SULTAN MUHAMMAD Versus STATE

ORDER

The above-captioned criminal petition for leave to appeal No. 3 of 1981 and criminal miscellaneous petition No. 3 of 1981 (bail application) pertain to the same order dated 4th February, 1981 passed by the High Court. As both the petition for leave to appeal and miscellaneous application arise out of the same order ; they are being disposed of by this single order.

2. The petition for leave to appeal has been moved to assail the judgment passed by a learned single Judge of the High Court on 4th February, 1981 whereby bail to the petitioners (in this petition), in a murder case, who still awaits trial before the District Criminal Court Kotli, was refused.

3. To understand the points involved the prosecution case, in brief, may be stated. On 25th April 1980 at about 5-30 p.m. Mohammad Amir, Sultan Mohammad (petitioners) alongwith Shaukat, Sher Alam and Mst. Channi reached a place where Shahpal Khan complainant, Karamat Khan, father of the complainant, and Ilyas Khan were at work in cutting the wheat crop and their cattle were grazing in a field nearby. The accused party asked the complainant party as to why they have let loose their cattle in their land. This allegation was repudiated by the complainant party saying that the cattle were grazing in their own field. Thereafter Sultan Mohammad accused, as the prosecution puts its case, commanded other accused to kill their enemy. Mohammad Amir petitioner then hurled a stone on the bead of Karamat Khan. Sultan Mohammad petitioner also flung a stone on the head of the deceased while other accused persons threw stones and attacked the complainant party. The occurrence is stated to have been witnessed by the complainant, Mohammad Ilyas-His brother and Ali Dad. Karamat Khan, after he was removed to his house, succumbed to head injuries.

4. All the accused were sent to face trial before the District Criminal Court, Kotli, for charges under section 5 of the Islamic Penal Laws Enforcement Act, 1974 (hereinafter to be referred as the Act). Shaukat and Mst. Channi, pending trial, were allowed bail by the District Criminal Court. Bail, however, was refused to the petitioners, inter alia, on tire grounds:-

(i) that it is yet to be resolved, on recording evidence, as to whether the alleged stones can be considered as weapon of offence or a substitute for such weapons as provided under section 4 of the Act; and

(ii) that it is yet to be determined as to whether injuries attributed--to the accused could be caused by the alleged stones or not.

5. The High Court disallowed the bail mainly on the grounds:-

(i) "that the point relating to stones in question needs a serious discussion in order to bold as to whether said stones could be consider ed as weapons for infliction of injuries on the person of the deceased, it is desirable that such discussion may be avoided at the stage of bail," and

(ii) "that it is also premature to determine as to whether the case of the accused-appellants fell within the purview of exception (4) of section 300, A. P. C. or not."

6. For the aforementioned reasons the learned Judge in the High Court, at bail stage, declined to express himself on merits of the case as it will, according to him, amount to prejudging the case. Hence this peti tion for leave to appeal.

7. It may be noted that murder, under section 4 of the Act, is defined to mean

If murder is committed with a thong which cannot be said to be a weapon of offence or its substitute; it is not intentional murder and is covered under section 6 of the Act under which sentence of 'Diyyat' is only permis sible.

8. To appreciate the points argued it will be useful to know the principles governing grant or refusal of bail in criminal matters. Bail, in non-bailable cases, is a matter within the discretion of the Court which is to be exercised with due care and caution on the facts and circumstances of each case. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to confine people in Jail merely on the allegation that they have committed offence punish able with death or transportation unless reasonable grounds appear to exist to disclose their complicity in such offences. No doubt, in offences punish able with death or transportation for life, bail is not justified if there exist reasonable grounds for believing that the person accused has committed such an offence. The onus, however, is on the prosecution to disclose those reasonable grounds and the Courts have to examine the data available in the case to find out whether such reasonable grounds exist to connect the accused persons with the crime alleged against them. To ascertain as to whether reasonable grounds exist to connect the accused with the crime charged, the report of the police, the nature and credentials of the evidence which the prosecution proposes to lead in the case and all other relevant circumstances surrounding the occurrence are to be looked into. The deter mination of the point as to whether bail can be allowed to a person accused of an offence punishable with death or transportation for life will depend on the facts of each case. No doubt, it is not for the Courts, at the stage of bail, to evaluate the evidence in minutest details but they are required to consider as to whether ; upon material on record, such grounds for belief exist or not. It is also law that in such cases if the Sessions Judge or the High Court forms an opinion that such reasonable grounds do not appear the prayer for bail may be allowed.

9. Whether reasonable grounds exist to connect the accused with the offence charged is a question which musts be judicially decided i.e. these should be tangible evidence, offered by the prosecutions on which, if not rebutted, the Court may come to the conclusion that the accused is guilty, The Court must apply its mind to the facts of the case and then decide whether or not the accused should be given freedom of bail pending the decision of the case. It is to be noted that where an application for bail is made in the initial stage (as the present case in) the prosecution is expected to satisfy the Court that there is a genuine prima facie case against the accused.

10. Considerations in granting bail, of course, in offences punishable with death or transportation for life are very much different from the considerations on which bail can be granted in other offences. In the former case it is necessary to look into the evidence to see as to whether a prima facie case exists for believing that a person is guilty of those offences. When the High Court grants or withholds bail in a case involv ing sentence of death or imprisonment for life; the order should give some intelligible indication that the matter was objectively looked into otherwise this Court will not be in a position to satisfy itself whether the order of the High Court is sound to be upheld or not:

11. Subsection (2) of section.497, Cr. P. C. makes it obligatory for the Courts to allow bail to an accused person in all kinds of non-bailable offences including those punishable with death or transportation for life where no reasonable grounds exist for believing that the accused has committed an offence and a further inquiry is warranted. Of course such an order is interlocutory in nature pending inquiry.

12. It is settled law that an accused is presumed to be innocent till the contrary is proved, therefore, the ultimate conviction and incarceration of a guilty person can redress the wrong caused by a mistake relief of interim bail granted to him but no satisfactory reparation can be afforded to an innocent man for his unjustific incarceration at any stage of the case if he is acquitted in the long run'.

13. While taking into account the aforementioned provisions of law in bail matters, it would be seen as to whether the argument, advanced at the bar, justify acceptance of this petition for leave to appeal. It has been argued by the learned counsel for the petitioners that:-

(i) when the learned single Judge of the High Court opined that it remains still to be decided as to whether `stone' is a weapon of offence or a valid substitute for such a weapon, it would be said that reasonable grounds were absent to say that the accused have committed an offence punishable with death or transportation for life and bail, under section 497 (2), Cr. P. C., was justified. Besides this uncertainty about the weapon of offence coupled with the fact as to whether in the circumstances of the case the petitioners intend ed to cause death of the deceased is a clear pointer to the fact that further inquiry is still required to adjudge as to whether the peti tioners are guilty of murder. The petitioner's case, therefore, falls under section 497 (2), Cr. P. C. and refusal of bail is an arbitrarily exercise of discretion and the learned single Judge in the High Court, in fact, in the circumstances of the case, has acted without jurisdic tion in refusing bail to the petitioners;

(ii) even for purpose of bail law .is not to be stretched, directly or indirectly, to favour of the prosecution (as to done in this case) and if any doubt arises (it is still to be decided as to whether `stone' is a weapon of offence) it must be resolved in favour of the accused even at bail stage;

(iii) the case against the petitioners does not rest on any reasonable ground and the learned single Judge in the High Court instead of applying his mind to the case erroneously refused bail merely on the ground that it is still to be determined as to whether 'stone' is a weapon of offence or its substitute ; and that it is still to be determined as to whether the case of the petitioners falls within the purview of section 4 of the Act or section 300, A. P. C.

(iv) the mere fact that the persons have been challaned in a murder case, by itself, does not afford a reasonable ground for believing that the person so challaned is guilty of the offence with which he has been charged but this aspect of the case escaped attention of the learned Judge in the High Court.

(v) while the prosecution must prove the guilt there is no such burden on accused to prove innocence and it is sufficient for him, even in bail matters, (as this case is) to raise doubt from the prosecution case itself as to his guilt;

(vi) in any premeditated attack (as this case is) the bail is a must because the petitioners are charged to have caused the death of the deceased with the stones which fact only attributes nothing beyond knowledge and the petitioners cannot be saddled with the respon sibility of the premeditated murder but the learned .fudge in the High Court failed to appreciate this aspect of the case ; and

(vii) the learned Judge in the High Court fell in error in saying that evidence cannot be gone into at the bail stage. It is necessary for the purpose of granting bail to look into the evidence, brought on record, to form a prima facie view as to whether there appear reasonable grounds for believing that such persons were guilty of the offences charged. If this could not be done the provisions of subsection (2) of section 497, Cr. P. C. would lose all its impor tance.

14. The learned counsel for the petitioners has relied mainly on the following authorities in support of his submissions:-

(1) P L D 1972 S C 81

(2) P L D 1978 S C (AJK) 83

(3) P L D 1972 S C 277

(4) P L D 1968 S C 310

(5) P L D 1961 Lah. 208

15. As against this the learned Advocate-General and Ch. Mohammad Sharif Tariq, the learned counsel for the complainant, conten ded.

(i) that normally the Supreme Court does not interfere with Discretion of the lower Courts in matter of grant or refusal of bail:

(ii) that stone is a weapon of offence ; .

(iii) that the facts of the cafe establish a case of murder against the petitioners; and

(iv) that it is beyond the province of the Supreme Court to interfere with the discretion exercised by the High Court.

They have placed reliance on the following law in support of their argument

(1) 1977 S C M R 27

(2) 1977 S C M R 52

(3) 1971 S C M R 51

(4) 1978 P Cr. L J 165

(5) 1968 S C M R 81

(6) 1970 S C M R 143

(7) 1969 S C M R 266

(8) 495, 498, 508

(9) 176, 179, 185, 244

(10) 139 Hadith 3309

(11) 758, 763

(12) 546, 551

(13) 422, 423, 427 Hadith 1109 to 1111 1120 and 1127

(14) 524 to 526

(15) 650, 655, Bab 1000, 102

(16) 377

(17) 180, 182, Sec. 519, 516 517, 518, 525

16. To me it is premature to say anything about the correctness of law enunciated in the case law referred to above by both the parties which can only be done (I have decided to allow this petition for leave to appeal) at the time of disposal of appeal. Besides, law enunciated in a case covers that case only and cannot be of universal application.

17. After giving due consideration to the arguments addressed at the bar. I am of the view that the above-raised points do constitute a prim facie case for acceptance of the petition for leave to appeal. Therefore, I accept the petition for leave to appeal to consider as to whether the High Court, in refusing bail to the petitioners, acted on sound principles of administration of criminal justice.

18. Since the petition for leave to appeal has been accepted, it will be but proper and in the interest of justice to allow bail to the petitioner pending disposal of the appeal. I, therefore, also accept Criminal Miscellaneous Petition No. 3 and admit the petitioners on ad interim bail on their executing personal-bonds of Rs. 75,000 each, with three sureties (in each case) in the like amount to the satisfaction of A. D. M. Kotli. The sureties will, be individually and jointly responsible to pay the amount of bonds if the petitioners misuse the trust reposed in them. The file, after completion, shall be placed before the Court.

As it is a murder case and the acceptance of the petition may not hamper the proceedings in the trial Court I direct that the trial Court shall proceed with the trial of the case and the file shall only be requisi tioned fifteen days prior to the date fixed for arguments.

Leave allowed.