1981 P Cr (PLP)

Ghulam Rasool v. Ghulam Mohd. P L D 1971 S C 128 and Muhammad Siddique v. State 1971 P Cr. L J 92 distinguished. Kh. Mohammad Saeed, Advocate for Petitioner. Sardar Rafique Mahmood, Addl. A.-G. for the State. Respondents (accused) 1 to 6 namely Haji Abdul Rehman, Abdul Rashid, Sher Ahmed, Qalandar. Sheikh Ahmed and Mohammad Zaman (in Petition No. 5 of 1980) alongwith petitioner, Haji Sain (in Petition No. 4 of (1980) were sent to District Criminal Court, Muzaffarabad to face trial under sections 302, 147, 148 149, Penal Code read with section 4/5 of Islamic Penal Laws Act. 1974 for the murder of one Munawar Khan. Respondents 1 to 6 were released on bail in the High Court on 23rdJuly, 1980 while the bail was refused to Haji Sain on the same day.

2. The State as well as Haji Sain have moved two petitions for leave to appeal to assail the judgment of the High Court. The State wants cancellation of the bail allowed to respondents 1 to 6 while Haji Sain wants to be released on bail. Both the petitions are being disposed of by this single order.

3. The case of the prosecution in brief is that Munawar Khan deceased, Mohammad Afzal and Sumandar Khan, who came across River Jhelum from Pakistan to Azad Kashmir at a place known as Rara, were attacked by the respondents as well as Haji Sain and Munawar Khan suffered an incised wound over the right side of parietal bone which caused his death. This injury is attributed to Haji Sain. No overt act what soever is given to other respondents in the transaction, which caused murder.

4. Sardar Rafique Mahmood, the learned Additional Advocate- General, to support his petition argued that the respondents alongwith Haji Sain are saddled with constructive criminal liability for the murder of Munawar Khan which was the result of preconcert. To support his argument, he has referred me to Ghulam Rasool v. Ghulam Mohd. (P L D 1971 S C 128), and Muhammad Siddique v. State (1971 P Cr. L J 92). In P L D 1971 S C 128 the bail allowed to some of the accused by the Sessions Judge was cancelled by the High Court but the reading of the judgment does not show the part attributed to those persons. Therefore, this citation is not available to him. The second case 1971 P Cr. L J 92 referred to by the Additional Advocate -General is not at all applicable to the facts of the present case. It is a case in which it was said after the `commitment' proceedings that reasonable grounds exist to connect the accused with the offences charged. The Police challan, I am afraid cannot be equated, as contended by the learned Additional Advocate-General, with the 'commitment' proceedings. Kh. Mohammad Saeed, the learned counsel for Haji Sain, maintained that the murder took place during sudden fight and as such Haji Sain is entitled to be released on bail.

5. The cardinal principle of law of bails is that in cases in which penalty of death or transportation of life is provided, bail will be refused if there appear reasonable grounds for believing that the person or persons concerned have been guilty as such, In the present case the High Court came to the conclusion that as no overt act is attributed to respondents 1 to 6, it cannot be said that reasonable grounds exist to connect the accused with the offences punishable with death or transportation for life and bail was refused to Haji Sain as he was mainly responsible for inflict ing injury which caused death of the deceased.

6. The High Court has exercised the discretion in allowing bail to respondents 1 to 6 and refusing to enlarge Haji Sain on bail.

7. It should be mentioned here, that bail should never be withheld as a punishment even in case of non-bailable offences and discretion should be exercised with due care and caution taking into account the facts and circumstances of the case. Heinousness of offence is not by itself sufficient to take away the discretion of the Court to grant bail.

8. The Supreme Court, it is now settled, does not interfere in matters of bail unless the circumstances are altogether of exceptional character i.e. unless it is not shown that the High Court, in passing the bail order, has clearly misused its powers or the order is perverse on the face of it.

9. Since there is nothing to show that the High Court has exercised its discretion without proper care I do not, therefore, feel advised to grant B leave to appeal. Besides as substantial evidence by now, as admitted by both the counsel, has been recorded by the trial Court, therefore, now the District Criminal Court is in a better position to consider and decide the question of bail. The petitions for leave to appeal, in the circumstances of the case, do not merit consideration, which are, hereby dismissed. Petition dismissed.