The facts giving rise to this petition by the State for cancellation of bail allowed to the three respondents out of the five accused persons in a case of murder originally registered under section 364 and later converted to one under section 302, P. P. C. Are as follows:-- On the 31st of October 1970, a report was lodged by Taj Muhammad, complainant, at Police Station Sarai Mughal, Kasur, District Lahore, to the affect that about six days earlier on the evening of the 25th of October 1970, his father Imam Khan was summoned by Qudrat Ullah, respondent No. 1, to his house on the pretext of a settlement about irrigation water on which Imam Khan left with him and was never heard of again. A suspicion was expressed in the report that the respondents had murdered Imam Khan. The motive alleged was that for the previous year the respondents had been using 22 minutes of irrigation water belonging to Imam Khan which the latter had withdrawn from them and given over to Arshad Khan.
2. The respondents were allowed bail for an offence under section 364, P. P. C. In the first instance on the 11th of November 1970, by Mr. Bashir Ahmad, Additional Sessions Judge, Lahore.
Subsequently, however, on the 15th of December 1970, when section 302, P. P. C. Was also added the respondents applied afresh for bail which was allowed to them on the 20th of December 1970, and confirmed on the 8th of January 1971, by Mr. Muhammad Inam Khan , Additional Sessions Judge, Lahore. Since then they are on bail.
3. The State moved for the cancellation of their bail on the 22nd of January 1971, mainly on the ground that the respondents were abusing their liberty, had not joined the investigation, with the result that the recovery of the dead body could not be made from them.
4. The parties are present with their learned counsel, includ--ing Taj Muhammad, complainant, who is represented by Sh. Mumtaz Hassan. The Investigating Officer is also present with the relevant record.
5. It is hardly necessary to state that neither the dead body nor the last wearing apparels nor any blood-stained earth or other incriminating articles have been recovered so far. The Investigat--ing Officer has clearly stated that the respondents have been joining the investigation and as such this ground is of no avail to the State.
6. In support of the petition for cancellation of bail learned counsel for the State whose arguments were supplemented by the learned counsel for the complainant mainly relied on the judgment of the Supreme Court reported as Muhammad Shafiq v. Muhammad Hanif and another (1970 5 C M R 143). In particular the following two observa--tions appearing respectively at pages 146 and 147 were pressed into service :-- "(1) The Court . . . As pointed out in the case of Khalid Saigol v. The State PLD 1962 SC 495, merely "to look at the material 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.
(2) It will be observed that 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.
In addition to this, reliance was also placed on the following observation from Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (PLD1970SC335 "Coming now to the merits of the case, there is little doubt that the Courts below have not followed the principles laid down by this Court for granting bails. In the case of Farid v. Ghulam Hussain and others 1969 SCMR 924, it was held that `the Court is not called upon at the stage of bail to conduct anything in the nature of preliminary trial to consider the probability of an accused's guilt or innocence, though it is necessary to ascertain as to whether there exists any reasonable ground upon which its belief can be founded that he had been guilty of such an offence'. In Muhammad Aslam v. The State PLD 1967 SC 539, it was held that `in dealing with an application under sections 497 and 498, Cr. P. C., the High Court is not required to enquire into the merits of the prosecu--tion case or the plea of defence for arriving at the conclusion whether the accused has been guilty of an offence punishable with death or transportation for life'."
7. Yet another contention raised by the learned counsel for the State was that even if one proceeds on the assumption that the existence of reasonable grounds to give rise to a belief of guilt on the basis of the material available to the police was held to be doubtful in so far as the charge of murder was concerned, there was certainly sufficient material to warrant such an inference in regard to the offence under section 364 which was also punishable with transportation for life.
8. On the other hand, learned counsel for the respondents relied on Nadara v Jamait Khan and another (PLD 1968 SC 310). The precise quotation pressed into service reads as follows :- "The determination whether bail will be allowed to a person accused of an offence punishable with death or transportation for life will thus depend on the facts of each case. In Muhammad Aslam's case the learned Judge in the High Court not only allowed bail, but further opined that the offence committed by the petitioner fell under section 325, P. P. C. This determination though expressed in a tentative form was beyond the scope of section 497, Cr. P. C. Which does not contemplate appraisal of evidence recorded by the Inquiry Magistrate or the trial Judge while dealing with a bail applica--tion. The belief that the person accused has been guilty within the purview of section 497 would at an early a stage rest on the accusation levelled against him the report under section 173, Cr. P. C. And the evidence which the prosecution proposes to examine, the plea of defence if any raised during the investigation or any other special circumstance appearing in favour of the accused or against the prosecution."
It was contended that considering the entire material available in the instant case, it would be difficult to raise the inference of the existence of reasonable grounds to believe that the respondents were guilty of an offence punishable with death or transportation for life. It was next contended that whatever evidence of wajtakker or extra-judicial confession now available to the police was collected pretty long after the occurrence and as such would obviously gave the impression of being trumped up.
9. Learned counsel for the respondents also referred me to Jinnat Ali and another v. The King (PLD 1950 Dacca 53) wherein conviction under section 364 of the Pakistan Penal Code was set aside by the learned Judges on the basis of the following observation made in another authority Abdul Ghafoor Khan v. The Emperor (41 C W N 297).
"In order to establish a charge of abduction in order to murder, when the case is one of abduction by deceitful means, it is not enough for the prosecution merely to prove certain circumstances under which the abducted persons was induced to go, nor even to prove a mere misrepresentation. They must prove that there was a misrepresentation and that the particular misrepresentation was the result of a plan to murder and that it was one by which the abducted person was himself deceived and was induced to go."
10. The decision of the case depends on firstly the interpre--tation of the often repeated expression namely, "if there appear reasonable grounds for believing" as occurring in subsection (1) of section 497 of the Code of Criminal Procedure; which has been the subject-matter of several judicial pronouncements and secondly, whether on the basis of its accepted interpretation the appearance of such reasonable grounds to raise a belief, can or cannot be spelt out in the circumstances of the case on the material available at this stage.
11. The Investigating Officer has clearly stated that the challan is complete in every respect and is only withheld for the recovery of a gun which is still awaited. The incriminating material available so far to the Investigating Agency may be categorised as follows:-
(i) The motive alleged in the First Information Report by Tai Muhammad complainant son of Inam Khan to whose disappearance this case relates; namely the deprivation of the respondents from the enjoyment of a turn of 22 minutes' irrigation water belonging to the complainant party which on withdrawal from the respondents was promised to be given over f to another party;
(ii) the deceased Imam Khan was summoned by the respondents through Qudrat Ullah while he was sitting with Taj Muhammad complainant and Rehmat Khan in his house on the pretext of the settlement of the dispute over the turn of water;
(iii) that one Mukhtar of the same village heard a gun report from the house of Qudrat Ullah on the same evening and contacted the latter, who gave him no satisfactory explana--tion of the same;
(iv) that three persons, namely, Qamar Khan, Abdur Razzaq and Hurmat Khan saw the respondents going and returning in a truck;
(v) that Qudrat Ullah, respondent No. 1, made an extra---judicial confession before Rahim Khan, a B. D. Member who produced him before the police and similarly Hidayat Khan and Asghar Khan made confessional statements before Barkat, an Ex B. D. Member;
(vi) that two licensed weapons, namely, a 12 bore gun held by Hidayat Khan, respondent and 32 bore pistol held by Qudrat Ullah, were got exchanged by them with some other licensed weapons owned by their relatives subsequent to the occurrence.
12. A close examination of the expression "if there appear reasonable grounds for believing" would clearly show that firstly there may not be firm grounds in existence for raising the belief but a mere appearance of their existence should be good enough, secondly, the appearance should be not of intangible grounds as being the figment of one's imagination or unreasonable grounds which may not be inferred by a prudent man, but should appeal to reason so as to be clearly spelt out by a reasonable person. Thirdly the sum total of the appearance of such reasonable grounds should be such as to give rise to a belief which is obviously something much more than a mere suspicion or possibility however strong. The wisdom behind the use of such a guarded and qualified expression by the Law-Giver where the authorities concerned are called upon to express a tentative view on the basis of the material available to them in regard to their belief as to the guilt or innocence of a person even at the earliest stage when they are not called upon to appreciate or assess the evidence, is not far to seek. Unfortunately notwithstanding the availability of a chain of authorities by the Supreme Court on the interpretation of this rather difficult and illusory expression it does not appear to have assumed a concrete and crystallised form so as to offer a safe guideline to this Court or the Subordinate Judiciary. In Muhammad Shafiq v. Muhammad Hanif (1970SCMR143) it was observed by their Lordships that for the determination of this question as to the existence or otherwise of the appearance of reasonable grounds for believing the Court has not to examine the merits of the prosecution case, the plea of defence; or to make appraisal of the material 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. Having discussed the earlier authorities of the Supreme Court, namely, Muhammad Ayub v. Muhammad Yaqoob and another (PLD 1966 SC 1003), Khalid Saigol v. The State (PLD 1966 SC 495); Nadara v. Jamaiat Khan and another, Ghulam Farid and another v. The State (1969 SCMR 80) and Ahmad Bakhsh v. The State (1969 SCMR 266), their Lordships came to the definite conclusion that once an order of commitment was made by the Inquiry Magistrate who has to b;, satisfied as to the existence of a prima facie case it would be difficult to appreciate that there would still be reasonable grounds for believing that the accused was guilty and on that basis allowing him bail in a case punishable with death or transportation for life. In this authority their Lordships also referred to the view expressed by S. A. Rahman, J. In Muhammad Ayub v. Muhammad Yaqoob and others which was frequently invoked in the High Court as well as the Supreme Court for seeking enlargement of accused persons even after commitment in cases of murder etc. The precise observa--tion was also reproduced, which reads as under:- "Of course, the mere existence of an order of commitment for trial need not be equated with a finding that `there appear reasonable grounds for believing that the respondent was guilty of an offence, punishable with death or transportation for life'."
Having carefully analysed this observation in its proper context their Lordships took the view that S. A. Rahman, J. Did not intend to lay down as a general principle that bail could still be allowed after commitment. The matter was also considered from another point of view that the expression `grounds' occurring in section 497 of the Code of Criminal Procedure was entirely different from `evidence' which may or may not constitute evidence, but nevertheless could still be taken into consideration. A perusal of this authority containing an elaborate discussion of the earlier authorities on the point clearly gives an impression as if their Lordships were firmly of the view that once an accused person was committed to stand trial for an offence like murder, there was no question of his being released on bail. But the matter does not end here. In a subsequent authority of their Lordships of the Supreme Court, Nisar Ahmad v. The State (1971 Law Notes 11) a view apparently somewhat different and yet not irreconcilable with the earlier view taken by their Lordships, was expressed by Sajjad Ahmad and Waheeduddin Ahmad, JJ., while interpreting the authority reported as Muhammad Shafiq v. Muhammad Hanif their Lordships observed as follows:- "8. The decision of this Court in Muhammad Shafiq's case, referred to by the learned Chief Justice in his order, under challenge, does not foreclose the question of grant of bail to an accused person after his commitment for trial under section 201. Cr. P. C. Under section 220 of the Code, the commitment of an accused person, during or until the trial, is subject to the provisions of bail contained in the Code, which means that where, even at the time of commitment, it appears that any of the provisions of section 497 are attracted to allow bail to the accused, he need not be committed in custody to stand his trial."
A proper instance referred to in this regard was:- " where in terms of subsection (2) of section 497, the Inquiry Magistrate finds that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but commits him nonetheless for trial, because there are sufficient grounds for further inquiry into his case. Pending such a further inquiry into his guilt, the accused shall be released on bail."
Be that as it may, however, in the instant case I am not con--cerned with the question of grant or refusal of bail at the post-- commitment stage, but in a case where the investigation has already concluded.
13. Having considered the contentions raised by the learned counsel for the parties, in the light of the latest pronouncements of their Lordships of the Supreme Court and their applicability or otherwise to the facts of the case before me, I am of the view that the refusal of the Investigating Officer to support the main ground taken by the State in this case, namely, that the respon--dents had not joined the investigation, and rather his positive assertion to the contrary, coupled with the non-recovery of the dead body or any other incriminating article at the instance or from the possession of the respondents after the lapes of more than four months would bring the case within the purview of subsection (2) of section 497, Cr. P. C. Inasmuch as the material available to the Police would only justify further conti--nuation of inquiry into the guilt of the respondents in which situation they shall be entitled to release on bail during its pendency.
14. The upshot of the discussion, therefore, is that the petition for cancellation of bail fails and is hereby dismissed.