1984 P Cr (PLP)

(vi) N L R 1980 Cr. C. Lab. 26 (27). (vii) 1980 S C M R 780 (781)A. (viii) 1983 P Cr. L J 1512. He cited these following two rulings in support of his point, that bail is not to be withheld as a punishment (i) P L J 1980 S C (A J K) 165. (ii) P L D 1981 S C (A J & K)

10. I find no Medical Certificate to the effect that the accused is sick, hence I need not discuss the ground of sickness. The points of the learned Advocate-General are:-- (1) That in all cases in which the sentence of death or life imprison ment is awardable, bail is to be refused as a rule; (2) That the accused is mentioned in the F. I. R., he is the only one accused involved in the murder and there was no likelihood of an innocent person being involved in the murder case which took place in broad daylight. Moreover, there are two eye-witnesses; Sardar Ali (now dead) and Mst. Mehtab Nishan, the mother of the deceased. Besides that we have also got the statements of Muhammad Yasin, Abdul Aziz and Muhammad Ashraf prosecu tion witnesses who came on spot soon after the occurrence and saw the accused. The evidence of these three persons was also considered by the trial Court alongwith the statements of the eye-witnesses. (3) That delay, per se, is no ground to admit a person on bail, the learned Advocate-General referred to (i) 1971 S C M R 196 (197) A & B. (ii) 1983 P Cr. L 1276 S C (A J K) (280 & 281) paras. 13, 14 and 15). (4) The learned Advocate-General also submitted that a person who uses a deadly lethal weapon in the commission of murder is not entitled on bail in the light of P L D 1968 Lah. 1000 (1001)A. I have herd the learned counsel for the parties, have gone through the judgment of the learned Additional Sessions Judge, Poonch (Bagh) who has refused bail in this case and also pondered over the arguments of the learned counsel. There is no dispute about the fact that bail cannot be withheld as a punishment but at the same time, the delay, per se, is no ground for bail. Where it is shown that inordinate delay has taken place, the Court may grant bail in a proper and fit case. Much depends on the peculiar fasts of each case and therefore, no hard and fast rules can be laid down. I am not inclined to grant bail in this case when I see that there is only one accused in this case. His name is mentioned in the F. I. R. and it is a case of murder alleged to have been committed in broad daylight. The prosecution has alleged that a deadly weapon (firearm) has been used to kill Mst. Sakina Bibi. But there is one ground which cannot be ignored. The Supreme Court of Azad Jammu and Kashmir had laid down in the case of Muhammad Sadiq v. The State (1983 P Cr. L J 276 (280) C) that where a case has been remanded for a de novo trial for no fault on the part of an accused and the earlier proceedings C were quashed for having been taken without jurisdiction, the accused is entitled to bail. Therefore, I am not going to discuss the other grounds taken in this bail matter except the ruling of the Supreme Court of Azad Jammu and Kashmir referred to above. We are bound under the Constitution, to follow the decisions of Supreme Court under section 42-B of the Azad Jammu and Kashmir Interim Constitution Act of 1974, which reads as follows:-- "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Azad Jammu and Kashmir." The learned Additional Sessions Judge has considered this ruling but failed to apply it in this case on the ground that the learned Additional Sessions Judge has got no inherent powers to grant bail. The learned Additional Sessions Judge has mentioned that in the case of Muhammad Sadiq v. The State, the Supreme Court was pleased to exercise its inherent powers, which are available to the Supreme Court, under the Supreme Court Rules. No such powers are available to him, and therefore he refused bail. The question whether the learned Additional Sessions Judge has got inherent powers or not is a most point and an authoritative judgment will be given when such an occasion arises. Here I decided this case in the light of section 42-B of our Constitution, because all the Courts of Azad Jammu and Kashmir are duty bound to follow the decisions and pronounce ments of the Supreme Court of Azad Jammu and Kashmir. We are duty bound even to follow the obiter dicta of our Supreme Court. The learned Additional Sessions Judge has not considered section 42-B of the Interim Constitution Act of 1974 and therefore he failed in his duty to follow the law laid down by the highest Court of the realm. The learned Additional Sessions Judge should have followed the law even if it appeared bitter to him in taste. The pronouncements of the Supreme Court are worthy of great respect. The learned Additional Sessions Judge should have read this lucid authority and appreciated the rationale of this ruling. I reproduce the following portion of this tell-reasoned judgment written by Raja Muhammad Khurshid Khan the Chief Justice of our Supreme Court. "The powers of the Supreme Court under this section "for doing complete justice in any case or matter pending before it," it appears to us, are wide enough to clothe this Court with the powers to enlarge an appellant suo motu on bail if it finds that circumstances warrant such a course. The consideration of rule 5 of Order XLIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978, reinforces our view that the Supreme Court has got inherent powers to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court. In this case after a careful and exhaustive review of the circumstances, we are satisfied that if at all there is a case fit enough for allowing bail to an appellant it is one of them. The appellant was arrested on 23rd April, 1976. Since his arrest spreading over the period of more than six years he remained either in the judicial lock-up or in jail. He had to face the trial before an incompetent forum. He had in no way contributed towards it and the trial afresh would consume further time creating hardships for the appellant. Our judicial conscience, in these circumstances, advise us not to keep the appellant in jail/judicial lock-up any more and allow him bail pending trial. We, therefore, in exercise of the powers conferred under sec tion 42-A(I) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, read with rule 5 of Order XLIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978, allow bail to the appellant pending decision of the case. The appellant shall be set at liberty on his executing the bond in the amount of Rs. 30,000 and the personal surety in the same amount to the satisfaction of any Magistrate first class functioning in Poonch District." Following the dictum of the Supreme Court in Muhammad Sadiq v. The State, I have got no option but to grant bail in this case. It is, therefore, ordered that the accused shall be released on bail if he furnishes bail bond in the sum of rupees two lacs with four solvent sureties each F with personal bond in the like amount to the satisfaction of any Magistrate 1st Class if he is not wanted in any other case. This is because it is murder case and we have come to know that some accused involved in murder cases when enlarged on bail, have run away to foreign countries. M. Y. H. Bail granted.