NISAR AHMAD Versus STATE

1. SAJJAD AHMAD, J. -The petitioner, Nisar Ahmad, and his two relations, Muhammad Ashraf and Fateh Khan, have been committed to the Court of Sessions to stand their trial under section 302/34, P. P. C. for having, in furtherance of their common intention caused the murders of Gul Mubarik and Sher Afzal, on the 6th of January 1970.

2. According to the prosecution case, the cattle of Muhammad Ashraf, accused, had damaged the wheat crop of the deceased, who rounded them up and took them to the cattle pound. The three accused, variously arched, overtook them on the way, stopped the cattle, and during the same episode, Muhammad Ashraf, who was carrying a gun, fired at the two deceased persons, killing them instantly on the spot.

3. After his commitment, the petitioner made an application for his bail to the learned Sessions Judge, Rawalpindi, which was dismissed, and his application for bail in the High Court has also met the same result.

4. The main ground for bail urged there, and which has been repeated before us, is that, on the facts of the case, section 34 was not attracted, to make the petitioner constructively liable for the firing done by his co-accused, Muhammad Ashraf. The learned Sessions Judge has observed that prima facie section 34 is applicable on the evidence recorded during the inquiry, while in the High Court, the learned Chief Justice, dealing with this contention, has commented as follows

5. "It is not possible for me to embark upon an examination of the contention that section 34 is not attracted to the case -this contention involves an appraisal of the entire evidence led by the prosecution, and only then it could be said whether there was evidence to show pre-concert between the petitioner and his co-accused. The present is not the stage to undertake such an analysis."

6. Another consideration, which prevailed with the learned Chief Justice in re fusing ball, was that according to the dictum of this Court in the case of Muhammad Shafiq v- The State (1970 S C M R 143) the commitment of the petitioner under section; 302/34, P. P. C:. does show that a prima facie case exists against him, and, therefore, it is difficult to hold that there are no reasonable grounds for believing that the accused is guilty of an offence punishable with death or transportation. The learned counsel for the petitioner has argued before us, by reference to the Privy Council decision in Mahboob Shah's case ( A I R 1945 P C 118 ) and the Federal Court's decision in Sardar All v. The State ( P L D 1956 F C 421 ) that the petitioner may have had the same or similar intention with his co-accused to rescue their cattle, but he did not share the common intention of Muhammad Ashraf, accused, in killing the deceased persons.

7. As rightly pointed out by the learned Chief Justice in the impugned order, it is not possible to determine this point one way or the other without a full appraisal of the evidence that has been led or may be led, and the Courts should not be invited to do that, as it would lead to pre-judging the material issues in the A case, while deciding the bail application. Such an attempt before the higher Courts, in particular, is wholly undesirable, as any expression of opinion by them on the merits of any point on substance in the case is bound to prejudice its ultimate decision.

8. Of late, we have witnessed a growing tendency of applications for bail and anticipatory bail being brought in the High Courts and the Supreme Court almost as a matter of routine. As repeatedly laid down by this Court, grant or refusal of bail in the cases is a matter of discretion with the primary Court, which is inquiring into or trying the case. This discretion has to be exercised in judicial manner, with due regard to the circumstances of each case, without any propensity to unnecessarily jeopardize the liberties of the people who are accuse of criminal offences. For offences punishable with death or transportation, this discretion is subject to the limitation that bail is not to be allowed to an accused person, if it is shown that there are reasonable grounds to believe that he has committed such an offence. In order to a whether reasonable grounds exist or do not exist the Courts do not have to probe into a merits of the case. They have only to look at the materia paced before them by the prosecution, to see whether some tangible evidence is available against the accused, which, if left unrebutted, may lead to the inference of guilt. Reasonable grounds are not to be confused with mere allegations or suspicions nor with tested and proved evidence which the law requires for a person's conviction for an offence.

9. The decision of this Court in Muhammad Shafiq's case, referred to by the learned Chief Justice in his order under challenge, does not foreclose the question of grant of bail to an accused person after his commitment for trial under section 210,1 Cr. P. C. Under section 220 of the Code, the commitment of an accused person, during or until the trial, is subject to the provisions of bail contained in the Code, which means that where, even at the time of commitment, it appears that any of the provisions of section 497 are attracted to allow bail to the accused, he need not be committed in custody to stand his trial. One patent instance, for example, would be where an accused may c, be found to be entitled to the benefit of proviso to subsection (1) of section 4 97 on the ground of tenderness of age , womanhood, sickness or infirmity. Another would be where in terms of subsection (2) of section 497, the Inquiry Magistrate finds that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but commits him nonethe less for trial, because there are sufficient grounds for further inquiry into his case. Pending such a further inquiry into his guilt, the accused shall be released on bail.

10. As held in Muhammad Shafiq's case, under section 210 of the Code, a Magistrate, after taking evidence and examining the accused, has to be satisfied that there are sufficient grounds for committing the accused for trial. To arrive at this state of mind, ordinarily he has, of necessity, to go beyond the stage of mere belief as to the existence of reasonable grounds and has to be satisfied that a prima facie case has been made out against the accused, and when a prima facie case has been made out, it cannot be said that in spite of it, there are no reasonable grounds for believing the accused to be guilty. It is however, open to an accused person to pray for his bail even a after its commitment by showing that his commitment, by showing that his commitment has not been made to rest on any reasonable grounds, and that the Committing Magistrate, instead of applying his mind to the case to reach a conclusion that a prima facie case has been made out, has merely transmitted the allegations of the prosecution, with no tangible evidence to support them, for trial by the Sessions Court. In such an event, apart from applying for his bail, the accused can ask for the quashment of such a commitment. In a situation like this, in 0 order to justify the continued detention of the accused in prison, it would be for the higher Courts to see whether the commitment order does disclose that satisfaction of mind on the part of the Committing Magistrate, which is necessary for committing an accused person for trial on the basis that a prima facie case for an offence punishable with death or transportation has been made out against him.

11. In the present case, we do not see any valid ground for interference in the orders of the Courts below. The petition is dismissed.

12. K.B.A. Leave refused.