The respondents in this case along with one Mukhtar are facing an enquiry before the learned Civil Judge and F. C. M., Mehar for the offence of murder. Although bail was refused to them by the committal Court the learned Sessions Judge has, by the impugned order, granted them bail.
3. The main reason that weighed with the learned Sessions Judge in granting them bail is that there was admittedly, in the club a marriage going on and that there was a considerable number of persons present and, therefore, it could not be said with any certainty that persons who were seen there were necessarily a part of the group with the accused Mukhtar or that in any case they could be acting in concert so as to attract the provisions of section 34. In view of the entire facts of the case I would not feel disposed to interfere with the order of the learned Sessions Judge as I can do so only by expressing an opinion at this stage, which will be premature, that upon the evidence not only the presence of the respondents is established but also the fact that they were acting as one party with the accused Mukhtar so as to make them liable under section 34 of the Pakistan Penal Code.
4. The learned counsel for the applicant has, however, drawn my attention to a decision of the Supreme Court reported in Nisar Ahmad v. The State (1), where the Supreme Court depricated the making of applications to the higher Courts for bail in non- bailable cases. I do not think that that case helps the petitioner in this case. That was a case where the High Court had been asked to grant bail and the Supreme Court said that the grant or refusal of bail in non-bailable cases is a matter of discretion in the primary Court which is enquiring into or trying the case. Their Lordships went on to explain that the discretion had to be exercised in a judicial manner, with the regard to the circumstances of each case, without any propensity to unnecessarily jeopardise the liberties of the people who are accused of criminal offences. Their Lordships also said that in order to see whether there are reasonable grounds for believing a person to be guilty of an offence punishable with death or transportation the Courts do not have to probe into the merits of the case but to see whether there is tangible evidence available against the accused which could lead to the inference of guilt if unrebutted.
5. In the present case the Sessions Judge has thought that there was not, as yet, such evidence and I do not think it could be said, without more careful analysis of the evidence than is permissible at this stage, that he was wrong in this approach. If I accede to the request made by counsel for the applicant I think I would be doing precisely what the Supreme Court held should not be done, namely, interfering without good grounds into the judicial discretion of the primary Court. It may be that more clear evidence comes on the record hereafter in which case it is open to the applicants to move the Sessions Court for cancellation of the bail already granted. At the moment I am not pursuaded that there is such evidence that I should interfere with the order of the learned Sessions Judge. The application is dismissed. .
(l) PLD 1971 SC V74