Mst. BASHIRAN BIBI vs NISAR AHMAD KHAN and others

1. ' GHULAM MUJADDID, J.--Mst. Bashiran Bibi wife of Ali Muhammad, resident of Chak No,105/7-R, Sahiwal, who lodged report on 28-1-1988 challenged the order of the Lahore High Court, Multan Bench, dated 28-6-1988 whereby respondents Nisar Ahmad Khan, Muhammad Akram, Muhammad Siddique, Sajjad Hussain, Muzammil Hussain, Muhammad Shafi, Ahmad Ali and Khadim Hussain were released on bail. On 10-8-1988 leave was granted by this Court.

2. ' The connected petition is also by her but that is still at leave stage. In this she has impugned the order of the Lahore High Court Multan Bench dated 1-2-1989 passed in Criminal Miscellaneous No,1070-CB/88 whereby her application for cancellation of bail allowed to Ghulam Mohy-ud-Din and Shabbir Hussain was dismissed.

3. ' The third petition is by the accused who had been taken into custody by order dated 10-8-1988 of this Court. They pray that they be admitted to bail.

4. ' These matters are being decided by this judgment.

5. ' Mst. Bashiran lodged report at 4-30 p.m. At Police Station Harappa District Sahiwal on the date already mentioned above. This pertained to what had happened to her a day before.

6. ' On 27-1-1988, she along with her son Irshadul Haq was sitting in her house whereas her husband Ali Muhammad had gone to the fields.

7. ' All of a sudden, Nisar Ahmad, Muhammad Akram, Muhammad Siddique, Sajjad Ahmad armed with Sotas; Muzammil with pistol trespassed into her house. At that time Mst. Bashiran was busy cooking.

8. ' Muhammad Siddique caught had of her by her hair and told that her son Ehsanul Haq had insulted his daughter.

9. ' All the accused then dragged her out of her house in the street where Muhammad Shafi, Ahmad Ali and Khadim Hussain were standing. All of them caught hold of her and took her to the Baithak of Shabbir Hussain. Ghulam Mohyuddin son of Ghulam Farid resident of the same village was also present.

10. ' There Shabbir Hussain and Ghulam Mohyuddin tore her clothes and she was stripped. She was then ordered to dance. Bashiran beseached for mercy. Instead she was beaten. She was told that she had to give a naked performane otherwise she would not be spared. Then she was taken to the Bazar with not a stitch on. Her son Irshadul Haq raised hue and cry. Abdul Sattar, Muhammad Sarwar, Nazir Ahmad and All Muhammad her husband came there. They requested the accused not to treat a Muslim lady in such like manner. The accused threatened that if anybody dared to report the matter to the police, he would not be left alive.

11. ' Mst. Bashiran was left in that condition. Her husband gave her a sheet with which she covered herself and went home.

12. ' The motive for the incident was that on 26-1-1988 Mohammad Siddique's daughter was instrumental in letting her goats into the fodder belonging to Bashiran. Bashiran's son Ehsanul Haq had stopped her from doing so. Mohamamd Siddique felt offended. The accused party acted in retaliation.

13. ' Before discussing the contentions of the learned counsel in the three matters, we would first of all like to dispose of the petition for leave to appeal by Mst. Bashiran.

14. ' Learned counsel did not press this petition against Shabbir Hussain. So far as respondent Ghulam Mohyuddin is concerned, he was placed in columen No, 2 by the police. On this ground as well as other relevant facts pertaining to his case, we don't think that the bail allowed to him is to be cancelled. Hence Crl. Petition No, 60/89 by Mst. Bashiran is dismissed.

15. ' Now we take up the appeal of Mst. Bashiran. Ch. Khalil-ur-Rehman, learned counsel for the appellant, took us through the impugned order; referred to the F.I.R. And the medico-legal report of the first informant.

16. ' He submitted that the discretion exercised by the learned Judge was neither in accordance with law nor the principles laid down by this Court.

17. ' Learned counsel submitted that the offence of which the respondents have been charged was punishable with death. He contended that the learned Judge misconstrued section 497 Cr.P.C.

18. ' Learned counsel submitted that the sole reason which prevailed with the learned Judge was, the question as to the guilt or otherwise of the petitioners requires further inquiry".

19. ' It was argued that before extending the concession to the accused in a non-bailable offence punishable with death, it was necessary to examine the entire subsection (2) to section 497 Cr.P.C.

20. Keeping in view the allegations and other relevant facts like the medico-legal report in the instant case. In support of this learned counsel relied on the case of Hafiz Khuda Bakhsh and another v. The State (PLD 1988 SC 413) and Arbab Ali v. Khamiso and others (1985 SCM R 195).

21. ' Raja Mohammad Anwar, learned counsel for the respondents, contended that the appeal merits dismissal because this Court hardly interferes in the discretion exercised by the High Court in such like matters. According to the learned counsel, the High Court considered all the pros and cons of the case and then thought it fit to release the accused on bail. In support of this he relied on the case of Shahid Arshad v. Muhamamd Naqi Butt and 2 others (1976 SCM R 360) especially on the following observation:-- "In these circumstances although we are not happy about the order passed by the learned Single Judge of the High Court, we do not think it advisable to interfere with his order at this stage. If at any time any one of the said two respondents misuses the privilege of bail it will be open to the petitioner to approach the High Court for cancellation of bail."

22. ' Learned counsel laid great stress on the fact that the appellant was not even entitled to the indulgence by this Court as she concealed some very important facts. Learned counsel submitted that had these facts been brought to the notice of this Court the leave would not have been granted. He relied on the dictum of this Court in the case of Shahadat Ali v. Mubarik Shah and another (PLD 1986 SC 347) where it was observed as under:- "After hearing the learned counsel for the appellant and the respondents, we consider that respondent No,1 has been guilty of suppression of material facts for which no plausible explanation is forthcoming. Such a misrepresentation or suppression is likely to result in grave miscarriage of justice apart from its being open to great abuse by the parties. A person indulging in it cannot be allowed to reap its benefits or to enjoy its results."

23. ' It was next contended that the parties specially the complainant's husband voluntarily chose to get matter decided by oath on Holy qur'an. The accused-respondents accepted this offer. They swore about their innocence and that the incident was false. Thereafter neither the appellant nor her husband were left with any grievance.

24. ' Learned' counsel submitted that number of Advocates filed affidavits about the innocence of the accused.

25. ' Ch.Khalil-ur-Rehman, learned counsel for the appellant made statement at the Bar that nothing was concealed from this Court at leave stage; all the relevant facts on record were brought to the notice of this Court and it was after that the leave was granted.

26. ' We have no reason to doubt the statement at Bar of the Senior Advocate of this Court.

27. ' It is correct that this Court is reluctant to interfere in bail and similar other matters where exercise of judicial discretion is concerned but in exceptional cases where the interest of justice demands and it is evident that either a provision of law has been misconstrued or wrongly applied or the decision is contrary to the principles laid down by this Court as well as those governing the safe administration of criminal justice then it is the Constitutional obligation of this Court to set the matter right.

28. ' After hearing learned counsel for the parties as well as the Additional Advocate-General, we are of the view that subsection (2) to section 497 Cr.P.C. Has not been properly appreciated by the learned Judge.

29. ' In the case of Arbab All v. Khamiso and others (supra), it was observed:-- "There are certain other features also in this case which have not been attended in the High Court before giving a verdict that it was a case of "further inquiry". It needs to be clarified that bail can be allowed (in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 497) under subsection (2) of section 497, Cr.P.C. When there are sufficient grounds for further inquiry into the guilt of the accused but only on the condition when the Police Officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused had committed a non-bailable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry. This aspect of the relevant law has also not been brought to the notice of the learned Judge of the High Court."

30. ' It is, therefore, obvious that the expression, "further inquiry" is not to be taken lightly nor is to be extended unnecessarily.

31. ' The material before the High Court while considering the question of bail was the first information report, nature of the offence, the medico-legal report as well as the defence version.

32. ' The learned Judge in his order dated 1-2-1989 referred to certain proceedings where an offer was made to swear about the innocence of the accused on Holy Qur'an which was accepted by the accused. There is also reference of the affidavits of certain Advocates on behalf of the accused.

33. ' Nevertheless, the learned Judge lost sight of the fact as to whether the procedure of swearing on Holy Qur'an was applicable in criminal proceedings.

34. ' Article 163 of Qanun-e-Shahadat is to the following effect:- "Acceptance or denial of claim on oath:--

(1) When the plaintiff takes oath in support of his. Claim, the Court shall, on the application of the plaintiff, call upon the defendant to deny the claim on oath.

(2) The Court may pass such orders as to costs and other matters as it may deem fit.

(3) Nothing in this Article applies to laws relating to the enforcement of Hudood or other criminal cases."

35. ' It is, therefore, obvious that oath proceedings in the instant case were not warranted by law. This position is conceded by the learned Additional Advocate-General.

36. ' According to the order dated 1-2-1989, it was the complainant's husband and the Advocate who suggested taking of the oath. There is no mention in the order as to whether Mst. Bashiran was also party to that.

37. ' There could be lost of considerations for the husband of the complainant to make such an offer.

38. ' The sanctity of the Holy Qur'an is such that it cannot be brought in such like matters depending upon the convenience or whim of a party.

39. ' We wish to observe that the High Court was not right to countenance, when seized of only a bail application, the procedure whereby one of the accused was permitted to take oath in a mosque with regard to the guilt or innocence of himself and the other accused persons.

40. ' Moral standards as they are these days the approval of such a procedure by the High Court would throw the entire administration of criminal justice into disarray.

41. ' Apart from that, the said rocedure was likely to prejudice the trial itself which was to be held by a Court subordinate to the High Court. We would, therefore, add that the trial Court should entirely ignore the proceedings that took place in the High Court and proceed to determine the guilt or innocence of the persons in the light of the evidence recorded by it.

42. ' The mere fact that certain Advocates filed affidavits would not attract the expression "further inquiry" nor would it amount to two versions. In a case like this it should be left to the trial Court to determine the evidentiary value of such evidence.

43. ' The offence of which the accused-respondents have been charged is non-bailable, punishable with death. There is no mention in the impugned order of the medico-legal report of Mst. Bashiran according to which she had seven injuries on her person which prima facie lends support to the version of the appellant as disclosed in the first information report.

44. ' For the foregoing reasons, we are of the view that the respondents were not entitled to the concession of bail. The impugned order is set aside and the appeal is allowed.

45. ' The petition filed by the petitioners for bail is hereby dismissed.