By this order, I propose to dispose of two applications, one submitted by Akbar Ali Khan for the cancellation of bail allowed to Sahib Noor respondent No. 1 and registered as Criminal Miscellaneous No. 762/79, and the other filed on behalf of Shakim Noor for the grant of bail and registered as Criminal Miscellaneous No. 880/79. The facts out of which these applications have arisen, shortly stated, are these:-- On 17June, 1979, Anwar Khan son of Speia Khan, a resident of Thall, while in injured condition, was carried to Police Station, Thall, where at 6-40 p.m. He lodged First Information Report stating therein that at 6.00 p.m. The same day, he was present at Qayyum Medical Store where in the meanwhile, Shakim Noor son of Mula Noor appeared there and fired three/four shots, one after the other, hitting him on the left shoulder and on the left side of his belly. On the basis of this report, a case under section 307, Pakistan Penal Code, was registered against Shakim Noor. The injured succumbed to his injuries in the hospital, the same day, as a result of which the offence was altered to one under, sec--tion 302, Pakistan Penal Code.
Shakim Noor was apprehended by the Police at 9.30 p.m. On 17June, 1979. At that time, he made a cross report to the Police charging Anwar Khan and others for firing at him. On the basis of this report, a case under section 307/34, Pakistan Penal Code, was registered.
On the 24th of June, 1979, Mr. Ihsan Ali, Magistrate First Class. Hangu, recorded statement of one Mohammad Rashid under section 164, Criminal Procedure Code. The statement, in essence, that in his presence, Sahib Noor accused fired two shots at Anwar Khan deceased hitting him on his chest whereafter Shakim Noor fired three shots which hit Anwar Khan on his back, and that Shakim Noorth th stabbed him with a dagger below his neck. It is said that the two assailants then made good their escape.
2. The two accused persons, namely, Sahib Noor and Shakim Noor, were arrested by the Police. An application for bail on their behalf was moved which was rejected by the Sub-Divisional Magistrate, Hangu, by his order dated 28July, 1979. The matter was then taken to the Sessions Court. Upon consideration of the material made available to him, the Sessions Judge, Kohat, by his order dated 13August, 1979, allowed bail to Sahib Noor accused in the sum of Rs. 20,000 with two sureties in the like amount while he declined to grant bail to Shakim Noor. Aggri--eved by this order, Akbar Ali has moved this Court for the cancellation of bail allowed to Sahib Noor while another application has been submitted on behalf of Shakim Noor for the grant of bail.
3. S. Masoom Shah Advocate, the learned counsel for the accused, took me through the record of the case and contended that the occurrence did not take place in the matter given by Anwar Khan in the First Infor--mation Report which is now being regarded us a dying declaration and that the incident seems to have taken place in the matter suggested by Shakim Noor in the report made by him to the police at the time of his arrest. He maintained that the statement made by Rashid Mohammad involving both the accused persons for having caused injuries to Anwar Khan deceased does not ring true and that at any rate, his statement cannot be accepted as a gospel truth because of his relationship with the deceased. Repelling these contentions, the learned counsel for Akbar Ali petitioner urged that notwithstanding the fact that the dying man, namely, Anwar Khan, did not charge Sahib Noor in the dying declaration for having caused injuries to him, the prosecution is not prevented from proving that he was also one of the assailants. -He added further that the statement of Rashid Mohammad in this regard was clear which suggests that both the accused persons were responsible for causing the death of Anwar Khan. To support his submission on the legal aspect of the matter, he referred to, and relied on the decisions in Ghulam Hussain v: Zainullah etc. (PLD 1961 SC 230), Nekam Gul and 2 others v. The State (PLD 1971 Pesh.
32), State v. Mohammad Hassan etc. (PLD 1977 Kar. 554) and Manzoor Hussain etc. v. The State (1979 P Cr. L J 593).
4. The learned Additional Advocate-General representing the State came forward with his own independent submission and supported the impugned order saying that in the circumstances of the case, it was wholly justified.
5. It is not denied that section 497 of the Criminal Procedure Code which governs the grant of bail in cases of non-baiLahle offences gives a discretion to the Courts to order release on bail even in cases of non---baiLahle offences. This discretion is, however, controlled by two important restrictions:-
(1) Where the prosecution can satisfy the Court that there are reason--able grounds for believing that the accused is guilty of a serious offence which is punishable with death or transportation for life, it shall refuse bail.
(2) On the other hand where the defence can satisfy the Court that there are no reasonable grounds for believing that the accused has committed any non-baiLahle offence, or where after trial and before judgment there are reasonable grounds for believing that he is not guilty, the Court has no option but shall grant bail.
Subject to these two restrictions, the Court has unfettered discretion to grant bail. As in the case of the exercise of all discretion it has not to be exercised arbitrarily but judicially having regard to the circumstances of the case. In the present case, Anwar Khan himself made report to the Police at the Police Station soon after the occurrence which is being regarded as a dying declaration. In this statement, he said that he had been fired at, and hit, by Shakim Noor. Therein he did not mention the presence of Sahib Noor accused at the spot at the time of occurrence. It can hardly be doubted that a dying declaration is a valuable piece of evidence and if it is found to be genuineth th and true, it can by itself form a satisfactory basis for conviction. The learned counsel for the accused, in order to justify the grant of bail, wants me to hold that the dying man had indulged in telling lies with regard to the manner in which the occur--occurrence took place and that the correct version of the occurrence was the one contained in the report lodged by Shakim Noor with the Police, while the learned counsel for Akbar Ali petitioner desires me to accept the view-point that the dying declaration was incomplete, and that the complete and correct version of the occurrence has been furnished by Rashid Mohammad witness. All these points, it may be stated, relate to the merits of the case and their determination at this stage would of necessity result in the expression of opinion on the merits of the case itself. It is an elementary principle of Criminal Law that in bail matters, the Courts should, as far as possible, avoid the expression of opinion on the merits of the case. I would not, therefore enter into the discussions of the points referred to above and will leave them for determination by the trial Court at the time of the decision of the case. Till a decision is taken by the trial Court with regard to the weight, which is to be attached to the dying declaration in question, it ought to be treated as a valuable piece of evidence because there is a general presumption in regard to dying declara--tions that they usually speak the truth who breathe their words in paid. In this state of things, it may well be said that in view of the dying declaration there can be no doubt that there are reasonable grounds for believing that Shakim Noor accused is guilty of the offence charged with while there are sufficient grounds for further inquiry into the guilt of Sahib Noor accused. This being the position the former was not entitled to bail while the latter was entitled to, and was rightly allowed, bail.
6. The authorities referred to, and relied upon, by the learned counsel for Akbar Ali petitioner do not appear to me to bear the slightest resem--blance to the facts of the present case. Those authorities proceeded on their own facts and are clearly distinguishable. The three cases reported as PLD 1961 Supreme Court 230, 1971 P Cr. L J 593, were crimi--nal appeals decided on merits by the Courts concerned. Since the merits of the cases had to be decided, and had actually been decided, in those cases, they can have no relevancy to the present case which involves a bail matter, pure and simple, and in which the merits of the case cannot be gone into. The case reported as PLD 1977 Kar. 554, no doubt, related to a bail matter, but the facts of that case being entirely different, having no resemblance with the facts of the case before me, the rule laid down there cannot be stretched to cover the present case.
7. The position, which emerges from the discussions given above, is that in passing the impugned order, the Sessions Judge exercised the discretion properly. The result, therefore, is that both the applications fail and are accordingly dismissed.