1. Having been aggrieved by order of learned Sessions Judge, Campbell--pur releasing Ali Zaman accused-respondent (1) on bail in case for the offence of murder under section 302/34, P. P. C.
2. Gohar Rehman complainant in the case has preferred this application under subsection (5) of section 497, Cr. P. C. For the cancellation of bail of the respondent.
2. Briefly, the facts of the case are that Noor Ahmad deceased, father of the petitioner bad a dispute with his brother Bostan Khan who is also an accused in the case, over partition of land. On 28th of February, 1977 at about 5-00 p.m. The deceased and Bostan Khan accused had an altercation over the passage leading to the house of the deceased which led to exchange of hot words between them. The respondent and Muhammad Ayub who was married to a sister of the respondent armed with a hatchet and soil respectively, also arrived at the site. Bostan Khan allegedly incited them to do away with the deceased. The respondent struck the deceased in the forehead with blunt side of the hatchet in his band. Muhammad Ayub is alleged to have inflicted two injuries to the deceased in the frontal side of the head. The deceased fell down unconscious and was removed to the Civil Hospital, Hassan Abdal where he was examined at 8.30 p.m. And found to have four injuries in the region of left eye-brew. The occur--rence was reported to the police by the petitioner same day at 9-30 p.m. Dying statement of the deceased was recorded in the hospital on 5th of March, 1977 after he was declared by the doctor fit to make statement. The deceased confirmed the allegations made in the First Information Report that the respondent had dealt him an injury in the head with blunt side of the hatchet and Muhammad Ayub bad caused him two injuries in the head (forehead). The deceased passed away on 14th of March, 1977.
3. According to report of post-mortem examina--tion left parietal bone was fractured underneath injury No. 1 (a healing wound 3/4" x 1/6" bone deep just above left eye-brew, transversely) and frontal lobe of the brain was injured with collection of blood over it. The said injury was declared fatal in the ordinary course of nature. Muhammad Ayub who had allegedly caused a couple of injuries to the deceased was adjudged innocent during investigation and was shown as suspect in Column No. 2 of the final report under section 173, Cr. P. C. Bostan who was attributed lalkara was allowed bail by learned Sessions Judge on 4th of June, 1977.
4. On 7th August, 1977, Ali Zaman respondent also applied for bail which was rejected on 10th of September, 1977, by learned Sessions Judge with the order running into a couple of sentences "Arguments heard and record perused. The fatal injury has been attributed fo the petitioner who does not deserve bail. The application is rejected". The respondent renewed the application for bail on 21st of November, 1971, viz. After about two and a half months of the order rejecting his previous application. The application remained pending for about ten weeks and was accepted on 11th of February, 1978.
5. It was argued on the side of the petitioner that the respondent (1) was allowed bail in disregard of the provisions of law and plethora of decisions of superior Courts which gave solid guidelines for grant of bail in cases punishable with death/life imprisonment which fell within the ambit of prohibition enacted in subsection (1) of section 497, Cr. P. C. Learned Sessions Judge had prejudged merits of the prosecution case which was neither desirable nor permissible in law.
6. Learned Sessions Judge has also not stated any reasons in justification of the order.
7. The contentions are really indefeasible. Concisely, the arguments which had weighed with learned Sessions Judge in allowing the second application for release of the respondent on bail although there had been no charge in the circumstances of the case warranting a contrary order after two and a half months of the order rejecting the previous application of the respondent were that according to the witnesses and the deceased, the latter had suffered three injuries in the bead at the bands of the respondent and Muhammad Ayub while the deceased had four injuries on him including one in the forehead and an injury on the nose also. The question whether the respondent or Muhammad Ayub was responsible for the fatal injury to the deceased was yet to be determined.
8. The case was, therefore, of further inquiry. Learned Sessions Judge bad in keeping with uncanny habit of making a short shrift of applications for bail accepted these contentions with a cryptic remark that ---I find considerable force in the above contentions and, therefore, admit the petitioner to bail...".
9. To say the least one should feel unhappy over this perfunctory order. Law is settled that in cases of murder the normal rule is refusal to grant bail and on merits bail could be granted only in cases where there are no reasonable grounds for believing that the accused was guilty of charge. To determine if there existed such grounds attention must be confined to the First Information Report the statements of witnesses under section 161, medical evidence and recoveries if any. Court cannot evaluate the evidence and launch upon a preliminary trial/inquiry and prejudge merits of the case at the stage of bail. The questions if the deceased was given 3/4 blows in the head or forehead etc which of the two assailants had given the fatal blow and in case this could not be ascertained, and whether or not they both could be held guilty collectively had to be determined at the trial after proper appraisal of evidence.
10. The decision for release of an accused on bail or otherwise has to be arrived at by means of a judicial process. For grant of bail to the accused in cases punishable with death, there must be a finding that there were not reasonable grounds for believing that he was guilty of the charge, or he was entitled to the benefit of proviso to subsection (1) of section 497, Cr. P. C. Or there were sufficient reasons for further inquiry into hi guilt. Laconic orders with merely a facile remark that --- I. Find considerable force in the contention" could not be treated as a lawful order based on judicial process.
11. Learned Sessions Judge has reported that the case is likely to be fixed for trial during the first fortnight of February, 1979. In view of the judg--ment of Supreme Court in Shahid Arshad v.
12. Muhammad Naqi Butt (1979 S 4 M R 360I refrain from setting aside the order of learned Sessions Judge although it was exceptionable for more than one reason as indicated in the foregoing lines.
13. Order accordingly.
14. Learned Sessions Judge shall summon the accused for a date during the month of January, 1979 for preliminary proceedings so that summons are issued to the witnesses well in time for their evidence during the month of February, 1979.