P L D 1969 Azad J & K 56 (PLP)

Mr. M. Y. Saraf, learned counsel for the petitioners argued that the complaint by Fazal Ahmed against the petitioners was made nearly 13 weeks after the occurrence. The delay in making the complaint in itself was sufficient to show that such a step has been taken after lengthy consultations between the com plainant and his party. If action is taken on this complaint not only innocent persons would be dragged into the Court but the Police challan would also suffer. He has urged that if Baqa Muhammad, Muhammad Nawaz and Khaliq petitioner who have been cited as witnesses for the prosecution in the challan case are proceeded against as accused in the complaint case on the order of the trial Court they would naturally loose confidence in the administration of justice and might not depose in support of the prosecution. The order of the Sessions Judge was also assailed on the ground that the witnesses examined in support of the complaint i.e. Muhammad Sodagar, Fazal Ahmed, Muhammad Fazil, Muhammad Fazal and Sardar Khan are all chance witnesses and none of them could identify all the alleged assailants on the spot. These witnesses could not say who killed whom and as such too no prima facie case as alleged had been made out against the petitioners for which process could be issued to them in the ‑ complaint case. In the alternative he has argued that the best course open to the Sessions Judge was to stay the proceedings in the complaint case and proceed with the police challan. If after recording of the evidence in the police challan and on its consideration it transpired that some other persons besides Akbar and Qurban were also involved he could issue process to them in accordance with law or order the police to put up a challan against them. According to him it appears from the order of the learned Sessions Judge dated 20‑1‑69 passed on the police challan file that he intends to consolidate both the cases and hold a joint trial of all the 8 accused. There is no such procedure contained in the Criminal Procedure Code which allows such a joint trial of persons accused of offences in two different cases. As to the bail application he has argued that section 498, Cr. P. C. is not subsidiary and ancillary to sections 496 and 497, Cr. P. C. According to him there are circumstances present in this case such as delay in making the complaint etc. which create a doubt as to the allegations made in the complaint against the petitioners. The Court of the Sessions and the High Court under section 498, Cr. P. C. have wide powers to allow bail even to persons who are accused of offence punishable with death and transportation for life. Both these Courts have unfettered powers to admit any person to bail in any case. In support of his contentions he cited U. Po yone etc. v. Emperor (A I R 1933 Rang. 271), Muhammad 1qbal v. The State (P L D 1963 Lab. 279), Syed Ghulam Ali Shah v. The State (P L D 1963 Kar. 881) and Rasul‑Bux etc. v. The State (P L D 1956 Kar. 381). In reply Mr. M. A. Qasauri has argued that Baqa Muhammad and other petitioners as well as Akbar and Qurban as admitted by Baqa Muhammad in the F. I. R. belong to the same faction and it was their identity of views and common purpose which took them to the house of Ghulam Qadir on the morning of the day of occurrence. Although motive for killing the deceased persons is not yet known it can be safely assumed that the petitioners, Akbar and Qurban were acting in unison and were bound to have the greatest regard for the welfare and safety of one another. When judged in this back ground the F. I. R. lodged by Baqa Muhammad cannot be taken as a statement of facts. No doubt he has alleged that Akbar and Qurban had fired their guns at the deceased yet being concerned about their defence he alleged at the same time that they were fired at first, by the deceased. This rather furnishes a good defence for them and it further shows that they have not committed any offence. It was in fact meant to be smoke screen and a trial of the accused in the police challan on the basis of this report would not result in the conviction of the accused. Similarly the doctor who performed the post‑mortem examination on the dead bodies of the three deceased persons and the police seem to be interested in the safety of Akbar and Qurban and it was because of this interest that the doctor at the instance of the police has noted in the post‑mortem report that as a result of firing between the two parties the deceased got killed. As such there was clearly a conspiracy between the petitioners and the police the purpose of which was to save the real culprits from the consequences of their dastardly act. The preliminary evidence recorded in the complaint consists of the statements of eye‑witnesses who have named all the petitioners as assailants. Fazal Ahmed complainant who is brother of Ali Muhammad deceased tried his best to acquaint the authorities with the actual details of the occurrence on 21/9 and 22‑9‑68 but he did not succeed. After having interned the dead bodies of his brother, uncle and servant on 23rd September he went to Muzafarabad to make an application to the Director of Police in which he named the petitioners as the persons responsible for killing the three deceased. This application was made over to the Assistant Director of Police (Crimes) by the Director of Police for necessary action and the Assistant Director of Police (Crimes) specially deputed Nazir Hussain S. I. for the investigation but even this attempt of the complainant to bring the culprits to book did not succeed because of the manipulation of the local police. He strenuously argued that as two versions of the occurrence had come to light and the version alleged by Fazal Ahmed seems to be more pro bable, it was necessary that the complaint case may be taken up first and decided by the Court of the Sessions. The joint trial of the accused in the police challan and those named in the complaint is not permissible under law and as such proceedings in the police cltallan may be stayed for the time being. In support of his contentions the learned counsel has cited Nur Elahi etc. v. The State etc. (P L D 1966 S C 708) Muhammad Ayub v. Muhammad Yagub etc. (P L D 1966 S C 1003) Muhammad Islam etc. v. The State (P L D 1967 S C 539) Ch. Abdul Malik v. The State (P L D 1968 S C 349). It was further stressed by him that the petitioners have been charged with an offence under section 302 which is punishable with death or transportation for life and as such the application for bail before arrest made by the petitioners under section 498, Cr. P. C. cannot succeed because section

498. Cr. P. C. is ancillary to and controlled by sections 496 and 497, Cr. P. C. It would not be proper to discuss at this stage which of the two versions is based on facts which actually took place at the time of the occurrence. Any expression of opinion as to the correctness or incorrectness of one of the two versions before us would amount to a direction to the learned trial Judge and the consequence would be that he would try to act upon that direction and thus prejudice the trial. As such so far as the facts of the two cases are concerned I do not propose to go deeply into them at this stage. I would merely say that in the circumstances the reasonable and fair course for the trial Court would be to hold trial in both the cases so that the truth could be thrashed out. Both the trials cannot be held at the same time because of the reason that witnesses in one case are the accused in the other. The prudence therefore demands that they should be held at different times. In order to determine the order in which the trials of the two cases are to be held, guidance has to be sought from the decided cases because the Criminal Procedure Code has not clearly provided and procedure in this behalf. In Muhammad Ayub v. Muhammad Yaqub etc. their Lordships of the Supreme Court who were faced with a similar proposition have made very apt observations which I think can help us in this case. It was observed by their Lordships:‑ "That how the two cases should be proceeded with so as to cause no prejudice to either party, is one of the difficulties in the circumstances mentioned and has caused us some concern. The learned Advocate‑General suggested that we might issue directions similar to those embodied by the Lahore High Court in the unreported case cited above. The learned Judges observed therein that it would be desirable, should the trial Judge decide to hear first the case based on the police version, to summon the witnesses supporting the counter version as Court witnesses under section 540‑A of the Code of Criminal Procedure, so that the record contains all the relevant evidence. Similar procedure was directed to be adopted during the trial of the complaint case. After considering alt aspects of the matter, we hold that a fair procedure would be for the learned trial Judge to take up the complaint case first for trial. During that case the learned trial Judge may call the witnesses mentioned in the police challan, if they were not already examined on behalf of the complainant, as Court witnesses under section 540‑A of the Criminal Procedure Code, so that they can be cross‑examined by both the parties. This will enable the Court to have the whole relevant evidence included in one trial and a decision could be arrived at after a proper consideration of the entire material relied on by the parties. The accused persons would in addition obviously have the right to adduce defence evidence if they so choose. If that trial results in a conviction, it will be for the Public Prosecutor to consider whether or not he should withdraw from the prosecution, with the permission of the Court, under section 494 of the Code of Criminal Procedure, in the Police challan case. It would be easy for him to take such a decision after the whole evidence has been thrashed out iii the first trial. If the first case ends in an acquittal, he might still have to consider whether the Police version has not been so seriously damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution. Otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record of the earlier trial, by way of cross‑examination of the relevant witnesses, as permitted by law. This procedure is being suggested to avoid a: difficulty that might otherwise confront the complainant. If the Police Challan is taken up first for trial, the complainant would be under a handicap in so far as he would not be in a position to cross‑examine the witnesses for the prosecution. Another difficulty may arise in respect of conducting the cases on behalf of the complainant in the first trial. Normally, of course, under the law, the Public Prosecutor is to be in charge of the case, even if the trial is based on a private complaint. The Public Prosecutor, however, in the special circumstances of the case, could permit the complainant's counsel to conduct the proceedings on his behalf under his directions. Alternatively and that may meet the situation more adequately, Government in the interest of justice, could notify the complainant's counsel, as a special Public Prosecutor, for the conduct of that case alone. This would ensure full justice to the complainant and he would not be left with any sense of grievance. He is at present challenging the bona fides of the Police investigation. We, therefore, allow the appeal and direct that the trials will now be taken up by the trial Judge in accordance with the observations made above." I have already observed that at this stage I am not going into the objections raised by Mr. M. Y. Saraf in respect of the complaint case and the doubts which according to him the other circumstances appearing in the case have created about it. Fazal Ahmed complainant from the very beginning took the position that the petitioners were responsible for the murder. When he did not succeed impressing the local police official he went to Muzaffarabad and made an application before the Director of Police. Under the directions of the Director of Police special investigating officer was deputed who visited Mirpur in connection with this case but it seems that he too for some unknown reasons could not take up the investigation in hand. The complainant then made the complaint before the Sessions Judge in whose Court the challan had already been put up only against Akbar and Qurban accused out of the 8 accused named by him in the complaint. The complainant examined as many as five witnesses in support of his version. Whether this evidence was sufficient for the trial Judge to hold that prima facie a case under section 302 read with section 148/ 149, A. P. C. had been made out against the 8 accused named in the complaint was the function of the Sessions Judge to decide. It would not be proper for this Court at this stage to go into the correctness of his order or to discuss the evidentiary value of the statements of the witnesses of the complainant. The order of Sessions Judge does not on the face of it appear to be illegal and therefore cannot be interfered with. As such there being no reasonable grounds for quashing the, proceedings against the petitioners as prayed by Mr. M. Y. Saraf, their counsel the revision petition is rejected. The above authority of the Supreme Court has laid down a very useful procedure for holding trial in such cases and res pectfully agreeing with their Lordships of the Supreme Court I would also direct the trial Judge that first the complaint case should be taken up by him and the trial of the eight accused held according to the directions contained in the above Supreme Court case. The accused in the complaint case were allowed interim bail by the order of this Court dated 13‑1‑

69. Since the bail they have not abused the privilege granted to them by interfering with the prosecution evidence or jumping the bail. Most of them are also respect able persons and I, therefore, do not see any reason to refuse confirmation of the order passed by me earlier at Muzaffarabad. I have perused Muhammad Ayub v. Muhammad Yaqub etc. an authority cited by Mr. Qasuri, learned counsel for the complainant. In that case three of the Judges i.e. A. R. Cornelius, S. A. Rahman and Fazle‑Akbar were of the opinion that the policy of law in respect of bail to persons accused of non‑bailable offences is laid down in section 497 and the same policy should be kept in view while considering the question of bail under section 498, Cr. P. C. The learned Judge observed that after all, judicial discretion has to be exercised while granting bail and the power conferred by section 498 of the Code cannot be construed to be purely arbitrary. In their Lordships' opinion section 498 of the Code was ancillary or subsidiary to sections 496 and 497 of the Code. As opposed to it in the same case Yaqoob Ali and Hamoodur Rahman, JJ. were of the opinion that section 498 is in the nature of residuary and supplementary provision giving to the superior criminal Courts, namely, High Court and Sessions Court wider power to grant bail in appropriate cases to persons to whom bail cannot be granted under sections 496 and

497. In their opinion there is no warrant to import into section 498 the ingredients of section

497. According to them, sections 496 and 497 speak of bail and bonds. The first part of section 498 emphasizes that Courts and police officers shall fix their amount with due regard to the circumstances of the case and shall not be excessive and the concluding part empowers the High Court or the Court of Session to reduce the bail required by a police officer or Magistrate. To this extent section 498 may be said to be ancillary to sections 496 and

497. The remaining part of the section which confers on the High Court or Court of Session the power to admit any person to bail in any case and whether there be an appeal on conviction or not is, however, an independent provision and it is not controlled by section 496 or

497. These superior Court in their opinion are competent to grant bail under section 498 in any case whether the punishment for the offence with which the accused is charged is death or transportation for life. To me the interpretation placed on section 498 by Hamoodur Rahman and Yaqoob Ali, JJ. appears to be more reasonable because the plain meaning of the words employed by the Legislature in section 498 cannot be departed from on any rule of construc tion. I fully agree with the observations of the latter two Honourable Judges that the words in any case, do away with the distinction made in section 497 between cases punishable with transportation for life and death and cases involving lesser penalty. Similary the use of the words "any person" confers jurisdiction in respect of persons who may not be under arrest and does not appear in obedience to a process issued by the Court or is not brought before the Court as envisaged in section

497. It is the effect of these words which justify grant of bail before arrest and not the subtle difference between the words "release on bail" and "admit to bail" used in sections 497 and 498 respectively. I would also like to refer here to some of the authorities which support this view. In Rasul Bux etc. v. The State it was held by Waheedud, din Ahmad, J. (now C. J.), West Pakistan High Court that:‑ "The High Court has unfettered discretion under section 498 and is not precluded from taking special circumstances into consideration for granting bail. The rule of general law laid down in section 497, Criminal Procedure Code is not binding on the High Court. The question of granting or refusing bail depends upon the particular circumstances of each case, the mere fact that an offence is punishable with death or life imprisonment i9 not by itself sufficient to refuse bail under section 498 of the Criminal Procedure Code. The policy of law is to grant bail rather than refuse it in the case of under‑trial prisoners and the Courts should be lenient until they are convicted." In that case bail was ordered for three of the accused being tried in the Session Court on a charge of murder. It was directed, however, that the order would not preclude the Sessions Judge from cancelling the bail later on sufficient grounds. In Muhammad Iqbal v. The State Manzoor Qadir, C. J. dealing with the question of grant and refusal of bails observed :‑ " A person who has not been found guilty is presumed to be not guilty and, therefore, must be treated as such. This is the first requirement. The process by which the guilt of a person is to be found, and in case that guilt is established he is to be brought to punishment, must not be allowed to be defeated. This is the second requirement. Persons who are desperate and feel they have nothing further to lose by committing more offences should not be allowed to be in a position to do so. This is the third requirement. From the first it follows that an accused person should not be deprived of his liberty during his trial; from the second, that it must be ensured that he faces his trial and does not defeat the inquiry into the allegations against him, by running away or committing suicide, or by destroying or suppressing the evidence against him; from the third, that he must not be let loose on society if he is so placed as to think that he might just as well hang for a sheep as for a lamb." In Syed Ghulam All Shah v. The State Feroze Nana Ghulamally, J. dealing with an application for bail before arrest made by persons accused of an offence under section 302 and allowing the same observed:‑ "Conceding, therefore, that this Court has unfettered powers in the matter of granting bail, and bail before arrest, the point for consideration is whether, in the circumstances as urged before me, this Court at the stage at which the in vestigation of the case is alleged to be, should consider the question of granting bail. I wish to make it clearly under stood that whatever reference I have made in this order should not be taken to be an expression or opinion on any aspect of the case, but from all points of view, as have now been urged before me, I would, for the present, confirm the grant of bail initially given to the applicant, although T do feel that normally in such a case, without the other circum stances, such an application should initially have been made to the original Court, namely, the Court of the committal Magistrate. This order is subject to the condition that if during the trial in the committal Court or in the Sessions Court, it is felt that a strong prima facie case has been made out for remanding the applicants to custody; their bail may be cancelled." Acting on the principle laid down in the above authorities and considering the circumstances of this case I confirm the order of the interim bail passed by me on 13‑1‑1969. S. A. H. Petition dismissed.