' Abdul Ghani, complainant has invoked jurisdiction of this Court to seek cancellation of bail allowed to Zulfiqar, Muhammad Lal, Murad Hussain and Muhammad Siddique, accused- respondents, by the District Criminal Court, Mirpur, on November 18, 1985.
2. A report was lodged by the complainant at Police Post Ali-Baig that complainant and Gulab Khan, Lambardar of the village, on account of past enmity, were not on good terms. On October 13, 1985, the day of incident, the complainant visited the Electricity Department at Mirpur to obtain a Meter where Muhammad Aslam, Zulfiqar, and Lal Khan, accused came across and jeered at him and taunted but the complainant silently tolerated it. While going home at 3 p.m. Be was attacked by the accused persons sitting in wait at `Bagali Maur'. The accused were armed with knife and sticks. They challenged him that he would not go alive and thereupon to accomplish the common object, attacked him with knife and sticks. He received ten injuries out of which two were caused with sharp-tdged and other with blunt weapon. The sharp-edged injuries were ascribed to Muhammad Aslam and others to Lal Khan, accused. The rest of the accused were ascribed infliction of injuries by fist blows. The complainant on receiving injuries, fell down and was being dragged by the accused persons to throw him in a deep ditch when Abdul Rehman and Piran Ditta, eye-witnesses, arrived at the scene who saved him from the accused' persons.
3. All the accused including Muhammad Aslam, the principal accused, applied for bail before arrest next day after the incident. They were admitted to interim bail but subsequently the interim bail allowed to the respondents was confirmed, except Muhammad Aslam.
4. Abdul Khaliq Ansari, the learned counsel for the complainant, contended that in view of the conduct of the accused persons resulting in the incident, they were not entitled to the concession, of bail. It was argued that the District Criminal Court fell in error by misconstruing the proposition, as such it exercised discretion in an arbitrary fashion. He cited 1982 SCMR 87, P; L D 1978 Lah. 1273, 1978 SC 432, PLD 1984 Sh. C (A J & K).1, PLD 1978 Lah 78 and 1977 P Cr. L J 387 and 391. Mr. Basharat Ahmed Sherkh, the learned counsel for the accused-respondents, opposed the points raised by the learned counsel for the complainant and supported the impugned order. It was urgcd that the discretion exercised by the lower Court was not likely to be reversed unless this Court was satisfied that the impugned order was not passed in a judicial fashion, He referred to PLD 1975 Lah. 568 and elaborated that in view of the facts of the present case, the concession. Of bail should not be withdrawn.
5. The provisions of sections 426, 496, 497,.498 and 561-A, Cr. P. C.IA invariably received attention of the superior Courts of the Sub-Continentl wherein leading principles relating to grant or refusal of bail in cases of non-bailable offences were examined. Similarly, rules applicable to the case of bail after arrest and before arrest were distinguished. Nevertheless, the consensus was that in the case of bail pre-arrest, the restrictions postulated under section 497(1) and (2), Cr. P. C. Were equally applicable. Therefore, wide powers given under section 498, Cr. P. C. To grant bail to any person in any case, were subject to restrictions contained under section 497, Cr. P. C.
' In Gul Sanobar's case (1), it was held that cases of bail pre-arrest were to be dealt in a manner different from the cases of bail after arrest and it was always in presence of mala fide, apparent concoction, fabrication and proposed compassionate grounds necessary to be considered for allowing bail pre-arrest. Courts were vested with jurisdiction to allow bail before arrest in presence of all or any of the aforesaid grounds.
' In Khalid Saigol's case (2), while dealing with the question of bail under section 427, Cr. P. C., Mr. Justice Hamoodur Rehman who delivered the verdict of the Court, made a general analysis of requisite conditions applicable to bail, in the following manner :- "We may state straightway that where a Court is called upon to exercise its judicial discretion, it will not be discharging its functions properly if it were to proceed upon any a priori assumption that in all cases where an offence punishable with death or transportation for life is alleged, ball must as a rule of course be refused, nor can there any rule of practice upon the basis of which such a discretion can be judicially exercised, for, rarely will there be two cases in which the facts are alike.
To act upon a rule of practice may, therefore, well constitute an arbitrary exercise of a discretionary power, for the exercise of a discretion vested by law a Court must be upon sound judicial principles after taking into account the facts and circumstances of such case. The nature of the accusation and the heinousness of the crime alleged are no doubt, very relevant circumstances to be taken into consideration, but by themselves they are not the only circumstances, as we have endeavoured to point out, even under sections 496 and 497. What further considerations should be taken into account by the Court in deciding this question, must necessarily depend upon the facts and circumstances of each case, and no hard and fast rule can be laid down, ' There may well be a variety of other circumstances of greater or less importance which may properly be taken into consideration but we do not wish to enter upon any ,exhaustive examination of such matters, since, in our view, it is neither possible nor desirable to do so."
' In Muhammad Ayub's case (3),N. Justice Abdul Hamid reviewed the scope of judicial discretion exercisable under section 498 of the Code and listed the following matters for taking them into consideration in granting or refusing bail- "(1) whether there is a prima facie case against the accused ?
(2) whether the release of the accused on bail would place him in a
(1) PLD 1984 Sh. C (A J & K) 1 (2) PLD 1962 SC 495
(3) PLD 1959 W. P.) Kar, 37 position of advantage against the prosecution in that it would lead to the implication that a case for conviction does not exist ?
(3) whether the accused, if at liberty, would tamper with and destroy the evidence intended to be adduced against him ?
(4) whether the offence with which he is charged is heinous and is under public condemnation ?
(5) whether the accused is a habitual offender in the crime with which he is charged, or is, in other respects, of a criminal bent of mind ?
(6) whether by his detention in jail his defence in the Court would be hampered ?
(7) whether on account of his detention his dependents would be deprived of their subsistence ?
(8) age, health and sex of the accused."
' In view of the circumstances constituting the alleged offence in that case, the application for bail was rejected. While considering the question of bail prayed by Rana Muhammad Amin (1), Mr. Justice Ghulam Mujaddid Mirza, expressed the following View makes no difference if the offences of which the petitioner has been charged, are not punishable with death or life imprisonment. Though the quantum of sentence plays an important role in determining the question of bail, nevertheless that is not the only criterion. The other important factors to be considered simultaneously are the conduct of the accused, how, why and under what circumstances the crime was committed and the loss or damage resulting from such a crime either to an individual or to the public at large or the Exchequer."
' In Nazir Ahmad's case (2), Mr. Justice Aslam Riaz Hussain declined to cancel the bail of the accused in view of the facts of the case, as the accused was alleged to have killed his sister in grave and sudden provocation. The learned Judge listed the following reasons for consideration of the Court while granting or refusing bail :- "While it is true that ordinarily bail is not to be granted in cases which are punishable" with death, imprisonment for life or 10 years' R. I. i,e, cases in which these are the maximum sentences provided by the Penal Code, unless of course the case of the accused/petitioner comes within the proviso to section 497(1), Cr. P. C. Or where there are reasonable grounds for believing that the petitioner is not guilty of the offence in question or where the case is covered by subsection (2) of section 497, (Cr. P. C.). But there are some cases in which although the maximum sentence may be imprisonment for life or 10 years' R. I., but where, in view of the nature of the allegations and the circumstances in which the offence was committed, coupled with a long string of authorities of the superior Courts, it is well settled that the maximum sentence is never-awarded. In such cases it would not be proper to refuse bail to the accused persons merely on the ground that the maximum
(I) PLD 1978 Lab 78 (2) P 1. D 1975 Lab. 568 sentence provided for the offence is imprisonment for life or 10 years' R. I."
6. It is clear from the dictum of the superior Courts of the country that the question of grant or refusal of bail is to be settled in the light of the facts of each case. It has been consistently observed that the Court, at the time of settling the question of bail, shall apply its mind to find out as to whether any tangible evidence constituting reasonable grounds to connect the accused wan the alleged offence, was available or not. In presence of such relsonable grounds connecting the accused with the liability, the restrictions contained under section 497, Cr. P. C. Were to be kept in view.
7. In the present case, it is noticed that the lower Court refused baillo Muhammad Aslam as he was clearly ascribed infliction of knife injuries though those injuries were given simple in the medico- legal report. Zulfiqar, Muhammad Siddique and Murad were attributed to have caused fist blows.
As according to the lower Court, the question of infliction of such injuries and their being members of unlawful assembly, was not established according to its satisfaction and it required further inquiry, they were given the benefit of concession of bail under section 497(2), Cr. P. C. In my own estimation, the finding of the lower Court confined to the role ascribed to these accused persons necessarily was covered by subsection (2) of section 497, Cr. P. C.
8. Lal Khan who was alleged to have caused injuries with stick out of which injuries Nos. 6, 7 and 10, were given grievous, was ascribed the leading role in the incident. In the First Information Report, the name of father of the accused (Lal Khan) was entered as Nek Alam, whereas the accused was the son of Riaz Ali. The lower Court was influenced by the wrong mention of the name of the father of accused as also the same was supported by an application of the accused persons placed before the rower Court. It was, therefore, considered that in presence of wrong name of father of the accused given in the F. I. R., the present accused person could not be held up. This finding suffers from serious defects in the following fashion :-
(i) It was totally forgotten that the parties resided in the same village, as such their identification could not be doubted ;
(ii) the incident took place at 3 p.m. On road side, as such the complainant was naturally in a position to identify the culprits ;
(iii) the report was given verbally by the complainant. Mere wrong mention of the name of the father of accused could not be isolated from the chain of material particulars of the incident, as this was not permissible ; and
(iv) In addition to these factors listed above, for satisfaction of the judicial conscience, I myself asked Lal Khan in the open Court as to whether any other person of his name son of Nek Alam lived in the village. The answer was in negative. The material collected by the investigating officer, when considered alongwith aforesaid factors,' prima facie, enables to believe that Lal Khan son of Niaz Ali, the present accused was the person connected with the alleged, offence."
9. In criminal cases, whereas, it is consistently held that each case is to be decided in the light of its own facts, it is equally imperative to decide a case, including the question of bail, keeping in view the public policy, the environments in which the offence is committed, mode and manner of the alleged incident. It is not fair and expedient to deal every case in an orthodox and mechanical fashion. The Courts are under duty to be alive of the changing techniques of commission of offence, behaviour of culprits and its ultimate effect on society. In the present case, it appears that the subordinate Court applied an orthodox method by giving benefit of wrong prescription of doubt on account of incorrect mention of name of father of the accused.
10. The salient features of the incident are already listet above. In view of the circumstances mentioned in the F. I. R., supported by evidence collected during the investigation, do help to believe that in the present case reasonable grounds are available to connect Lal Khan, accused, for his complicity in commission of non-bailable offence. The manner of the incident, the role ascribed to Lal Khan, accused, when considered together in total frame of circumstances, leads to an inference clearly adverse to the finding of the District Criminal Court.
11. In presence of reasons listed above, the impugned order is partly modified to the extent of Lal Khan, accused. The concession of bail altowed to Lal Khan accused is hereby withdrawn.