1970 P Cr (PLP)

Raja Muhammad Mazafar for the Complainant. Three persons, namely, Akbar Din, Habib Ullah and Saif Ullah, have applied for bail under section 498, Cr. P. C. in a murder case. The question of bail relating to Muhammad Akram, a co-accused of the petitioner, has earlier been, considered by this Court in Crl. Misc. 1003 of 1968. It was held that he (Muhammad Akram) was entitled to bail.

2. The allegations, briefly, are that Abdul Aziz complainant and one Akbar are brothers. They had joint lands. The allegation further goes that they had privately partitioned that land. There were some shisham trees standing on the common banna which were cut by the sons of Akbar Din accused. Abdul Aziz and his sons, i. e. Amanat Ali, Rehmat Ali and Karamat Ali objected to it. A fight ensued in which both the parties were injured. Karamat Ali died as a result of blunt weapon injuries on his head. Muhammad Akram, accused who has already been released on bail, and Akbar Din petitioner were carrying dangs while Habib Ullah and Saif Ullah petitioners were carrying hatchets. The latter two petitioners are said to have used the blunt side of their hatchets. The fatal injuries on the head of the deceased, admittedly, could not be caused by all the four accused persons.

3. The learned Additional Sessions Judge treated the case as that of mutual fight and allowed bail to Muhammad Akram. A move was made in the High Court under section 497(5), Cr. P. C. for the cancellation of bail of Muhammad Akram, whereupon my learned brother Muhammad Afzal Khan, J., affirmed the order of the learned Additional Sessions Judge, with the following remarks: - "The medical evidence shows that the fatal injuries caused to Karamat Ali deceased were blunt weapon injuries on the head. The allegations are that Muhammad Akram and another assailant were armed with dangs. Evidence of the eye-witnesses has been recorded in the Court of the Committing Magistrate. The evidence does not ascribe the fatal injuries to Muhammad Akram, respondent. Apparently, the fight being a free fight and common intention being absent, the culpability of each assailant is to be assessed individually. Without entering into a detailed examination of the evidence, it is reasonable to conclude that Muhammad Akram is not shown to have caused the fatal blows."

4. The learned counsel for the petitioners read, from his own copies, the F. T. R. and the portions from the evidence recorded during the commitment proceedings. Apart from the learned counsel appearing for the State, I have heard also, Raja Muhammad Muzaffar representing Abdul Aziz complainant. On the facts and circumstances of the case, I have no reason to differ from the observations made by Muhammad Afzal Khan, J. On this view of the matter, I asked Raja Muhammad Muzaffar, the learned counsel for the complainant, and Mr. Hamid Aslam Qureshi, the learned counsel for the State, whether it was possible to distinguish the case of the present petitioners from that of Muhammad Akram in so far as those observations are concerned. Raja Muhammad Muzaffar frankly conceded that it is not possible because the injuries are of blunt weapon and hatchets are alleged to have been used from the blunt side. The learned counsel for the State, however, contended that the very fact that two of the petitioners were carrying hatchets should disentitle them to bail, even if otherwise their case is pari materla with that of Muhammad Akram. I do not think there is any force in this contention. The fact that there are two injuries on the head o the deceased and, in the above circumstances, it is not possibl to determine as to who caused those injuries. Moreover the circumstance that the case appears to be that of a free fight I which the culpability of each assailant may ultimately be found t be only individual; does not make it possible to hold that thos accused who carried the hatchets, by that fact alone, were no entitled to bail. The learned counsel for the complainant, however, laid a great stress on two points, namely,- (i) that the accused have been committed to stand trial; and (ii) that a petition for special leave to appeal has been filed against the order, dated 2nd December 1968, of this Court relating to Muhammad Akram, which is pending but leave has not yet been granted. .

5. The fact that a petition for special leave to appeal ha been filed was brought to the notice of this Court on Ist April 1969, and for that reason, the learned counsel for the complainant had sought an adjournment 'of a fortnight. The case has again come up for hearing after a fortnight. As the question relates t bail, particularly when in the similar circumstances another person is on bail, and also for the fact that petition for special leave to appeal is only pending and leave has not yet been granted, I do not think it necessary to postpone the decision of this petition for that reason alone.

6. On the question whether or not commitment, per se, is enough to refuse bail, both the learned counsel cited some rulings which need to be noticed. In Muhammad Ayub v. Muhammad t Yaqub and another (1 P L D 1966 S C 1003), their Lordships of the Supreme Court were pleased to observe at page 1015 of the report as follows "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". Only a prima facie case must be deemed to exist against him on the basis of the order of the commitment." In Noor Samand v. The State (1968 S C M R 1061), leave to appeal in a bail matter was refused by their Lordships of the Supreme Court, with the following observations: - "Section 497 of the Code of Criminal Procedure laid down that an accused person shall not be granted bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life. No general rule can be laid down in this behalf for the determina tion whether reasonable grounds appear for such a belief will depend on the facts of each case. It can, however, be said that barring an exceptional case an order committing an accused person under Chapter XVIII to stand trial for the commission of an offence punishable with death or transportation for life would constitute sufficient ground for sing or cancelling bail." In the case of Nadara v. Jamait Khan and another (P L D 1968 S C 310), while dealing with the effect of commitment on the question of bail, their lordships, of the Supreme Court were pleased to observe at page 312 of the report as follows: - "The scope of an order of commitment under section 210 of the Code of Criminal Procedure no doubt differs from the conditions provided in section 497 that `there appear reasonable grounds for believing that he has been guilty' but 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 relief. At the same time the person permitted for trial may in an exceptional case be allowed bail if the evidence produced before the Inquiry Magistrate prima facie makes out that reasonable grounds do not appear for believing that he had been guilty. There is a seemingly incongruity between an order committing an accused person for trial and framing a charge against him and the view formed by the Sessions Judge or the High Court that for the purposes of bail, reasonable grounds do not appear for believing that he has been guilty. This is consequent upon the difference in the provisions of section 210 and section, 497, but the two sections can be reconciled by giving due regard to the order of commitment in arriving at the conclusion whether the conditions provided in section 497 for granting bail are fulfilled in a given case or not." It follows from the above observations that the commitment per se is no bar to a consideration of the question under sub section (1) of, section 497, Cr. P. C. whether or not there appear reasonable grounds for believing that the accused person has been guilty of an offence punishable with death or transportation for life. As indicated by their Lordships due weight, of course will be given to the commitment order while deciding the question involved under subsection (I) of section

497. Cr. P. C., but the order of commitment cannot be held to be binding on the High Court in that matter. The nature of the jurisdiction in the commitment proceedings as explained in various pronouncements of the Supreme Court, is such that the trial is normally to be held by another superior Court. Therefore, the Magistrate' opinion as to the prima facie nature of the case cannot have a binding effect on the question of the determination as to the reasonable grounds for believing that the applicant-accused was guilty of an offence punishable with death or transportation for life. In this base, I have already mentioned the circumstances, on the case. They at, the present stage, are not enough to hold that there appear reasonable grounds for believing that the petitioners are guilty of an offence punishable with death or transportation for life. It is also to be noticed that in the peculiar circumstance of the case where one co-accused has already been released o bail and his bail has been confirmed by the High Court, the fact that a commitment order has ' been passed cannot be considered to be binding of the High Court, while exercising its jurisdiction under section 498 read with section 497, Cr. P. C. In the light of the above discussion, I grant to the three petitioners in the sum of Rs. 20,000 each with two sureties each in the like amount to the satisfaction of the Additional District Magistrate, Sheikhupura. Bail allowed.