P L D 1977 Lahore 1441 (PLP)

Learned counsel then referred to the evidence connecting the respondent with the crime. He started with motive, which was that Major Zia was interested in another woman. He, therefore, wanted to got rid of his own wife. The other material evidence was that the very story that there was some defect in the car turned out to be false, because the mechanic sent for by the police neither found any leakage of brake oil nor any other defect. Similarly, the police found eight golden bangles lying in the car, which ruled opt the possibility of robbery with intent to Murder or vice versa ; the police found footprints of Major Zia near the place of occurrence, the clothes taken from his person were found to be stained with human blood ; and the recovery of pistol at his instance after his arrest. In addition to this, there was evidence of Forensic Expert who opined that the bullet recovered from the back seat had been fired from the pistol recovered at the instance of the respondent, however, he could not give any opinion about the bullet which was extracted from the head of the deceased, because it had been deformed. According to the respondent only one shot was fired but the post mortem revealed that the deceased had three injuries caused by firearm. Last of all, learned counsel submitted that there wag evidence of last seen together.

5. Learned counsel then criticised the impugned order on the ground of its being perverse. According to the learned counsel, the Additional Sessions Judge did not give cogent reasons for granting bail to the respondent which showed lack of application of judicial mind. It was submitted that in the instant case, there were reasonable grounds to connect the respondent with the murder of his wife and, therefore, bail should have been refused by the learned Additional Sessions Judge. In support of this learned counsel relied on Abdul Majid v. State PLD1968SC349 and Nisar Ahmad v. State PLD1971SC174 with special reference to the following observation in the latter case :‑ " . . . . in order to ascertain whether reasonable grounds exist or do not exist, the Courts do not have to probe into the merits of the case. They have only to look at the material placed before them by the prosecution, to see whether some tangible evidence is available against the accused, which, if left, unrebutted may lead to the inference of guilt." Reliance was also placed on the following observations made by Chief Justice Hamoodur Rahman in case of Muhammad Shafiq v. Muhammad Hanif 1970 S C M R 143. "It is now well‑settled that in determining this question, namely as to whether reasonable grounds appear for believing that an accused person is guilty or not for the purposes of bail, the Court has not to examine the merits of the prosecution case or the plea of the defence or to make an appraisal of the material on the record but. as pointed out in the case of. Khalid Saigol v. The State P L D 1962 S C 495 merely 'to look at the material placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt'." Learned counsel then submitted that certain observations made by the Additional Sessions Judge amount to expressing opinion on the merits of the case. Be submitted that for the purposes of bail, this is not permissible. In support of this reliance was placed on Muhammad Akram v. State PLD 1967SC

539. Last of all, learned counsel relied on the latest pronouncement of the Supreme Court in Barkhurdar v. Kefayat Ali 1977 S C M R 30 and contended that there was sufficient material on the record to connect the respondent with the crime. Therefore, this was a fit case where the concession of bail should be withdrawn from him.

6. Although, State never applied for cancellation of bail of the respon dent, yet the learned counsel for the State supported the petitioner and submitted that it is a fit case where the bail be cancelled.

7. Dr. Khalid Ranjha, learned counsel for the respondent vehemently opposed this petition and took up number of points in support of the order of the Additional Sessions Judge. Before examining his submissions in detail, I think it necessary to reproduce verbatim paragraph 6 of the impugned order, because it contains reasons for admitting the respondent to ball :‑ "The Police Officer present before me could not show me anything from the police zimnis as to what were the reasonable grounds to suspect the petitioner after six days, because although the statement of the father of the deceased regarding motive was recorded on 31‑12‑1976 and if at all there were found no foot‑prints of the assailants near the car, a9 stated by the petitioner, there should have been reasonable grounds on proper material before the police to suspect him as responsible for the occurrence. Reasonable grounds must be higher than suspicion though certainly less than proof. I have seen the medical evidence in respect of the third bullet which was the only bullet recovered from the dead body. It says : 'No opinion can be given . . . . ."

8. The first point urged by the learned counsel for the respondent was that this petition at this stage was not maintainable. The petitioner should have in the first instance moved the Court which admitted the respondent to bail. Although it was conceded by the learned counsel that this Court was competent to adjudicate upon this petition, nevertheless according to the learned counsel the proper course open to tho petitioner was to have gone to the Court of the Additional Sessions Judge. Reliance in support of the above contention was placed on Nazir v. Amir Din 1971SCMR

637. In view of the fact that I have declined to consider the additional grounds I do not agree with the learned counsel that the petitioner should have first~ moved the Additional Sessions Judge. It was next contended that the question of grant of bail is a matter of judicial discretion and once the bail in allowed it is in very exceptional circumstances that this concession is withdrawn. Learned counsel submitted that an order of bail is recalled if it is contrary to the well‑recognised principles governing the grant and cancellation of bail. Learned counsel further submitted that the impugned order shows proper application of judicial mind, because contentions of both the parties had been incorporated in the said order in detail. Relying on the case reported as Amir v. State PLD 1972 S C 277, it was submitted that the law is not to be stretched in favour of the prosecution and bail is not to be withheld as a matter of punishment. It was next contended that as it is a case of circumstantial evidence. This fact alone called for further enquiry Into the guilt of the respondent as envisaged by subsection (2) of section 497, Cr. P. C. Reliance in this connec tion was placed on Muhammad Ashraf v. State 1975 P Cr. L J 1330.

9. Before analysing reasons given in the para. reproduced above, I may mention certain factual mistakes therein. For instance, the statement of the father of the deceased was recorded on 5‑1‑1977 and not on 31‑12‑1976. Similarly in line 3 of para. 6 instead of 'after six days' it should have been 'after four days'.

10. The first reason given by the learned Additional Sessions Judge was that "the Police Officer present before me could not show me anything from the police zimnis as to what were the reasonable grounds to suspect the petitioner after six days . . . . ." I would deal with the remaining portion of the sentence later or, but here I may observe that the presiding officer was not to be led by ‑the colic Officer, but it is the duty and function of the Court itself to trice into consideration the entire evidence on which the prosecution is relying and then to form its own opinion as to whether reasonable grounds exist a envisaged by subsection (2) of section 497, Cr. P. C. Therefore. in my .view, the approach of the learned Additional Sessions Judge to examine the, question of reasonable grounds was not in accordance with law. He further observed : "If at all there were no foot‑prints of the assailants near the car, as stated by the petitioner, there should have been reasonable grounds on proper material before the police to suspect him as responsible for the occurrence." This portion of the sentence was read out before me number of times by all the learned counsel, but none of them, was able to understand as to what was meant by this. The interpretation put forward by Dr. Khalid . Ranjha was that t "as no other footprints were found at the spot, hence merely on the ground of suspicion Major Zia had been implicated." In case this is what the learned Additional Sessions Judge meant then he could have said so.

11. In order to examine as to whether reasonable grounds exist or not, one thing which is very essential is that the Court seized of a bail matter in a non‑bailable offence, especially that of murder must take into considera tion entire prosecution evidence. Without adverting to the entire evidence it is not possible to give any finding whether reasonable grounds exist o not. For that matter, it is obvious that the learned Additional Session Judge never took into consideration entire circumstantial evidence, referred C to above.

12. For the foregoing reasons I am of the view that it was neither proper nor in accordance with law to pick a few pieces of evidence from her and there and then on the basis of it admit the respondent to bail. I would, therefore, set aside the order of the learned Additional Sessions Judge and cancel the bail of the respondent. He shall be taken into custody forthwith. Before concluding I would like to make ‑it clear that none of the observation made in this order is to be used against the respondent at the time of the trial. S. A. H. Bail cancelled.