbahar Awan v. The State 1983 P Cr. L J 1027 by Sardar Said Muhammad Khan, J (now Judge of our Supreme Court) in the following words:‑ "I am of the view that grant or refusal of bail in a criminal case depends upon the particular circumstances of each case and it is not possible to lay hard and fa~; rules as to when a person, accused of an offence, punishable with death or trans portation for life, should be released on bail. The only criterion is whether in view of tentative assessment of the evidence and overall circumstances of a case, there are reasonable grounds to believe that accused is guilty of an offence, punishable with death or transportation for life. The existence or absence of "reasonable grounds" should be judged in light of peculiar circumstances of each case."

27. Now I would like to discuss some authorities cited by Raja Muhammad Aslam Khan the learned counsel for the petitioners.

28. In the case of Mubarak Ali v. The State 1979 P Cr. L J 45 the petitioners had caused no injury to the deceased. Prima facie the peti tioners were held not appearing to have committed an offence punishable with death or life imprisonment. Bail was allowed in cricumstances. This case does not apply to the facts of the present case where there is a prima facie case of murder against the three petitioners and Muhammad Farooq.

29. In the case of Munshi v. The State 1979 P Cr. L J 71, the prosecution story appeared as doubtful and necessitated further enquiry. The possibility of self‑defence could not be ruled out of consideration. This case does not apply to the facts in the instant case at all.

30. In the case of Mushtaq Ahmad v. The State, 1981 P Cr. L J 48S. Both the petitioner and a co‑accused were ascribed specific part of holding deceased by arms thereby enabling the principal offender in striking the deceased with a Toka. The co‑accused had been enlarged on bail by invoking the principle of vicarious liability, therefore, the petitioner was also allowed bail in circumstances. In that case Munawar Hussain was below 16 and his age was treated as a subsidiary ground for the order for release of the accused on bail. The case of the petitioner was found alike with that of Munawar Hussain and, therefore, bail was allowed to him.

31. In the case of Jamshaid v. The State 1981 P Cr. L J 1102. Mr. Justice Muhammad Afzal Lone, J allowed bail to the petitioners to whom only a "Jappha" was attributed. In that case there was some altercation between Babar co‑accused and the deceased. The petitioners grappled with the deceased and Babar co‑accused inflicted blows with a dagger on the chest, back and thighs of the deceased. The petitioners were not armed and the only role attributed to them was a "Jappha". It was a case of further enquiry and, therefore, bail was allowed to them.

32. In the case of Muhammad Anwar v. The State 1981 S C M R

850. Only "Jappha" was attributed to the petitioner Muhammad Anwar while the fatal blow was attributed to another co‑accused. Two other co‑accused were allowed bail and the petitioners' case was indistinguish able from their cases. The petitioner remained in the jail for more than 3 years and there was no likelihood of the trial commencing in the near future. The petitioner was released on bail under special circumstances of that case. This case does not apply to the instant case.

33. In the case of Zafar v. The State 1984 P Cr. L J 1647. The bail was granted to the petitioner who was admittedly empty handed and he did not cause any injury to the deceased. Learned Justice Muhammad Munir Khan, J. granted bail because it was a case of further enquiry. In that case the petitioner and 2 others in furtherance of their intention had caused the death of Muhammad Afzal. The petitioner was accompanied by his co‑accused Shahid and Muhammad Amin, he gave a signal to the deceased to stop his motor cycle, he abused and caught hold of the deceased so that Shahid should be able to kill the deceased with a pistol fire.

34. In the case of Ismail v. The State 1983 P Cr. L J 1426, Mr. Justice Z.C. Valiant, J. granted bail where the case against the accused regarding applicability of provisions of section 34,Pena1 Code required further enquiry. The fatal injury was not attributed to any individual including the accused in F.I.R. The learned Advocate for the petitioner had relied upon the cases reported in 1984 P Cr. L J 436; 1983 P Cr. L J 17 and 1982 P Cr. L J

383. The learned Judge observed at page 1427:‑ "It is clear from the version as given in the F.I.R. that there was a chance meeting between the deceased and the applicant and the other co‑accused person, when the incident is alleged to have taken place and as such the question of applicability of the provisions of section 34, Penal Code would require further enquiry at the stage of trial, as the fatal injury is not attributed to any individual person including applicant, in the F.I.R. 3S. In the case of Sher Muhammad v. State 1983 P Cr. L J 2019, the petitioner had allegedly caught hold of the deceased at the time of occurrence but himself had caused no injury to him. The question of the petitioner's vicarious liability required further enquiry and, there fore, bail was allowed to Allah Yar and the application of Sher Muhammad and Bahadur was rejected. In that case Allah Yar deceased was found in a compromising position with Mst. Karam Elahi and it appeared as a case of grave and sudden provocation. Hence it is also distinguishable.

36. Now I propose to discuss the authorities cited by the learned Additional Advocate‑General, Mr. Muhammad Nisar Mirza and Choudhry Alleemud Din Advocate:‑

37. In the case of Muhammad Naseer v. The State 1977 P Cr. L J 129 bail was declined. The petitioner had caught hold of the deceased from his neck and facilitated the commission of offence by his co‑accused who gave a spear blow in the abdomen of the deceased. It was contended on behalf of the petitioner that he was empty handed and that no injury was attributed to him. The learned Saleem Mazhar, J. dismissed his petition.

38. In the case of Ghulam Muhammad v. The State 1978 P Cr. L J

8. Mr. Justice Gulbaz Khan, J. declined bail in a case where the petitioner had held the deceased while another co‑accused had given a fatal blow to the deceased. Provision of section 34, Penal Code was found fully attracted and the offence was held to fall under the prohibi tory clause of section 497(1), Cr.P.C. It is obqerved at page 9: "The name of the petitioner is mentioned in the F.I.R. which was lodged with promptitude . . . . . The petitioner took active part and facilitated the commission of murder .... In view of the part played by the petitioner, there are reasonable grounds to believe that he is prima facie guilty of offence punishable with death or life imprisonment. The case falls under the prohibitory clause of section 497, Cr.P.C. It is not fit case for grant of bail. The bail petition is dismissed."

39. In the case of Muhammad Ramzan and others v. The State 1978 P Cr. L J

863. One of the two petitioners took a victim in his grip, enabling the other to chop off his nose resulting in permanent disfigurement of his face for all times to come. The petitioners were named in the F.I.R. and the role attributed to them was also mentioned in it. The bail was declined by Mr. Justice Muhammad Ilyas, J. of the High Court. I would like to produce para. 5 from pages 863‑864‑A:‑ "Both the petitioners are named in the F.I.R. and the roles attributed to them also find mention, therein. It is alleged that Ahmad Bakhsh petitioner held the victim in the grip (Chatta) to enable Muhammad Ramzan petitioner to remove his nose. Thus, the alleged contribution of Ahmad Bakhsh petitioner is not an insignificant one. Moreover, they are alleged to have committed the offence with a common intention. As stated in the F.I.R. the occurrence was witnessed by Munir Ahmad, Abdul Karim and Qazi Saeed. The offence alleged to have been committed by the petitioners has disfigured the complainant for all the times to come and it is punishable with imprisonment for life. In the case against them the evidence is yet to be recorded. 1 am, therefore, not inclined to admit them to bail at this stage. The petition is dismissed."

40. In the case of Mst. Barkat Bibi v. Gulzar and another 1979 SCMR 65 D. B., the respondent accused colluded with his co‑accused and playing active role in transaction by catching hold of deceased and allowing principal accused to inflict fatal blow to the accused. Provisions of section 34, were held, prima facie, attracted and the respondent accused was not found entitled to bail. His bail was cancelled. In this case of Lyallpur, the bail granted in favour of Gulzar was cancelled. In that case, Kala had stabbed Mst. Perveen Akhtar with a dagger and Gulzar had facilitated the murder by catching hold of Mst. Perveen Akhtar.

41. In the case of Muhammad Arif v. The State 1981 S C M R 820 (822) A. The allegation against the petitioner (Muhammad Arif) was that he had held the deceased in a 'Japha' and his co‑accused Ibrahim alias Kala and Munir thus facilitated, gave dagger blows to the deceased. The learned Waheedud Din Ahmad, J. held that the petitoner's bail was justifiably cancelled by the High Court. It was observed at page 821:‑ "Mr. R.A. Awan the learned counsel for the petitioner has contended that the petitioner was empty‑handed, that now‑a‑days allegations of 'Japha' are made against the accused persons to entangle them in false cases, and therefore, it was fit case in which bail should be granted to the petitioner. The learned counsel relied on 1974 S C M R 376 in which this Court gave benefit of doubt to a person against whom the allegation of holding the deceased by 'Japha' was made. He further relied on 1976 P Cr. L J

758. The learned counsel further contended that Muhammad Ibrahim alias Kala has been discharged, and there is no reason why the petitioner, against whom there is only allegation of holding the deceased by 'Japha , should not be released oil bail. After hearing the learned counsel for the petitioner, we are satisfied that the learned Single Judge of the Lahore High Court has exercised his discretion properly."

42. In the case of Muhammad Rafique v. The State, 1983 P Cr. L 1965, the petitioner caught hold of the deceased from arms while accused struck him with a brick on temporal region. Bail was declined by Mr. Justice Muhammad Rafiq Tarar, J. of Lahore High Court. I would like to reproduce, para. 3 of that judgment from page 1966:‑ "I have gone through the relevant material. Both the accused persons are shown to have a motive against the deceased as he used to dissuade them from taking Charas near his house resulting in a quarrel one and a half months prior to the occurrence during which they threatened him with dire consequences. The complainant's version that both the accused raised Lalkara, grappled with the deceased and the petitioner caught hold of him from the arms before his co‑accused struck him with the brick, is supported by two eye‑witnesses. There was only one injury on the dead body in the nature of a contused swelling 6 c. m. x 4 c.m. on the left temporal region, extending downwards in front of left ear. There is substance in the contention of the learned counsel for the complainant that if the arms of the deceased had been free he must have endeavoured to ward off the blow and was likely to suffer injury on the hands during the process. The allegations prima facie show that both the accused acted in a pre‑concert. In the circumstances, I do not consider it a fit case for bail. The petition is dismissed." (Under lining is mine).

43. Let me now point out that "life for life". (lex tolionis) has been the rule of Divine law right from Moses as it is found in the Ventatouch (Torat) and Injeel. This law has been retained by Islam. I would, therefore, first quote the Bible, then Quran and after that, a well‑known Hadith.

44. Let me in the very beginning say that murder is a very heinous crime. 21:12 of Exodus (old Testament) reads:‑ "He that smiteth a man So that he die, shall be surely put to death." The punishment of Qisas, (Lex telionis, (life for life), appears in pentatouch i.e. even in Torat (Old Testament, Exodus: 21: 23, 24, 25 and

30. Here I would like to reproduce only Exodus 21: 24 which reads:‑. "Thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe." This passage is from the "Book of Covenant." Even Diyat is mentioned in Exodus 21:30 Then again the punishment for murder is found in Leviticus 24: 17‑22 which reads: And he that killeth any man, shall surely be put to death" Deuteronony 19:21: reads:‑ "And thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot." 4S. The first 5 books of Old Testament are known as Pentatouch and we call them Torat. Hazrat Musa (Moses) was the Prophet with a Shariat. The Holy Prophet Jesus did not bring a new law. He simply followed the law of Moses and modified its rigour with mercy. If a person slaps a man in his cheek, the victim was asked not to retaliate at all but forgive and produce the other cheek. The last Holy Prophet Hazrat Muhammad (May the peace of Allah be upon him) followed the middle course. He retained the Lex telionis (Qisas) but allowed the heirs of the murdered person to forgive the murderer if they so choose. So the Muslim Law is the best of all as it is according to the Last Words of God contained in the Holy Quran.

46. In the Holy Quran, we find Qisas mentioned in: (A1‑Baqarah) 2: 178, 179 (A1‑Maida) 5: 45 (A1‑Anam) 6: 152 (Bani-Israel) 17: 33

47. The word Qisas has been used in the Holy Quran for the Law of Retaliation (Lex Telionis) and Qisas is of two kinda:‑ (1) Qisas Bin‑Nafas (2) Qisas in cases either than murder which is based on

48. In the Muslim Law, the law of bail can be read in Books of Fiqah in the Chapter known as

49. The concept of bail is derived from the Surae Yusuf of the Holy Quran (12:69) and Maulana Muhammad Shafi has remarked at page 94 of Musraf‑ul‑Quran Vol. 5:

50. Almighty Allah has said in the Holy Quran "A person who commits a wilful murder of another person shall be sent to the Hell.

51. According to a well‑known Hadith (tradition) quoted in Salkoh Bokhari, the following sins are known as major sins;‑ (i) Shirk; (ii) The violation of the rights of parents; (iii) Wilful murder; and (iv) Yameen‑e‑Ghmus. Here the accused is charged with wilful murder`(,J'J'') which is punishable with B or chopping of the head with sword.

52. In the Kitabul Ikhtiar (Urdu translation) section 540 at page 194 reads:‑ If a party murdered a person, all the members of that party who participated in the offence of murder, are liable to be punished by way of Qisas" (Alkafi).

53. Coming back to the instant case, I decline bail to the petitioners on the following grounds:‑ (i) they are mentioned in the F.I.R. Even their particular role has been mentioned in the F.I.R.; (ii) the F.I.R. was lodged with promptitude on the same day when the alleged murder took place; (iii) there are four eye‑witnesses in this case which, prima facie, implicate all the four accused persons with the murder of Shaukat Ali in very clear terms; (iv) the version of the informant and other three eye‑witnesses apparently seems corroborated by motive, post‑mortem report etc. ; (v) there are, prima facie, reasonable grounds to believe that all the four accused persons are responsible for the murder of Shaukat Ali which offence is punishable with death or life imprisonment. (vi) in the cases of murder the refusal is the general law and grant of bail is an exception. No case has been made out for even "further enquiry"; (vii) the discretion has been rightly and properly exercised by the learned members of the District Court of Criminal Jurisdiction, Kotli and no case of arbitrary or capricious or illegal exercise of this discretion has been made out by thp petitioners; (viii) the superior Courts saldom interfere with the discretion exercised by the trial Court; Ox) prima facie, it appears to be a case of broad daylight murder due to vendetta and there appears no doubt about the identifi cation of the accused persons who are known to the informant and other three eye‑witnesses by name and face; (x) the prosecution story as given in the F.I.R. and as told by the four eye‑witnesses, prima facie, does not appear to be unnatural or improbable as contended by Raja Muhammad Aslam Khan, Advocate. However, the trial Court is free to assess, weigh and appreciate the evidence when it is recorded. This is not the stage where such questions touching the merits of the case should be raised and (xi) it appears to be a case of common intention and action under section 34, P.C.

54. I called the accused persona from the judicial lock‑up and have seen them. None of them is a minor. The learned counsel for the petitioners did not rightly raise the point of age for the grant of bail. However, in the interests of justice, I have satisfied my judicial conscience. 5S. The learned counsel for the parties have done much labour and I am thankful to them for the assistance which they have rendered to the Court. The result of the aforesaid discussion is that this Revision Petition is dismissed being devoid of any force. There are only 14 prosecution witnesses in this case and the learned members of the District Court of Criminal Jurisdiction, Kotli can easily dispose of this case within three months from today. M.A.K. Petition dismissed.