P L D 1988 Supreme Court 710 (PLP)

GHULAM MUJADDID MIRZA, J.‑‑This appeal is by leave of this Court. It concerns the bail allowed by a learned Judge of the Lahore High Court to Ghulam Abbas and Safdar Khan respondents, by order dated 11‑1‑1988. On 8‑8‑1987, a case under section 354‑A, P.P.C. was registered against respondents 2 and 3 at Police Station, Garh Maharaja. Sarfraz Khan appellant lodged the report. It was alleged that on 30‑7‑1987 at about Degarwela, the two respondents caught hold of his wife Manzooran Mal, stripped her and in that condition she was attacked with the Butt of a gun which Safdar Khan was carrying and a Sots which Ghulam Abbas had with him. Background of this incident was the unpleasant matrimonial relations between Zafar Iqbal son of the appellant and his wife Zubaida Mai sister of Ghulam Abbas respondent. About eighteen days prior to the occurrence, Zubaida Mai went to the house of her parents because of some differences with her mother‑in‑law Manzooran Mai. Zafar Iqbal visited his in‑laws couple of times to bring back his wife. This was not liked by Ghulam Abbas who refused to send his sister with her husband. Zafar Iqbal was warned not to visit the house of Ghulam Abbas otherwise it would not be good for him. In spite of the aforesaid warning Zafar lqbal met his wife outside the house on the night between 28/29‑7‑1987. He wanted to pursuade her to accompany him. The couple was noticed by Ghulam Abbas. He chased Zafar lqbal who escaped. Zafar ,Iqbal came to his house. In that pursuit Ghulam Abbas fired two shots with his .12 bore shot gun but Zafar Iqbal was not hit. Ghulam Abbas took it as a personal insult. Next morning he threatened Sarfraz Khan and his son Zafar Iqbal that their females would be humiliated. On the afternoon of 30‑7‑1987, Sarfraz Khan appellant had come to his house from Garh city. He was told by his wife that about an hour ago when she was coming to her house after visiting her parents and was on the Katcha thoroughfare near the house, Ghulam Abbas armed with Sota and his cousin Safdar Khan armed with .12 bore gun appeared from the opposite side. Ghulam Abbas pulled the Dhoti of Manzooran Mai and tore her shirt. She became naked. He then caught hold of her from her. hair, dragged her and gave blows on different parts of her naked body. Safdar Khan hit her with the Butt of his gun on the left eye brow. Both of them abused Manzooran Mal. She raised alarm. Arif Khan and Falk Sher present nearby came to the spot: They rescued Manzooran Mai. Falk Sher took off his Dhoti and gave it to Manzooran Mai to cover her body. Ghulam Abbas who had removed the Chadar of Manzooran Mai put it on his shoulder and alongwith Safdar Khan left the place. This led to the registration of the aforesaid case as a result of which the two respondents were taken into custody. After their arrest they applied for bail to the Illaqa Magistrate who by means of the following order allowed bail to the respondents:‑ TRANSLATION The crime under Section 354 is bailable. Both the accused should submit a bail of Rs 10,000 with a guarantor or would remain in Judicial Lockup. The complainant moved for cancellation of bail. The petition was dealt with by the Additional Sessions Judge, Jhang, who by order dated 21‑11‑1987 allowed the application and cancelled the bail. Thereafter, the respondents moved the Lahore High Court from where they got bail order by the learned Judge of that Court which has been impugned in this appeal. We have heard learned counsel for the appellant who submitted that the order of the learned Judge was contrary to the dictum laid down by this Court in the case of Manzoor and 4 others v. The State P L D 1972 S C

81. It was further submitted that the observation pertaining to the nature of the offence was not called for. This should have been left for the trial Court to determine. We have also heard learned counsel for the respondents who submitted that the discretion exercised by the High Court was in accordance with law. The case of the respondents before the High Court was that they had been allowed bail under section 496, Cr.P.C., hence it could not be cancelled under section 497(5), Cr.P.C. by the Additional Sessions Judge. The reason which prevailed with the learned Judge of the Lahore High Court in granting bail to the two respondents was to the following effect:‑ " ..I find that the case was registered under section 354‑A, P.P.C., that during investigation the police found that no case punishable under section 354‑A, P.P.C. was committed by the petitioners and that they had simply outraged the modesty of Mst. Manzooran MAi; that a challan under section 354, P.P.C. was prepared on 17‑9‑1987 and it was after the submission of the challan that the learned Magistrate granted bail to the petitioners on the ground that offence under section 354, P.P.C. was bailable; that the order allowing bail to the petitioners was obviously passed under section 496, Cr.P.C. and as such the bail granted by the Magistrate, in the circumstances of the case, could not have been cancelled under section 497(5), Cr.P.C." Then the learned Judge referred to section 497, Cr.P.C. and observed:‑ "The words 'who has been released under this section' are of great significance. It is thus, crystal clear that bail granted under section 496, Cr.P.C. cannot be cancelled by High Court or Court of Sessions in exercise of powers under section 497(5), Cr.P.C. Be that as it may the fact remains that the challan has been submitted against the petitioners under section 354, P.P.C. which is bailable." It was after some investigation that the offence was altered from sections 354‑A to 354, P.P.C. and the challan was submitted accordingly. The opinion of the police officer is one of the factors to be taken into consideration while examining the question of bail. It has been repeatedly held by this Court in number of cases that such an opinion is neither binding on the Court considering the question of bail nor could that be the sole ground for admitting an accused to ,bail. Surprisingly enough the learned Judge did not at all advert to the circumstances‑ of the case nor mentioned the reasons which prevailed with the police for the change in their stance. The first / information report as well as the medico‑legal report of Manzooran Mai were the relevant factors to be taken note of. It could not be left to the whim of the police to change the nature of the offence according to their convenience and design. According to the medico‑legal report, Mst. Manzooran Mai had the following injuries:‑ (1) Multiple, abrasions of various length and breadth spread over an area of 10 x 8 c.m. on the front of chest in, between the breast. (2) Abrasion 9 x 1/8 c.m. on the back of left forearm. (3)Two abrasions 8 x 1/8 c.m., 4 x 1/8 c.m. on the back of inner side` of the right fore‑arm. (4) Swelling 6 x 4 c.m on the outer side of left eye‑brow. (5) Abrasion 4 c.m. x 1/8 c.m. on the left leg. (6) Abrasion 6 c.m. x 1/4 c.m. on the outer side of the right thigh. (7) C/o pain in the left and right buttock (8) C/o pain in the neck. Injury No.l is very significant and speaks for itself. While considering as to whether a particular offence falls within a‑specific provision of the Penal Code or other relevant law, it is necessary to take all the relevant facts into consideration and then only proper legal conclusion can be drawn regarding the nature of offence and the law applicable. In this sequence it must be kept in mind that in all bail matters special care must be taken not to give a specific finding or express any opinion either about the merits of the case or the nature of the offence. 4ny such observation amounts to sealing the fate of the case in favour of or against either party. In due course such a finding is likely to be exploited by a party and would prejudice the mind of the Court which is to try an accused. Even, otherwise, such a practice would be contrary to the doctrine of judicial discretion. For the foregoing reasons we don't think that the order of the High Court was in accordance with law. This appeal is allowed. The impugned order is set aside. The respondents have already been taken into custody. They shall remain in the judicial lock‑up till the conclusion of the trial against them.‑= S. A. IS‑190/S Appeal allowed.