Muhammad, Siddique, Muhammad Ashraf, Muhammad Riaz and Muhammad Ijaz, who were sent up along with one Pervaiz Ahmad under sections 302, 307 read with section 149 and section 148 of the Pakistan Penal Code for the murder of Muhammad Akram and attempted murder of Muhammad Ashraf of Gujranwala have applied for bail' under section 498 of the Criminal Procedure Code.
2. Briefly the facts of the case are, that on the first d-ay of May 1969, Saeed son of Muhammad Anwar, complainant, was standing in the lane when Muhammad Ijaz accused-petitioner passed by him. Steed laughed: Muhammad Ijaz felt annoyed arid gave him a slap- Steed slapped him in return. Muhammad Akram deceased came out of his house and abused Muhammad Ijaz, who also abused him in return. Muhammad Akram deceased then tried to catch hold of Muhammad Ijaz. He managed to run away to his house, and returned armed with a knife. He was then accompanied by his brother-in-law, Pervaiz Ahmad. They wanted to assault Muhammad Akram, but the latter was saved through the intervention of Muhammad Rafique and Rehmat Ali.
3. Shortly thereafter the four petitioners and their co---accused, Pervaiz Ahmad arrived at the spot.'
Muhammad Siddique and Muhammad Riaz carried knives, whereas the others were empty handed. They saw Muhammad Akram deceased sitting on a charpoy in the lane. Muhammad Ashraf caught hold of him, while Muhammad Siddique gave him an injury with the knife in the chest. The deceased raised alarm and fell down to the ground. Muhammad -Ashraf P. W. Reached the spot on hearing the alarm with a view to help his deceased brother. Pervaiz Ahmad caught hold of him from the neck whereas Muhammad Riaz inflicted an injury with a knife on his back.
4. The accused applied for bail. Their bail application was rejected by the learned Sessions Judge.
5. Muhammad Ashraf and Muhammad Riaz then applied for bail to this Court. Their bail application (Criminal Misc. No. 3675 of 1969) was dismissed by my learned brother Ata Ullah Sajjad, J. While dismissing their application his Lordship observed :- "Let some evidence be recorded and the learned Magistrate may consider the bail Re : Muhammad Ashraf thereafter."
In other words the bail application of Muhammad Riaz was dismissed in toto.
6: Pervaiz Ahmad, who is not a petitioner in the present application, approached this Court by way of Criminal Misc. Petition No. 7608.Of 1969. It was allowed to him on 16th Janu--ary 1970. However, while granting him bail I attached a condition to it and that was. To the effect, that the bail order shall not .Stand in the, way of the Committing Magistrate, if he came to the conclu--sion after recording evidence, that the petitioner was also responsible for the death of Muhammad Akram deceased. In that event he could cancel his bail. I intended to convey thereby that if Pervaiz Ahmad was committed to the Court of Session on the charge of murder, it would be open to the Committing Magistrate to cancel his bail.
7: It is thereafter that the present- petitioners applied for bail as has been indicated above.
8. At the the of the admission of the petition, I rejected it so far as Muhammad Siddique accused- petitioner was concerned, as he was alleged to have stabbed the deceased and issued notice with respect to the remaining three petitioners.
9. A day earlier to the admission of the aforesaid petition, Muhammad Anwar, complainant, moved an application (Criminal Misc. No. 565 of 1970) for the cancellation of bail granted to Pervaiz Ahmad. It was mainly based on the ground that since his release on bail aforesaid Pervaiz Ahmad was suborning evidence. It was thus admitted and notice was issued. In the meantime arguments were heard in the instant petition on 23rd March 1970, and the order was reserved. However, before the order could be announced, Muhammad Anwar, complainant, filed another application (Criminal Misc. No. 3580 of 1970 in. Criminal Misc. No. 56 5 of 1970) bringing to my notice that the main Petition No. 565 of 1970, had become infructuous inasmuch as the accused had been committed to the Court of Session on a charge of murder, and that 6e bail allowed to Pervaiz Ahmed had been cancelled. In view of this Criminal Misc. Petition No. 365 of 1970, was dismissed as having become infructuous.
10. A question arose, as to whether, under these circumstances, I could still proceed with the instant application and grant bail to the three petit; ones irrespective of the fact that they had been committed to the Court of Session to stand trial on a charge of murder. The case was then adjourned and arguments were heard on 10th June 1970.
11. Mr. Q. M. Saleem, learned counsel for the petitioners, submitted that the mere fact, that the petitioners had been com--mitted to the Court of Session made no difference and that Court could decide the question of their bail taking into consideration evidence recorded by the Committing Magistrate. This view was strongly opposed by the learned Additional Advocate- General and Mr. Abid Ali Buttar, counsel for the complainant. Large number of authorities were quoted by both sides, but I would refer only to of them. In Ghulam Farid area another v. State (1969 P Cr. L J 240) their Lordships of the Supreme Court before whom it was contended by the learned counsel for the petitioner that mere committal was not by itself sufficient to make it appear to the Court that reasonable ground existed for believing that petitioners had been guilty of an offence punishable with de or transportation for lift within the meaning of section 497 Cr. P.C. Repelled it. It was observed.
"We are unable to agree with this, Commitment is by itself sufficient to show that a prima facie case exist. In the circumstances we see no reason even on merits to interfere pith this case.
In Muhammad Shafiq v. Muhammad Hanif and another (1970 8 C M R 143) after referring to a number of cases, their Lordships of the Supreme Court made the following pertinent observations :- "It is now well settled that in determining this question namely, as to whether reasonable grounds appear for believed that an accused person is guilty or not for the purposes of bail the Court has not to examine the merits of the prosecution case or the plea of the defence or to make an appraisal of the material on the record but, as pointed out in the case of Khalid Saigol v. The State PLD 1962 SC 495 merely to look at the materials placed before it by the investigation agency and be prima facie satisfied that some tangible evidence can be offered which, if left un-rebutted may lead to the inference of guilt.
Following this principle, this Court has, in the case of Nadara v. Jamait Khan and another PLD 1968 SC 310 observed that ordinarily the framing of a charge upon taking evidence referred to in section 208 and examination of the accused would furnish a ground for. Such a belief', as is required to be formed under section 497; Criminal Procedure Code.
Again in Ghulam Farid and another v. The State 1969 SCMR 80 while dismissing the petition it was observed that 'commit--ment is by itself sufficient to show that a prima facie case exists'. To the same effect are the observations of this Court in the case of Ahmad Bakhsh v. The State 1969 SCMR 266 where also, after the accused had been committed for trial, it was held that the High Court had validly refused to grant bail, for, it was not for the High Court at this stage to evaluate the evidence. It has merely to consider whether upon the material on the record, such grounds for belief had been made out or not. It seems, there--fore, that the subsequent view of this Court is clearly to the effect that where a prima facie case, upon the taking of evidence, is found to exist, that is also ordinarily sufficient for holding that there are reasonable grounds for believing that the person charged with the offence is guilty."
12. In view of the aforesaid weighty observation of their Lordships of the Supreme Court, the very fact, that the petitioners have been committed to the Court of Session to stand - trial on a charge of murder, I am of the view that they are not entitled to the grant of bail. The petition thus stands dismissed.