MUHAMMAD ILTAF Versus NAZIR MUHAMMAD

ORDER

1. This is an application by Muhammad Altaf for the cancellation of bail granted to Nazir Ahmad respondent. He is accused of offences under section 302/307, P. P. C. The allegations against him are that he murdered his sister Mst. Majidan Bibi under grave and sudden provocation. It is stated in the F. I. R. itself which was lodged by Muhammad Altaf that Nazir Ahmad accused (respondent) had suspected that Muhammad Altaf complainant had illicit relations with Mst. Majidan Bibi. On the day of the occurrence when Nazir Ahmad respondent came to his house, he found the complainant, who used to supply milk at the house of the respondent, talking to his sister who was alone in the house. Nazir Ahmad respondent came shouting that he (Muhammad Altaf complainant) ruined their honour and he would not leave him alive. Saying this he gave two hatchet blows on the head of the complainant. Mst. Majdan Bibi rushed forward also gave repeated hatchet blows to her. Some other persons also turned up on hearing the noise and the respondent ran away along with hatchet. His sister Mst. Majidan Bibi died as a result of the injuries.

2. The learned counsel for the petitioner submitted that the learned Sessions Judge, Lyallpur had granted bail to the respondent on the ground that he was of tender age being 15 or 16 years old, but to fact, be is 17 years and 11 months old. In support of this contention he produced a certified copy of the birth certificate showing that the date of birth of Nazir Ahmad respondent is 15-9-1957.

2. The learned counsel for the respondent submitted on the other hand, that according to the F. I. R. itself Nazir Ahmad respondent bad killed his sister under grave and sudden provocation. On a question of family honour when he saw his sister talking with her paramour at a time when she was alone in the house. He submitted that on the facts alleged by the prosecution itself, the case against the respondent would not fall under section 302, P. P. C. but under section 304(I), P. P. C. He submitted further that in such cases the accused have invariably been sentenced to short sentences ranging from one day to three years. In support of this contention he cited a number of authorities in which the accused had been given short sentences on having killed a female relative under similar circumstances. He then relied on the observations of the Supreme Court in Amir v. State (P L D 1972 S C 277). In that case Amir petitioner was accused of having fired at and killed one Yasin. But there was evidence on the record, in the shape of the statement of Manzoor complainant and other witnesses, that he had done so in the exercise of the right of self-defence. The High Court had rejected his bail application. He therefore went up in appeal to the Supreme Court, where it was urged on his behalf that nothing is as offence which is done in exercise of private defence and that, in any case, if he is found to have exceeded that right, he can, at the most, be convicted of an offence under section 304(I), P. P. C. for which he maybe sentenced to any term of imprisonment, which may extend to 10 years' R. I. but not necessarily transportation for life, which is the maximum provided under this section. The Supreme Court while dismissing the application directed the learned counsel for Amir accused to renew his bail application before the High Court. The observations of the Supreme Court may usefully be reproduced here :-

3. "There is no mention in the order of the learned Single Judge that he has also examined the statements made by witnesses other than P. W. Manzur. We have, therefore, directed the learned counsel for the petitioner to renew the petitioner's application for bail before the learned Single Judge, who will consider the whole case for purposes of bail on the data that is available . . . . . ."

4. The petitioner there upon again moved the High Court for bail and the learned Single Judge, who reconsidered the case, recorded a very elaborate judgment which is reported as Amir v. State (1973 P Cr. L J 205) and granted bail to the petitioner following the observations of the Supreme Court in P L D 1972 S C 277. The relevant observations may be reproduced here for facility of reference:-

5. ". . While considering the question whether a case fell within the prohibition contained in subsection (1) of section 497, Cr. P. C. the Courts are not supposed to keep in view only the maximum sentence (of transportation for life) provided in the relevant law. If in a particular case, the Court is in a position to come to a conclusion on the data placed before it even at bail stage, that the prosecution case taken to its extreme would not entail the maximum punishment, it would go out of prohibition. The Court will then have the jurisdiction to grant or refuse bail in the exercise of its jurisdiction."

6. The learned counsel for the petitioner urged that if an accused person is permitted to argue that it is possible that he might not be awarded the maximum sentence, then in almost all cases punishable with imprisonment for life or 10 years' R. I. (such cases having been brought within the prohibitory part of section 497 (1), Cr. P. C. by Ordinance No. VIII of 1973), the accused shall claim to be entitled to grant of bail as a matter of right. He also pointed out that the expression used in section 497(1), Cr. P. C. with regard to cases in which bail is not to be ordinarily given is "an offence punishable with death, imprisonment for life or 10 years' R. L" He argued that it is evident from the expression "punishable" that what the Court is required to see while considering the grant or refusal of bail is the maximum sentences with which the offence in question is punishable and not the sentence which is likely to be awarded to the accused in that case.

3. I have carefully considered these contentions as well as the two authorities mentioned above, and feel that while it is true that ordinarily bail is not to be granted in cases which are "punishable" with death, imprisonment for life or 10 years' R. I. i.e cases in which these are the maximum sentences provided by the Penal Code (unless of course the case of the accused /petitioner comes within the proviso to section 497(1), Cr. P. C. or where there are reasonable grounds for believing that the petitioner is not guilty of the offence in question or where the case is covered by subsection (2) of section 497, Cr. P. C. But there are some cases in which although the maximum sentence may be imprisonment for life or 10 years' R. I.' but where, in view of the nature of the allegations and the circumstance in which the offence was committed, coupled with a long string of authorities of the Superior Courts, it is well settled that the maximum sentence is never awarded. In such cases it would not be proper to refuse bail to the accused persons merely on the ground that the maximum sentence provided for the offence is imprisonment for life or 10 years' R. I.

7. Therefore, respectfully following the observations in Amir v. State and Amir v. State, I think the present case is one where the accused/respondent, is not at all likely, to be awarded the maximum sentence, provided for the offence committed by him and, as such, it is not a case where bail granted to the respondent should be cancelled irrespective of the fact that he is above 16 years of age.

8. The application for cancellation of bail is, therefore, dismissed.

9. K. B A Application dismissed.