1983 PCr (PLP)

RAJA MUHAMMAD KHURSHID KHAN, C. J.

The judgment of a learned Single Judge of the High Court passed on the 16th of December, 1981, has given rise to this appeal by leave. By this judgment the learned Judge felt advised to discharge the order of the District Criminal Court, Mirpur, dated 5-11-1981 and release on ad interim bail Matloob Hussain Shah, the respondent-accused, who is involved in a murder case.

2. Prosecution case, in brief, is that the sister of Zahid Hussain Shah, complainant, was married to Ibrar Hussain Shah, accused (not before us), but for her strained relations with her husband she was compelled to leave his house and put up with her father and brothers. On the day of occurrence, i.e. 4-8-1981, at about 5-00 p.m. Ibrar Hussain Shah, accused, at the house of complainant attempted to strangulate his infant child. His wife, the sister of the complainant, and the complainant himself raised hue and cry which attracted the father of the complainant on the spot. He intervened to save the life of the child and turned Ibrar Hussain Shah out of his house. Ibrar Hussain Shah went away and after some time again appeared on the scene of occurrence along with his two brothers, Alamdar Shah and Imtiaz Hussain Shah and his father Matloob Hussain Shah, the present respondent. Matloob Hussain Shah called the deceased Zumarred Hussain Shah out of his house and then caught hold of him. While the deceased was being held by him Ibrar Hussain Shah fired through a revolver at his abdomen resulting in the death of the deceased. Alamdar Shah and Imtiaz Hussain Shah also hurled stones but they landed on none. Mahmooda, the sister of the complainant, and Zubaida, the complainant's mother, it is stated by the prosecution, were the eye-witnesses of the occur rence. This is all what the prosecution says about the occurrence.

3. Matloob Hussain Shah, respondent, moved for bail before the District Criminal Court, Mirpur. Bail thereat was refused to him vide Court's order dated 5-11-1981. He was, however, released on bail by a learned Single Judge of the High Court vide order dated 16-12-1981. Hence this appeal to impeach the said order of the High Court.

4. The report under appeal shows that in coming to the conclusion that reasonable grounds do not exist to connect the accused with the offence charged, the High Court was influenced by the following facts: - (i) that the respondent's name does not appear in the dying declaration of the deceased made before Dr. Arif, P. W.; (ii) that the only part attributed to the respondent is that the deceased was fired at when he was caught hold of by the respondent ; and (iii) that the fact that the two of the accused, namely ; Imtiaz Hussain Shah and Maradar Hussain Shah for want of sufficient evidence were sent to the District Criminal Court under section 169, Cr. P. C. makes out a case for bail. For the above-stated reasons in the estimation of the High Court, at the present moment, sufficient grounds do not exist to connect the respondent. accused with the offence of murder justifying refusal of bail to the respondent.

5. Raja Muhammad Akram Khan, the learned Advocate-General, assails the judgment of the High Court, inter alfa, on the grounds :- (i) that under the Islamic Jurisprudence bail in cases of 'Hadood' and 'Qisas' is not permissible ; (ii) that after the establishment of the Shariat Court on 8th October, 1979, the High Court in murder cases had no jurisdiction to enlarge a person on bail ; (iii) that the High Court in allowing bail to the respondent had not exercised the discretion in accordance with the settled principles govern ing bail matters. The discretion exercised by the District Criminal Court in refusing bail to the respondent, according to the learned Advocate-General, could not be interfered with as the same was exercised properly ; and (iv) that the learned Judge in the High Court has misdirected himself to say that the dying declaration of the deceased, made before Dr. Arif, does not implicate the respondent. The deceased, the learned Advocate-General submits, was only able to utter that he was fired at by Ibrar Hussain Shah, accused, and thereafter he became unconscious and naturally he could not give a detailed history of the occurrence showing the part attributed to the respondent.

6. Ch. Muhammad Taj, the learned counsel appearing in opposition, has supported the judgment of the High Court, inter alia, on the following grounds 5 (i) that the High Court at the relevant time of releasing the respondent on bail had the jurisdiction to entertain and decide the bail matter because the Islamic Penal Laws Enforcement Act, 1974 (amended) creates no bar for the High Court to release a person on bail in murder cases ; and (ii) that in the circumstances of the case, the order of the learned District Criminal Court was rightly reversed by the High Court As the order was not passed in accordance with the well settled principles governing bail matters.

7. On the Ist point, referred to above, the learned Advocate-General had placed reliance on different books .of Islamic Jurisprudence of various authors enlisting the view that bail cannot be granted to a person charged with an offence carrying the. sentence of 'Qisas' or 'Hadood.' All the exercise by the learned Advocate-General is premature and no deep thought is required to bold so. The Courts are only governed and guided by the codified laws and unless the whole conception of bails embodied in the Islamic Jurisprudence is not codified, we cannot legally go by them. Till then w have only to get guidance from the Islamic Jurisprudence relating to bail only to the extent of its being compatible, with the codified law. If codified law is in departure to the Islamic Law of Bails, naturally the Courts have to follow the codified law even if morally convinced that the Islamic law is t be preferred to the codified law, We would however welcome a complete switch over of all the laws in strict conformity with the tenets of Holy Quran and Sunnah.

8. Let us now deal with the second point. It is admitted principle of law that the jurisdiction of the superior Courts cannot be taken away except by express words or necessary implications. A distinct and unequivocal enactment is always required for the purpose of either adding to or taking away the jurisdiction of the superior Courts. It admits of no exception that the jurisdiction of the superior Courts cannot be taken away unless it is done in express words of exclusion.

9. Here in this case there is no provision under the Islamic Penal Law Enforcement Act of 1974 or in any other law taking away the jurisdiction o the High Court to entertain a bail matter under section 498, Cr. P. C. in murder case, carrying the sentence of death. No doubt under section 25(i) of the Azad Jammu & Kashmir Islamic Penal Laws Enforcement Act (Amendment) Ordinance, 1981, the right of appeal in murder cases from the orders of the District Criminal Court has been given to the Shariat Court but the powers of bail remained with the High Court. The position of law, no doubt, was anomalous; but it is to be taken as it is. On the one hand the right of appeal was given to the Shariat Court while on the other hand, the Shariat Court was not given the powers to enlarge a person on bail even if his appeal awaited decision before it and the jurisdiction to do so under section 498, Cr. P. C. still vested in the High Court.

10. It appears that to resolve this unhappy situation an Ordinance known as Azad Jammu and Kashmir Shariat Court (Amendment) Ordinance, 1982 (Ordinance No. LVIII of 1982) was later on promulgated on 28th February, 1982. Under section 5 of this Ordinance a new section 7-A in the Ordinance No. XXXII of 1982 was added. This section reads as under :- The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898). shall apply, mutatis mutandis, in respect of cases under this Ordinance Provided that in the said Code the words High Court, Sessions Court and Magistrate First Class wherever occurring, shall be construed to mean the Azad Jammu and Kashmir Shariat Court, District Criminal Court and Tehsil Criminal Court as the case may be, for the purposes of this Ordinance. It would thus appear that by this amendment and not before, the provisions of the Code of Criminal Procedure were made applicable to the Azad Jammu and Kashmir Shariat Court. However, we have our own reservations about the validity of this Ordinance too, in taking away the powers of the High Court to enlarge a person on bail. But as the fate of this appeal does not hinge on the decision of this question we leave it open to be decided in a case where its decision seems to be necessary. However one thing is sure that before this Ordinance the High Court, only to the exclusion of the Shariat Court; had the jurisdiction to release a person accused of the offence of murder on bail. We are fortified in our view in Ch. Zahur Illahi, M. N. A. v. The State (P L D 1977 S C 273). At page 308 of the report, dealing with the identical question, it has been observed :- "I have examined every aspect of the argument addressed by Mr. M. Anwar with sympathy and confess inability to accept any one of his contentions. There is no cavil against the proposition that the jurisdiction of superior Courts cannot be taken away except by express words or necessary implication. See Craies on "Statute Law," p. 122 "that a distinct and unequivocal enactment is also required for the purpose of either adding to or taking from the jurisdiction of superior Courts of Law." Similarly Maxwell in "The Interpretation of Statutes" at page 112 points out that there is a general presumption against an ubtebtuib to dustyru the estavkusged (sic) state of the law, or to interfere with the vested rights of the subjects. It is supposed that the Legislature would not make important innovation without a very explicit expression of its intention. Pyx Granite Co. Ltd. v. Minister of Housing and Local Government 1960 A C

260. It is followed by the remark that it would not be inferred, for instance, from the grant of a jurisdiction to a new Tribunal over certain cases, that the Legislature intended to deprive the superior Court of the jurisdiction which it already possesses over the same cases. Shaftesbury v. Russell (1.823) 25 R R 534, Rochdale Canal Co. v. Kin (1849) 14 Q B 122 and Itchin Bridge Co. v. Southampton Local Board of Health (1857) 27 L J Q B

128. The remarks in these cases are applicable to such of the statutes which only set up a new Tribunal to decide cases, but do not in express words exclude jurisdic tion of the superior Courts which it already possessed over the same cases." (Underlining' is ours) For the above-stated reasons the argument of the learned Advocate General in respect of lack of jurisdiction of the High Court to release a person on bail, in a murder case, stands repelled.

11. Let us now deal with the next point as to whether the High Court has exercised the discretion illegally in allowing the bail to the respondent. Ordinarily, bail is not allowed in a murder case especially when the allegation against a person in the F. I. R., if left unrebutted, renders him liable to a sentence of death or transportation for life. But if the allegation in the F. I. R. against a person requires further inquiry to implicate him with the offence charged, bail would positively be allowed to such a person. The law confers wide discretionary powers on Courts to grant or refuse bail in non-bailable offences but such discretion must, of course, be exercised in a judicial and proper manner. The appreciation and drawing conclusions therefrom in relation to all the circumstances is the function exclusively of the trial Court and the superior Courts shall refrain to do so. Whether the witnesses should or should not be believed is a question which will be for the trial Court to decide and the High Court is not expected to examine the merits of the case in bail matters and give an opinion which may influence the mind of the subordinate Courts during or at the end of the trial. On the finding whether reasonable grounds appear for believing that the accused person has been guilty, any explicit expression of opinion about the merits of the case by the High Court may not therefore be proper. The determina tion whether bail is to be allowed to a person accused of the offence punishable with death or transportation for life will, however, depend upon the facts of each case.

12. After looking into the judgment of the High Court we are not totally convinced with the argument of the learned Advocate-General that the learned Judge has misdirected himself on the merits of the case. All that is said by the learned Judge makes us to believe that the learned Judge after taking into consideration the various aspects of the case found that at this stage it cannot be said with certainty that there exists reasonable grounds to that the respondent has committed an offence punishable with death or say transportation for life. In our view the detailed grounds touching the merits of the case could be avoided and therefore we direct that the trial Court would decide the case uninfluenced by the observation made by the High Court in releasing, the respondent on bail. Nevertheless, the conclusion drawn by the High Court is correct and we would not interfere in the discretion exercised by the High Court though we have our own reasons different from that of the learned Judge in the High Court to own the conclusion.

13. The only allegation against the respondent is that he held the deceased before he was fired at by Ibrar Hnssain Shah. It is yet to be determined as to whether the position in which the deceased was held, Ibrar Hussain, accused, could safely hit at the deceased ignoring the fact that the fire may hit his father Matloob Hussain Shah, respondent-accused. It also makes us to believe that it is yet to be seen by the trial Court whether it was at all necessary for the respondent to have held the deceased when Ibrar Hussain Shah, accused, allegedly fired at the deceased because it will not have taken more than a second in inflicting the fire injury to the deceased. The question, therefore, whether. the respondent in reality did secure the deceased in the circumstances of the case needs further inquiry. Besides, the respon dent is an old man of 65 years and this is also an additional reason for his bail because, in our view, his case would be covered by the proviso of sub section (i) of section 497, Cr. P. C. The respondent, as said earlier, is only charged with facilitating the murder of the deceased. This question, there fore, requires further inquiry and the respondent, in our view, is entitled to bail. However, we may not be misunderstood to lay down a principle of universal application that in all cases whereat the accused is caught hold of by a person, such person shall necessarily be released on bail. What we have said is that the circumstances in a given case, as the case is before us may warrant such a finding.

14. We are fortified in our view in Shahid Iqbal v. The State (1976 P Cr. L J 758) and Basharat Hussain v. Ghulam Hussain etc. (1978 S C M R 357). In the first case it has been observed that the question that a person held the deceased by arms needs further inquiry and bail pending such inquiry is to be allowed. In the latter case-law to the effect that when the solitary part of holding the deceased is attributed to the accused this question requires further inquiry pending which the accused is to be released on bail. For the view we have taken in the matter there is nothing wrong in the order of the High Court, therefore, the appeal stands rejected. Appeal rejected.