Ahmed Hussain and Maqbool Hussain have moved to seek bail whereas the State has moved for cancellation of bail allowed to Karamat Hussain by the Sessions Judge, Kotli, on 28th June, 1984. As both the petitions arise out of a common order of the Sessions Judge whereby Karamat Hussain was allowed bail and other accused-petitioners were refused bail, these are disposed of together.
2. The accused persons are attributed the murder of Muhammad Sadiq deceased. It was alleged that Muhammad Sacliq was a Cleaner, working with Karamat Hussain, accused, an owner and driver of the truck. On the night of 5th June, Ahmed Hussain, accused-driver of another truck.
Damaged the body of Karamatullah's truck which was parked at the truck-stand in Khuiratta city.
Muhammad Sadiq reported the mishap to Karamatullah who alongwith Muhammad Sadiq immediately drove towards the direction where Ahmed Hussain and Maqbool Hussain had gone.
The y came across at Khakhrote Check-Post. Ahmed Hussain immediately confessed his guilt and offered to compensate the loss. The matter was thus amicably settled. When Karamatullah was about to drive back his truck, he was informed by the other accused that Muhammad Sadiq, Cleane r, was lying down due to fall. Muhammad Sadiq was removed and brought to truck-stand and was placed at a `Charpai' and shifted to Civil Hospital but Muhammad Sadiq expired on the way, One Alam Sher, a relation of the complainant, was informed of the situation by Karamatullah who informed Abdul Aziz, father of the deceased. Consequently, Abdul Aziz reported the matter to local police at 9 a.m.
3. As the real cause of death was not brought to light, father of the deceased suspected the accused persons and held them responsible for the death. The suspicion turned into reality when subsequently Karamatullah made extra-judicial confession and undertook to compensate the heirs of deceased. Thus, the accused persons who failed to unfold the misty of death, were apprehended for the liability of murder.
4. An accused guilty of an offence punishable with death or imprisonment for life, ordinarily, is not considered entitled to concession of bail as the legislature imposed a restriction in such cases under the provision of section 497(1), Cr. P. C. It was not permissible to allow bail to an accused person where reasonable grounds to believe that he has committed an offence, were shown to exist, Conversely, where the Court was satisfied that no reasonable grounds existed to connect the accused with the liability it was free to enlarge him on bail. The actual test for grant or refusal of bail, therefore, rested on availability of reasonable grounds. The aforesaid interpretation of the provisions of section 497(1), Cr. P. C. Finds support from Muhammad Sadiq's case , wherein Mr. Justice Hamoodur Rehman, C. J. (as he then was) made observation in the following manner : "--It is now well-settled that in determining question, as to whether reasonable grounds appear for believing 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 record, but merely 'to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt'. 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. Under section 497 of the Criminal Procedure Code, all that is necessary to see is whether 'reasonable grounds' exist. Now, 'grounds' are entirely different from 'evidence'. 'Grounds' may or may not constitute 'evidence' but, nevertheless they can be taken into consideration."
The Supreme Court of Pakistan expressed identical view in Nisar Ahmed's case . The relevant observation is reproduced below :- "--Of late, a growing tendency is witnessed of applications for bail and anticipatory bail being brought in the High Court and the Supreme Court almost as a matter of routine. As repeatedly laid down by the Supreme Court, grant or refusal of bail in non-bailable cases is a matter of discretion with the primary Court, which is inquiring into or trying the case. This discretion has to be exercised in a judicial manner, with due regard to the circumstances of each case, without any propensity to unnecessarily jeopardise the liberties of the people who are accused of criminal offences. For offences punishable with death or transportation, this discretion is subject to limitation that bail is not to be allowed to an accused person, if it is shown that there are reasonable grounds to believe that he has committed such an offence. In order to ascertain whether reasonable grounds exist or do not exist, the Courts do not have to probe into the merits of the case. They have only to look at the material placed before them by the prosecution, to see whether some tangible evidence is available against the accused, which if left unrebutted, may lead to the inference of guilt.
Reasonable grounds are not to be confused with mere allegations or suspicions, nor with tested and proved evidence, which the law requires for a person's conviction for an offence."
5. It is noticed that accusation in the present case, rests on the statements of Abdul Aziz, Alam Sher, Muhammad Iqbal, Raja Hokum Dad and medico-legal report. According to the medico-legal report, the cause of death was the rupture of inner surface of the spleen. No corresponding injury on the body was shown in the post-mortem report. The injuries discovered on the dead body were on the back of right shoulder and toe. The other evidence consists of extra-judicial confession of Karamatullah who confessed for the mishap and promised to compensate the heirs of the deceased. The extra-judicial confession was not disclosed in the F.I.R. The alleged extra-judicial confession was denied as the learned counsel for the accused termed it a concoction and afterthought fib. The aforesaid material evidence placed before this Court, prima facie, is not considered sufficient to constitute reasonable grounds to link the accused-respondents with the1 2 liability at this stage, so as to deny the concession of bail. It is, obviously, a case of further inquiry as postulated under subsection (2) of section 497, Cr. P. C.
6. The impugned order whereby Karamatullah was allowed bail and other accused persons were declined such concession, contained no reason for the refusal of bail. This Court has observed in various cases that the orders of grant or refusal of bail must rest on well-recognized rules of bail.
The impugned order was devoid of such reasons. The subordinate Court neither advanced reasons for grant nor for refusal of bail to the accused persons. The order was, therefore, not found a proper judicial exercise of discretion, but at the same time, an improper or arbitrary exercise of discretion, by itself, was not a ground for refusal of bail when in estimation of this Court bail could not be refused. This was so as this Court was equally competent to decide the question of bail in exercise of its own judicial discretion.
7. In the light of the aforesaid position of the case, the bail allowed to Karamatullah, accused- respondent, is maintained. Ahmed Hussain and Maqbool Hussain are also allowed bail. They shall be released provided they furnish bail bonds in the sum of Rs, 1,00,000 (one lac) each, with their personal bonds in the like amount, to the satisfaction of A. D. M., Kotli. 1970 SCM R 143 PLD 1971 SC 174