MUHAMMAD RAHIM and anothers vs BAITA GUL and anothers
This matter arises from a petition for leave to appeal against the order of the High Court cancelling the post-arrest bail granted to the petitioners by the Sessions Judge in a triple murder case. The core legal question concerns the propriety of the High Court's interference with the discretion exercised by the Sessions Judge in granting bail, particularly where two conflicting versions of the incident exist and the case rests heavily on a retracted first information report and a subsequent statement under section 164 of the Code of Criminal Procedure. The Supreme Court held that the High Court erred in cancelling the bail as the Sessions Judge had exercised discretion based on salient facts, including the absence of direct eyewitnesses connecting the petitioners and the existence of material calling for further inquiry. The appeal was allowed and the petitioners were admitted to bail, establishing that appellate interference with bail orders requires a showing of arbitrary discretion or legal illegality.
- Whether the High Court can interfere with a bail order passed by a Sessions Judge without showing that discretion was exercised arbitrarily or in violation of legal principles?
- Does a retracted statement under section 164 of the Code of Criminal Procedure 1898 constitute sufficient ground for the cancellation of bail?
- When does a criminal case fall within the scope of further inquiry under the law of bail?
- Section 164, Code of Criminal Procedure 1898
ORDER
' SALEEM AKHTAR, J.---The petitioners seek leave to appeal against the order of the learned Judge in Chamber of the High Court whereby bail granted to them by the learned Sessions Judge was cancelled.
2. One Tariq Nawaz, a boy of 16/17 years, lodged a report at about 2-45 a.m. Alleging that his brother-in-law Umar Nawaz, an army personnel, had come from Peshawar on a night-pass and after staying for some time with him went to his house. When he entered his house at about 00-30 hours he saw in his room Noor Wall Khan and Habibullah Khan in objectionable position present with his wife Mst. Sartaj Begum, the sister of the complainant. Umar Nawaz then locked all the three persons inside the room and returned to the house of the complainant, took a D.B. Shotgun and killed all the three persons in the room. The complainant also produced the shotgun before the police. Thereafter on 17-2-1993 his statement under section 164, Cr.P.C. Was recorded in which he disowned the F.I.R. And stated that the murder was committed by his uncle Haji Muhammad Rahim and a relative Nabi Khan, but they had forced him to lodge the F.I.R. Against Umar Nawaz. The learned Sessions Judge granted bail to the petitioners on the ground that the Investigating Officer could not examine anyone as eye-witness of the incident and further that admittedly Noor Wali and Habibullah Khan were inside the residential Kotha of deceased Mst. Sartaj Begum. He further noted that three dead bodies were recovered from inside the residential Kotha and the vaginal swa bs of the female victim taken by the doctor prima facie confirmed, based on chemical analysis report that recourse to firing was taken when the three victims were engaged in immoral act. He thereafter proceeded to observe that this incident must have provoked the petitioners who were closely related to the female victim. The learned Judge in Chambers however took the view that the learned Sessions Judge had nowhere recorded that the case against the accused respondents needs further inquiry and that the accused had remained absconder after the occurrence for quite some time. Mere reference was made to the argument that the petitioners had made an extra- judicial confession before the complainant, who is their nephew. The learned Judge therefore concluded that there are reasonable grounds to believe that the accused are guilty of an offence punishable with death or imprisonment for life.
3. The learned counsel for the petitioners contended that there is no eyewitness nor any extra- judicial confession was made by the petitioners. So far ascendance is concerned, the learned counsel denied that they had absconded and stated that they were arrested after about one and a half months. There are two versions of the incident. Except the two male deceased, all persons involved are closely related to each other. Tariq Nawaz who is a young boy of 16 or 17 years, first made a complaint against his brother-in-law and then in his statement under section 164, Cr.P.C.
Resiled from it and accused the petitioners. In the absence of any direct evidence, except the statement of Tariq Nawaz on record, so far, there does not seem to be any other effective material to reasonably connect the petitioners with the offence. The petitioners have denied to have made any extra-judicial confession, therefore, in the absence of any other direct evidence against them, on the basis of such alleged confession bail cannot be cancelled. In view of these facts, it calls for further inquiry. The High Court has the discretion to grant, refuse or cancel the bail. However, where a Sessions Judge has granted bail, the High Court can interfere, if it is shown that the discretion has been exercised arbitrarily, in disregard of some of the salient facts or in violation of legal principles applicable to the case. No such illegality could be pointed out in the order of the learned Sessions Judge. The petition is converted into appeal and is allowed. The petitioners are admitted to bail on furnishing one surety each in the sum of Rs,50,000 and a personal bond each in the like amount to the satisfaction of the Sessions Judge, Karak.