1968 P Cr (PLP)

MUHAMMAD YAQUB ALI, J: The respondents are charged with offences under sections 302/149 and 307/149, P. P. C. for the murders of Nasir and Latif and murderous assault on Farid, appellant, by use of fire‑arms in broad daylight in a public place. The occurrence was reported by Farid within an hour and a half at a police station several miles away in which the details of the occurrence, the motive on the part of the respondents and the names of the eye‑witnesses were set out. During the course of investigation empty cartridges were also recovered from the scene of crime which matched with the gun recovered from Ghulam Hussain, respondent, at tie tune of his arrest by the police. While the case was pending before the Inquiry Magistrate Mr. Muhammad Sharif, Additional Sessions Judge, Jhang, granted bail to the respondents on the view that though their names were mentioned in the F. I. R. it was not sure that they had actually committed murder and that a prima facie case against them had not been made out. The Additional Sessions judge was also impressed by the fact that the widow and children of another brother of the respondents were their dependents. Dissatisfied with the order granting bail to the respondents tine appellant moved the High Court for setting aside the order of the Additional Sessions Judge on the grounds that the considerations on which bail was granted did not fall within the ambit of sections 497 and 498 of the Code of Criminal Procedure and that the observation that prima facie case was not made cut against the respondents was calculated to prejudice the prosecution case. The application was heard by a learned Judge who by order dated the 5th June 1967 cancelled the bail granted to the respondents and pointed out that the Additional Sessions .fudge had not taken into consideration the facts of the case and had not applied his mind while making the observation that prima facie no case was made out against the respondents. Within a week the respondents moved another application in the High Court under sections 497 and 498 of the Code of Criminal Pro cedure for grant of bail which came up in motion before another learned Judge and was admitted to hearing on 14‑6‑1967. The learned Judge further directed the Investigating Officer to appear in, Court at the time of hearing and produce the police file. This was followed by another application on which the same learned' Judge on 16‑6‑1967 passed the following order: "The application of the petitioners was admitted to hearing by my order dated the 14th of June 1967. The petitioners have put in the affidavits of Ahmad Khan, Syed Amir Muhammad Shah Bukhari, Manzur Elahi, Tufail Hussain and Muhammad Amin to show that on the 14th of January 1967, at 7‑30 a. m., the day of the incident, they were at Lahore, and it was not possible for them to be at Jhang at that time and that it is difficult for them to produce at their own, the official record showing their presence on the said date at Lahore and the same may be sent for. Furthermore, as they have to attend the Court of the Committing Magistrate at Jhang where they would be put under arrest if they are not' allowed bail and this petition would become infructuous.

2. The petitioners are admitted to ad interim bail in the sum of Rs, 15,000 (fifteen thousand) each with one surety each in the like amount to the satisfaction of the A. D. M., Jhang." The hearing of the application was fixed for the 3rd of July 1967, and the Record Keeper of the Civil Secretariat directed to produce records showing the presence of the respondents is the Civil Secretariat on. 14‑1‑1967. A copy of the order was given dasti to the respondents. The aforesaid order of the high Court was brought before this Court in Criminal Petition for Special Leave to Appeal No. 176 of 1967 on the grounds that in granting interim bail to the respondents the learned Judge had in effect reviewed the order of the first Judge dated the 5th June 1967, without even adverting to the facts which had weighed with the‑ latter in cancelling the ball "and that the second Judge was not justified in calling for the records from the Civil Secretariat to examine the plea of alibi which was not taken either before the Additional Sessions Judge or before Mr. Justice Jamil Asghar. Leave was granted to considered the question whether in the facts and circumstances of t1he case Mr. Justice Shaukat Ali in granting bail and in summoning records from the Secretariat for the purposes of examining the plea of alibi had acted on sound and judicial principles. In support of the appeal Chaudhri Nazir Ahmad Khan urged : (i) that since the bail granted to the respondents by the Additional Sessions Judge was cancelled by the first Judge it was appropriate that the second application for grant of bail which in effect was tantamount to asking for review of the order cancelling the bail should have been placed before him; (ii) that it did not fall within the ambit of sections 497 and 498 of the Code of Criminal Procedure to summon records and hold an inquiry into the plea of alibi raised by the respondents while the trial of the case 'Vas still pending in the Courts below; and (iii) that in view of toe material placed on the record by the prosecution it could not be said that reasonable ground did not appear for believing that the respondents had been guilty of the offence of murder. Mr. A. R. Chhngez appearing for the respondents maintained that the plea of alibi raised by the defence was at least in case of Ahmad Khan proved to be correct beyond reasonable doubt inasmuch as at the time of occurrence, namely, 7‑30 a. m. on 14‑1‑1967 he attended office in the Civil Secretariat, Lahore, and was on the same day examined by a Government doctor at 9 a. m. in pursuance to a docket issued by his Section Officer. This circumstance according to the learned counsel made the case against the other respondent also extremely doubtful. The Section Officer of the Branch in the Civil Secretariat in which Ahmad Khan worked at the relevant time has been examined by the prosecution and has denied that he had issued the docket for his medical examination on the 14th January 1967. It could not, therefore, be said at this stage that the plea of alibi raised by the defence in case of one of the respondents was so well established that bail could be granted to both of them on the ground that there did not appear reasonable grounds for believing that they had been quilty of the offence of murder. In Khalid Saigol v. The State (P L D 1962 S C 495) it was pointed out that subsection (1) of section 497 applies to a stage where the accused has brought before the Court or his arrest is brought to the notice of the Court. 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 guilt or innocence though it is necessary to ascertain as to whether there exists any reasonable ground upon which its belief can be founded that he had been guilty pf such an offence. In the case of Muhammad Ayub v. Muhammad Yaqub (P L D 1966 S C 1003) it was further laid down that the policy of the law in respect of bail to persons accused of non‑bailable offences as laid down in section 497 and the same policy should be kept in view while considering question of bail under section 498 of the Code of Criminal Procedure. In a recent case Muhammad Aslam v. The State (P L D 1967 S C 539) it was said that in dealing with an application under sections 497 and 498, Cr.P.C., the High Court is not required to inquire into the merits of the prosecution case or the plea of defence for arriving at the conclusion whether the accused has been guilty of an offence punishable with death or transportation for life. The learned Judge was, therefore, not properly advised in summoning records from the Civil Secretariat to ascertain the truth in the plea of alibi set up by the respondents as it would have been tantamount to pronouncing on the merits of the prosecution case before the trial had opened. It should also have been a matter of some concern to the learned Judge that one of his brother Judges had already dealt with the case and expressed himself strongly against the grant of bail by the Additional Sessions Judge. Not only the long established practice of his Court, but also the rule of propriety required that he should have transferred the application for bail to the first Judge for disposal. Such a course would have had the merit of avoiding the possibility of two contradictory orders being passed in the same case by the High Court. It was urged that the plea of alibi was not considered by the High Court while cancelling the bail granted to the respondents, but the plea was neither urged before the Sessions Judge nor before Mr. Justice Jamil Asghar. It could not, therefore, be said that a new circumstance was trade to appear which justified the passing of a contradictory order. The appeal is, accordingly, allowed and the order of the High Court dated the 16th June 1967, granting interim bail to the respondents is set aside. Appeal accepted.