THE STATE Versus ALTAF

1. CH. RAHIM DAD KHAN, C. J.‑ Ghulam Hussain, a retired Subedar, was shot dead on 3‑10‑1978, at about 8‑30 p.m., while returning home from the house of Shadam Khan where the villagers had assembled to meet the Tehsil dar who came there for settling thd dispute about the possession of Govern ment waste land in village Bhagiana. F. I. R. was lodged at Police Station, Rawalakot after 4 hours of the occurrence on the same night, at 1 a.m., by one Abdur Rahim wherein all three accused‑respondents as well as Muhammad Aziz were nominated. It is stated that occurrence was witnessed by Shah Muhammad, Tariq and Ashiq. On arrest the accused moved application for their release on bail which was rejected by the District Criminal Court on 8‑1‑1979 on the ground that offences under section 302, P. C. read with section 5 of the Islami Tazirati Act and section 34 being non‑bailable would not admit release of respondents on bail. All the accused then moved a further application before the High Court on the next day which was decided on 17‑2‑1979 whereby the present respondents accused of vicarious liability were released on bail holding that no overt act was attributed to them by Shah Muhammad, the eye‑witness,, in his statement recorded under section 164, Cr. P. C. while the application for release on bail submitted by Muhammad Aziz, the principal offender, who was allegedly responsible for the fatal shot, was rejected. State as well as Muhammad Aziz submitted separate applications for leave to appeal against the afore mentioned order passed by the High Court. The petition for leave to appeal submitted by Muhammad Aziz, the principal offender; was rejected. However, leave to appeal was granted in the present petition filed by the State to consi der 'whether the learned Single Judge in granting bail to Altaf, Khalid and Shamim accused had acted on sound principle of administration of justice particularly when their application had already been rejected by the District Criminal Court'.

2. Ch. Muhammad Taj, Advocate for the appellant, submits that the High Court was incorrect in holding that no overt act was proved. Mere presence of the accused (respondents), according to him, provided sufficient ground for drawing an inference to the effect that the accused participated in the crime. He also contends that it was not open to the High Court to undertake appraisal of evidence for accepting application of the present respondents when the trial Court had rejected their bail application on finding that non- bailable offence was, prima facie, made out against them. In support of his contention he placed reliance on a number of authorities ; such as Chiragh Din and others v. The State (PLD1967SC340), Abdul Aziz v. Bashir Ahmed (PLD 1966SC658), Muhammad Nazeer v. The State (1977 P Cr. L J 129) ; Ghulam Haider v. The State (P L D 1978 Lah. 670) ; Muhammad Saeed Ghulam Khan v. Abdul Ghafoor and others (P L D 1966 Lah. 86), Nisar Ahmed v. The .State (P L D 1971 S C 174), Rasool v. Ghulam Muhammad and 3 others (PLD 1971 SC 128), Muhammad Sharif v. Muhammad Ashraf and another (PLD 1971 SC316) and Nazar Muhammad v. The State and another (P L D 1978 S C 236). But none of these authorities has any bearing on the instant cases as in these cases there was pima facie evidence in support of the charge of vicarious liabilities which apparently is lacking in the instant case; so the bar was either refused or cancelled by superior Courts if already granted in these cases. Mere presence at the site of occurrence of a person who is a resident o A the vicinity or by chance happens to go there at the relevant time, would not, by itself, lead to an inference of involvement in the crime unless it is further shown that any act of incriminating nature such as actual participation in the crime by words or action was also done by such person.

3. The main point that requires determination in the instant case relates to the analysing of the evidence by the High Court when the trial Court had rejected the bail application and the extent to which it can go. None of the authorities cited at the Bar by the Advocate for the State controverts the proposition that the High Court, as Court of superior jurisdiction, has wide powers to grant bail to any person in any case whether there be an appeal or application under section 498, Cr. P. C. The only riders being that these n powers are to be exercised judiciously and not arbitrarily. The principles that govern the granting of bail are also well settled. The Court at the stage of bail, while considering the question of grant or refusal of bail, has t examine the effect of all the circumstances of the case. When the allegation are vague and are not substantiated, the refusal to enlarge the accused on bail may not be correct in peculiar circumstances of that case. In such cases the High Court can rectify the wrong by passing an order warranted by fact of that case. High Court, of course, is not called upon in such cases to conduct a preliminary trial of the case ; considering the probability of guilt or innocence of the accused ; it would be exceeding its function if it does so in any detail but 'it may incidentally have to analyse the weight of the evidence' against the accused 'as a necessary part of its proper function'. It would be incorrect to say that in case a Sessions Judge, in exercise of the power under section 498 of the Criminal Procedure Code, refuses to grant bail arbitrarily and without taking into consideration all the facts of a case the powers of the High Court would become restricted or neutralized so as not to consider even the weight of evidence independent of the appreciation made by Sessions Judge even if that may be palpably wrong. The powers of the High Court under section 498, Cr. P. C., are co‑extensive with the Sessions Judge. They are not taken away or neutralized when Sessions Judge refuses to enlarge a person on bail. The jurisdiction of the High Court is not affected on the ground that the Sessions Judge in exercise of its jurisdiction had already passed an order under section 498, Cr. P. C. The High Court has ample powers to grant or refuse bail if the Sessions Judge, by illegal of improper exercise of its discretion, rejects or accepts the application. Even otherwise the proceedings being judicial are revisable. The Sessions Judge being subordinate in the scheme of judicial hierarchy always acts subject to the superintendence and the control of the High Court. To hold otherwise would put the whole judicial system in jeopardy affecting adversely the cause of justice. Where therefore on consideration of the accumulated effect of ail the circumstances it appears that the Sessions Judge while refusing bail exercised his discretion in a capricious or arbitrary manner, the High Court, after careful consideration, can always let off such accused on ,bail.

4. It is a well‑settled law that in considering the question of grant or refusal of bail in the proceedings launched against an accused the Court has to keep in view‑

(a) the nature and gravity of the offence ;

(b) the nature of the evidence in support of the accusation ; and

(c) the severity of the punishment which has to be inflicted on convict.

5. In the instant case the victim on receiving a gunshot wound died ins tantaneously on the spot. The question of the gravity of the offence and severity of punishment to be inflicted, if proved; is not controverted. How ever, the controversy mainly centres round the question of the nature of the evidence in support of the accusation ; the extent to which while considering the bail application the Court can look into that evidence which is going to be led and the one that had already been adduced on behalf of the prosecution. No doubt at the stage of bail a Court is not required to conduct a 'prelimi nary trial' of the case and consider 'the probability of the accused being found guilty or innocent'. Nevertheless the Court can turn to the evidence with a view to examine the question of allowing or refusing of bail in the light of the principle governing the release or detention pending the prosecution The scrutiny of the evidence is done with the object to find out whether there are reasonable grounds for believing that the person is guilty of offence of which he is accused ; and whether the evidence discloses an offence punish able with death or imprisonment for life or any other‑ non‑bailable offence. Prima facie such conclusions which are relevant both under sections 497(1h and 497 (2), Criminal Procedure Code can validly be made only if the trial Court or the High Court applies its mind to the evidence that is available at the material stage. It is always considered to be in the interest of justice. to analyse tentatively such evidence which may be available at the stage of grant or refusal of the bail, to find if there are reasonable grounds for sup posing that an accused is guilty or not. This question of analysing of the evi dence at the stage of grant or refusal of bail came up before the Supreme Court of Pakistan in Khalid Javed Gilani v. The State (PLD 1978SC256) wherein after examining the authorities such as Khalid Saigol v. The State (PLD 1962SC49), Muhammad Aslam v. The State (PLD1967SC549), Nadara v. Jamait Khan and another (PLD 1968SC310), Ch. Abdul Malik v. The State (PLD1968SC349), Abdul Rashid v. The State (PLD1972SC295), Mst. Janat Bib! v. Sher Muhammad and another (1968 S C M R 795) and Iqbalur Rahman v. The State (P L D 1974 S C 83) it was observed at page 263 that "An elaborate sifting of evidence is an altogether different thing from the tentative sifting of evidence which the Court is compelled to resort to in a bail application, therefore, this judgment does not lend any support to Mr. Abdul Hamid Malik's submission that bail cannot be granted if the plea is pressed on ground which turns on the appreciation of evidence. Similarly, the rejection of the plea of alibi does not support learned council's submission, because of the mass of evidence produced by the prosecution and because the plea of alibi was not raised immediately". It was further observed at the same page that "similarly, although the petitioner's plea of alibi is supported by the affidavit of a disinterested person, once again we must emphasize that it would be open to the prosecution to prove that the evidence of Dr. M. A. 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 prosecution evidence was sacrosanct for the purpose of 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 com pelled 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 order ed the release of the appellant pending his trial by the Sessions Court."

6. Coming to the facts of the instant case, it would be said that the Sessions Judge in view of the fact that charge of murder entails capital punishment came to a fallacious finding that this fact by itself justifies rejection of the bail application, the High Court under the circumstances of the case was justified to release on bail the respondents (accused) charged of vicarious liability after tentative analysis of the prosecution evidence, namely, the statement of Shah Muhammad under section 164, Cr. P. C. who does not mention the presence of one of the respondents and attributes no overt act to the other two.

7. Respectfully agreeing with the above‑quoted authority we hold that as there was misreading of the evidence by the District Criminal Court the high Court was justified to accept the bail application after making provisional and release the respondents. However, there is possibility that the trial Court might not be influenced by the remarks of the High Court to the effect : "What really worries me in such applications is that there is, no doubt, a tendency in our country, also to implicate innocent relatives of an offender. The tendency of the Police Department from olden days, is that if somebody's name appears as an accused in the F. I. R., they think it is necessary to rope him in, lest the F. I. R. is disbelieved and the whole case is destroyed. This is a wrong tendency because the duty of all of us is not to support the falsehood but find out the truth", we direct that these remarks, while appreciating the evidence in the present case, may be ignored. The trial Court shall be at liberty to examine and appreciate evidence for itself independent of these observations.

8. Since there is nothing, as discussed above, to show that the High Court has exercised its discretion without proper care so far the present respondents are concerned ; we would not, therefore, interfere in bail orders. Besides, as substantial evidence, by now has been recorded by the trial Court ; so the District Criminal Court is in better position to consider and decide the question of the cancellation of the bail if thought expedient in the interest of justice.

9. The appeal in the circumstances of the instant case is dismissed.

10. Appeal dismissed.