MUHAMMAD NAWAZ Versus THE STATE
ORDER
This is an application for bail made on behalf of applicant Muhammad Nawaz who is detained in Crime No.282/88, Clifton Police Station, under section 302/34, P.P.C. The bail application made on his behalf was rejected earlier by learned VIth Additional Sessions Judge (South), Karachi, vide order, dated 2-4-1992.
2. Deceased Mst. Bilquees alias Gullan had eloped with deceased Muhammad Khan and they had entered into a marriage bond against the wishes of their elders. It is alleged that on 3-8-1988 between 7-45 p.m. to 8-30 p.m. the present applicant, an employee of Pakistan Air Force alongwith co accused Sukhru Khan committed murder of both Mst. Bilquees alias Gullan and Muhammad Khan at different places to avenge their family honour.
3. I have heard Mr. Rasheed A. Rizvi, learned counsel for applicant and Mr. Muhammad Zubair Qureshy, learned counsel for State, who has conceded to the grant of bail to applicant mainly on the ground that the parties have compromised, and such applications made for compounding of the offence are pending decision in the trial Court. I have `also heard Mr. Shahadat Awan, learned counsel for complainant who too has raised no objection to the grant of bail to the applicant by stating that the aggrieved persons have pardoned him.
4. The bail application is pressed on two-fold grounds, firstly, on the plea of alibi and secondly for the reason that the parties have compromised out of Court and consequently the applicant is entitled to the grant of bail.
5. It is contended on behalf of the applicant that the applicant who is an employee of Pakistan Air Force had not left Malir Cantt area where he resided during the days when this incident took place. Reliance is placed upon report submitted by Squadron Leader dated 22-12-1991 which is relevant and for the sake of convenience is reproduced below:--
"This has reference to the Court's order, dated 16th December, 1991, bearing F.I.R. No.282/88 under section 302/34, P.P.C. Police Station Clifton, Karachi in connection with Sessions Case No.100/89. The report is submitted as follows:--
It is certified that SA.C. Muhammad Nawaz Pak/476523 Supp. Asstt. son of Muhammad Noor is a bona fide member of 'Pakistan Air Force and on 3rd August, 1988 he was employed at No.105 AED, PAF Malir Cantt.
That above-named airman was on his duty on 3rd August, 1988 from 07-00 a.m. till 14-00 p.m.
On scrutiny of records kept at Guard Room, PAF Base, Malir it is revealed that SAC. Muhammad Nawaz Pak/476523 Supp. Asstt. did not go out of Malir on 3rd August, 1988."
6. The plea of alibi is also supported by Capt. Siddiq Joya who was examined as a Court witness under section 540, Cr.P.C. and who testified as follows:--
"To Court:
I have brought the record in respect of accused Muhammad Nawaz who was SA.C. in PAY. Malir Cantt. I have brought the register namely book in and out register. On 3-8-1988 accused Muhammad Nawaz was on duty in PAY. Malir Cantt. According to our register at 7-30 a.m. he entered in PAY. Base to attend his duty to maintain the record of explosive building inside the PAY. Base. He entered in the premises vide entry No.l of Key Register dated 3-8-1988. He was residing in Malir Cantt premises. I have also brought book in and out register. According to this book he has never left the Malir Cantt. premises on 3-8-1988, he was inside the premises. On this date if he had left the premises there must be entry in this in and out register. I produce photo copy attested by me of both the registers.
Cross to A.P.P.
I cannot say when accused had entered in the PAY. Malir Cantt and when he came out from the PAY. Base Malir Cantt.
Cross to Rashid Rizvi D.C. for accused:
It is correct to suggest that no person can enter or leave the premises before entering in this book in and out register:
7. Mr. Rasheed A. Rizvi, learned counsel for applicant has placed reliance upon the cases of Akram Khan v. The State and another reported in 1978 S C M R 242 and Khalid Javed Gillan v. The State reported in P L D 1978 SC 256, in an attempt to show that the Court can assess the material placed before it for the purpose of holding, although tentatively, the plea of alibi raised by the accused. In the first cited judgment bail was granted to accused by the High Court mainly on the ground that the accused who was in Defence Forces was found present in his unit at the relevant time. The aggrieved person went before the Supreme Court but his petition was dismissed maintaining the order of High Court. In the second citation while examining the scope of assessment of evidence at the stage of bail it was observed as follows:--
"However, as a Court cannot, in bail applications, resort to an elaborate sifting of evidence, it has to go by its assessment of the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case therefore, whilst the prosecution may be able to prove that Muhammad Azeem was a man of unimpeachable character, for the purpose of the bail application, the hostile relationship between the parties is a circumstance not irrelevant to the Court's assessment of the material produced before it. Similarly, although the 'petitioner's plea of alibi is supported by the affidavit of a distinterested person, once again we must emphasize that it would be open to the prosecution to prove that the evidence of Dr. MA. Aziz is not fit to be relied upon. But for the purpose of the bail application, we cannot ignore the fact that a medical practitioner of high repute, who does not have any ostensible connection with the petitioner, supports the petitioner's case. How then did the High Court refuse bail? The learned Judge has very properly refrained from giving a detailed order, but from the tenor of his order, it would appear that he assumed that prosecution evidence was sacrosanct for the purpose of a bail application. With respect, this is not the correct view of the law, therefore, although this Court is always very reluctant to interfere in bail orders, a principle which we would reiterate, we are compelled to interfere in the instant case, because the impugned order is based on a misreading of section 497, Cr.P.C. Accordingly, after hearing both the learned counsel, we converted the petition into an appeal, allowed it and ordered the release of the appellant pending his trial by the Sessions Court."
8. Bearing in mind the test laid down by the Supreme Court, I am of the view that the case against the applicant needs further inquiry within the meanings of subsection (2) of section 497, Cr.P.C.
9. Quite admittedly the parties have also compromised and such applications duly supported by affidavits of respective legal heirs of both the deceased persons are placed on record. These applications could not be accepted as all the legal heirs who are residents of the Province Punjab could not appear before the Court. At least it was a reason given by Mr. Shahadat Awan, learned counsel who is representing the complainant- The offence under section 302, P.P.C. has now become compoundable and consequently the ground that the parties have compromised out of the Court is by itself sufficient to extend the concession of bail to accused persons involved in such cases who were awaiting this decision mainly because of certain legal obstacles. Mr. Rasheed A. Rizvi, learned counsel for applicant has placed reliance upon my own order, dated 9-4-1992 passed in Criminal Bail Application No.247 of 1992 in the following words:--
Admittedly the parties had presented compromise application under section 345, Cr.P.C., before-the learned Ist Additional Sessions Judge (South), Karachi, but the same was not accepted for the simple reason that the sisters of deceased Muhammad Saleem had not appeared before the Court but they had authorised their elder brother Muhammad Iqbal to enter into compromise on their behalf also. Section 305, P.P.C. as amended, is however, clear on this point and the Wali in case of a Qatl shall be the heirs of the victim, according to his personal law. However, without going into the merits of the case, I am of the view that since the parties have compromised and presented such application for compounding of the offence, the applicants are entitled to the grant of bail."
10. Having regard to the above factual and legal position, I am of the view that the applicant is entitled to grant of bail. Accordingly bail is allowed to him in sum of Rs.1,00,000 (Rs. One lac) with P.R. bond in the like amount to the satisfaction of the trial Court.
11. By a short order, dated 7-5-1992, I had granted bail to applicant and these are the reasons for the said order.
N.H.Q./M-1866/K Bail allowed.