1970 PLP 143 (SCMR)

On the basis of this complaint a case under sec tion 148/307/149 of the Pakistan Penal Code was also registered against the complainant side in the first complaint. Both these cases were investigated and after investigation, only Shafique and Taj Din were sent up under section 304, P. P. C. The alibi of the other co‑accused was accepted and they were shown in column 2 of the challan. . . After this, another private complaint was filed in the Court of a Magistrate, implicating all the six persons, including the four placed by the Police in column

2. The Enquiry Magistrate, after holding a preliminary enquiry, issued non‑bailable warrants of arrest against all the six persons. Taj Din and his five co‑accused then filed applications for bail before arrest in the High Court. Mr. Justice M. Jamil Asghar, on the 30th June 1969, allowed ad interim bail on the ground that Muhammad Shafique, the present petitioner, had not been named in the First Information Report filed by Nawab and that 4 others had been found to be innocent by the Police, who had placed them only in column No.

2. This came up for confirmation on the 12th September 1969, when no body appeared on behalf of the State and the complainant. The ad interim bail was confirmed ex parte. Two days later, however, an application was filed by Muhammad Hanif, at whose instance the private complaint had been filed, for cancellation of the ball. Simultaneously with this, Taj Din who had been earlier refused bail by the Sessions Judge, also moved an application for bail. Mr. Justice Muhammad Afzal Cheema maintained the order granting bail to the others but cancelled the bail allowed to the present petitioner and dismissed the petition of Taj Din for bail. The petitioner now seeks special leave to appeal from the said order and it is contended on his behalf, firstly, that there is serious doubt as to the participation of Muhammad Shafique, for, in the first information report, that was lodged with the Police by Nawab, Muhammad Shafique was not named and secondly, that the High Court was wrong in taking the view that since the Magistrate before whom the private complaint had been filed had directed the issuance of non‑bailable warrants after taking evidence and coming to a finding that a prima facie case had been made out, no bail could be granted. Whatever might have been the position with regard to the first complaint filed by Nawab Gujjar, in the private complaint, filed by Muhammad Hanif, there was no mistake. The petitioner was named as one of the culprits. In the information lodged by Taj Din also the present petitioner was described as one of his companions who had picked up the gun of Inayat and started firing with it. There can be no doubt, therefore, that there was a complaint against the present petitioner as well, on the basis of which action had been taken. With regard to the next contention advanced by the learned counsel, reliance has been placed on an observation made by this Court in the case of Muhammad Ayub v. Muhammad Yaqub and another (P L D 1966 S C 1003) where, while dealing with the facts of the case, S. A. Rahman, J., as he then was observed :‑ "Of course, the mere existence of an order of commitment for trial need not be equated with a finding that `there appear reasonable grounds for believing that the respondent was guilty of an offence, punishable with death or transportation for life'." But a few lines above this passage he also observed that :‑ "No reasons were mentioned by the learned Single Judge for the grand of bail in a case of murder in which the commitment, order had already been passed, though subsection (3) of section 497, prescribes that an officer or a Court, releasing any person on bail under subsection (1) or subsection (2) of that section, shall record, in writing, his or its reasons for so doing." Again after the passage relied upon it was observed :‑ "Considering, however, that there had been an order of com mitment passed, that no fresh grounds had been urged for bail, before the second learned Single Judge over and above those considered by the first Judge and that no exceptional circum stances existed, justifying the grant of bail, I consider that the exercise of discretion by the second learned Judge, in allowing bail, was open to exception, on the legal plane." In the context in which the observation relied upon was made it appears that S. A. Rahman, J. was not thereby intending to lay down any general principle, for, the existence of the commitment order was actually considered by him to be a very relevant circumstance which could not have been overlooked without special reasons or fresh grounds. 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 A on the record but, as pointed out in the case of Khalid Saigol v. The State (P L, D 1962 S C M R 495) merely "to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left un-rebutted, may lead to the inference of guilt". Following this principle, this Court has, in the case of Nadara v. Jamait Khan and another (P L D 1968 S C 310) observed that "ordinarily the framing of a charge upon taking evidence referred to in section 208 and examination of the accused would furnish a ground for such a belief", as is required to be formed under section 497, Cr. P. C. Again in Ghulam Farid and another v. The State (1 969 S C M R 80) while dismissing the petition it was observed that "commitment is by itself sufficient to show that a prima facie case exists". To the same effect are the observations of this Court in the case of Ahmad Bakhsh v. The State (1969 S C M R 266) where also, after the accused had been committed for trial, it was held that the High Court had validly refused to grant bail, for, it was not for the High Court at this stage‑ to evaluate the evidence. It had, merely to consider whether upon the material on the record, such grounds for belief had been made out or not. It seems, therefore, that the sub sequent view of this Court is clearly to .the effect that where aj prima facie case, upon the taking of evidence, is found to exist, that is also ordinarily sufficient for holding that there are reason able grounds for believing that the person charged with the offence is guilty. This view also appears to find support from the language of the section itself. It will b2 observed that under section 497 of the Criminal Procedure Code all that is necessary is to see is whether "reasonable grounds" exist. Now "grounds" are entirely different from "evidence". "Grounds" may or may not c constitute "evidence" but, nevertheless, they can be taken into consideration. Under section 208, Cr. P. C. however, the Magistrate has to take evidence and under section 210, Cr. P. C., upon such evidence being taken and upon such examination, if any, being made of the accused, as is considered necessary, the Magistrate has to be satisfied that there are sufficient grounds for committing the accused for trial, before he can frame a charge, declaring with what offence the accused is charged. To arrive at the state of mind required by section 210 of the Criminal Procedure Code one has as of necessity, to go beyond the stage of mere belief as to the existence of "reasonable grounds". The Magistrate has to be "satisfied" that a prima facie case has been made out. It is difficult, therefore, to appreciate as to how it can possibly be argued that even though a prima facie case has been made out, there are no reasonable grounds for believing the accused to be guilty. This can only happen in a case which would also justify an application for quashment of the commitment and in such a case it would be more appropriate for the accused to apply for the quashment of the commitment rather than merely to ask for bail. For the reasons given above, we are of the opinion that the contention advanced by the learned counsel is not tenable in view of the subsequent opinions of this Court which have been adverted to earlier. This petition is accordingly dismissed. Leave refused.