' This is an application under section 498-A, Cr.P.C. For pre-arrest bail moved by 7 applicants/accused against whom challan was filed under sections 326, 324, 323, 147, 148, P.P.C.
Registered as Crime No,97/88 P.S. Sadar, Jacobabad. The facts are that complainant Nabi Bux Thalani lodged his F.I.R. At the Police Station on 4-7-1988 alleging therein that he and his brother Muhammad Usman and his son Muhammad Ali and Mir Dost were excavating water-course at evening time when the 7 applicants objected to the excavation. Harsh words were exchanged between both the parties and then the applicants/accused are said to have given Lathi and hatchet blows to the complainant and other P.Ws. The applicants then allegedly ran away. A pre- arrest bail application was filed by the applicants in the Sessions Court which was transferred by the learned Sessions Judge to the learned First Additional Sessions Judge, Jacobabad who dismissed the same by his order dated 2nd August, 1988. Now the applicants have moved this Court for grant of bail before arrest.
2. Mr. Mumtaz All Siddiqui, learned counsel for the applicants produced alongwith his bail application certified copies of the affidavits of (1) Nabi Bux son of. Abdul Hakim, complainant (2)
Muhammad All son of Shahal Khan, injured PW and (3) Muhammad Usman son cf Abdul Hakim an injured PW. Later on, he also filed the 'affidavit of (4) Mir Dost in this Court. In the affidavit of the complainant it has been stated that he had not given the names of the applicants/accused; the police is inimical towards the accused/applicants; the police only M took his LTI but F.I.R. Was not read over to him. In the affidavits of Muhammad All and Muhammad Usman the two injured witnesses it has been stated by both of them that as a result of receiving injuries they both were taken to the hospital. The police did not record their statements and they had not identified any of the culprits. As directed by me, the learned A.A.-G. Called the Investigating Officer who was present in Court and identified the complanant as well as the injured witnesses. The A.A.-G. Submitted that statements of the witnesses as well as the complainant was recorded under section 161, Cr.P.C.
3. I personally enquired from each of the deponents about the correctness of the affidavits sworn in by them and the averments made therein. They owned their respective affidavits. On being identified by the A.S.I., there seems to be no doubt about their 0 identity. Learned A.A.-G. Has also expressed satisfaction about the identity of the eye-witness Mir Dost, whose affidavit was filed on a later date, as A.S.I. Was not present on that day.
4. Learned counsel for the applicants relied on a decision reported as Abbas and 2 others v. State (1981 P Cr.L J 248) by a learned Single Judge of this Court, for the proposition that bail before arrest may be granted by the Court on the basis of such affidavits, although the application was ultimately dismissed on other ground.
5. I may also refer to case reported as Muhammad Shafi Tahir v. State (1978 P Cr.L J 177) wherein, a learned Single Judge of Lahore High Court had granted bail before arrest. The petitioner in that case was accused of killing his wife by setting fire to her after sprinkling kerosine oil on her. The matter was, however, compromised between the petitioner and his wife before her death. The said compromise was held to be a redeeming feature to be taken into account for grant of bail, which was allowed in the circumstances.
6. I may also refer to some other cases decided by the High Courts of Lahore and Sind, as it seems advantageous to refer to them with a view to illustrate the point further. Although these cases relate to bail after arrest but, on principle, they seem to be relevant as the bails, in all these cases, have been granted on the basis of affidavits.
7. In the case reported as Dinu alias Din Muhammad v. State (1988 P Cr.L J 1362) by a learned Single Judge of this Court who had granted bail to the accused on the basis of the affidavits filed by the eye-witnesses exonerating the accused though implicating him in the earlier statements, the learned Judge obseved: "I am of the view that on the basis of the affidavits of four eye-witnesses in the case who have completely given a go-bye to the prosecution case, it is rightly contended by the learned counsel for the petitioner that the case of the present applicant calls for futher enquiry.
I accordingly admit the applicant to bail...."
8. In the case reported as Syed Ali Raza v. State (1981 PCr.LJ 1080) Javed Iqbal, J., of the Lahore High Court (now, Judge of the Supreme Court) referred to the affidavits placed on record by the three eye-witnesses of the occurrence. These were to the effect that a fight had taken place but the petitioners were not involved therein and a group of different persons was involved in the same.
Their statements were, however, recorded by the investigating officer under section 161 but no statements were recorded by the Magistrate under section 164, Cr.P.C. It was thus observed that:- "...In any case, now they have placed on record the aforementioned affidavits in which they are advancing an entirely different version and their sworn affidavits are to the effect that the petitioners were not the assailants but some other people. In this veiw of the matter without commenting on the nature of evidence so far collected by the Investigating Agency against the petitioners I admit them to bail...."
9. In another case of the Lahore High Court reported as Muhammad Yar v. State (1986 P Cr.L J 987) a learned Single Judge of the Lahore High Court, while considering a bail application, found that all eye-witnesses including complainant did swear affidavits exonerating the petitioners from commission of the offence of murder of the deceased. Since the prosecution witnesses were not supporting the prosecution case it was held that the matter required further inquiry and in the circumstances, the petitioners were allowed bail.
10. In the case of Ali Gul and three others v. State (1986 PCr.LJ 433) before a learned Single Judge of the Sind High Court considering the question of the grant of bail in a case under section 302/34, P.P.C., it was found that all the eye-witnesses including the complainant filed their affidavits in which they have not implicated the accused. The affidavits had been sworn by them before the clerk of trial Court and the witnesses swearing affidavits, identified by advocate before oath-giving authority and their identity appearing to be beyond doubt, it was held that the complainant on whose motive the case was registered against the accused himself disowned the prosecution case. The affidavits filed contained statements of witnesses deviating from their earlier statements, being a case of conflict between two sets of statements called for further inquiry to know as to which of the statements were true. Therefore, the bail was, in the circumstances, granted.
11. I may also refer to three cases of the Hon'ble Supreme Court reported as Rehmat Ali and others v.
State (1979 SCM R 30), Allah Bux v. Nazar Hussain Shah (1979 SCM R 137) and Sanaullah v. State (1983 SCM R 15).
(i) In the first case, Anwarul Haq, C.J. And Nasim Hasan Shah, J., approved the order of the Lahore High Court granting bail to the petitioners. In that case, the complainant appeared to have subsequently resiled from his version given in the F.I.R. By making a statement under section 164, Cr.P.C.That the persons accused by him were innocent and that they had falsely been implicated.
In fact, he himself had learnt of the incident only in the morning. His affidavit to that effect was attached with the bail application in the High Court. Furthermore, an eye-witness, according to the F.I.R. And the mother and the sister of the deceased did also swear their affidavits to vouch for the innocence of the petitioner and the co-accused. The High Court allowed bail to the co-accused but declined the petitioners this concession on the ground that notwithstanding the above, there was other ocular evidence which included two eye-witnesses, together with the recovery of the guns and other circumstances and, therefore, it could not be said that there were no reasonable grounds for believing that the petitoners had committed the murder. The plea that the case was one of further inquiry entitling the petitioners to bail under section 497(2), Cr.P.C. Was rejected by the High Court. The Hon'ble Supreme Court on a petition for Special Leave to appeal from the said order observed that: "without commenting as to what weight, if any, can and ought to be attached to the aforementioned statement of the complainant and the affidavits relied upon by the petitioners in support of his plea for bail, we are inclined to think that at this stage at least it is difficult to say if the petitioners have committed the offence, more particularly when the complainant himself seems at the moment to disown the prosecution case. In the circumstances of this case, we think that the case of the petitioners is one of 'further inquiry' under section 497 (2)
Cr.P.C." The petition was, therefore, converted into an appeal and was allowed. The petitioners/appellants were ordered to be released on bail on furnishing securing in the sum of Rs,20,000 with two sureties each in the like amount to the satisfaction of the Assistant Commissioner concerned.
(ii) In the second case, (1979 SCM R 137) Muhammad Haleem, J, (now C.J. ,) and G. Safdar Shah, J.
While considerating a petition for special leave to appeal against the order of the Lahore High Court,two affidavits were filed by the alleged eye-witnesses exculpating the respondent therein from the commission of the crime which, it was held, had to be considered by the learned Judge in reaching the conclusion whether the respondent could be said to have been connected with the offence. This was indeed for the learned Judge in the High Court to which no exception can be taken. The Hon'ble Supreme Court agreed with the conclusion arrived at by the learned Judge of the High Court that it was a case for further inquiry under Section 497(2), Cr.P.C. And consequently it was not a case in which bail can be refused to the respondent. In that view of the matter the order passed by the learned Judge in the Lahore Court was held to be proper specially when the learned counsel had failed to show that in exercise of his discretion the learned Judge had conducted himself otherwise than in accordance with the well-settled principles relating to the grant or refusal of bail to an accused in a case under section 302, P.P.C. The petition, therefore, failed and was dismissed. It was a case where the order of the Lahore High Court granting bail mainly on the ground of two affidavits filed by the alleged eyewitnesses was upheld.
(iii) In the third case (1983 SCM R 15), the petitioners sought leave to appeal against the dismissal of their bail application by the High Court for offence under section 148/302/307/324/365/451/149, P.P.C. The F.I.R. Was lodged by one Muhammad Elyas (P.W.) who also suffered as many as 10 injuries during the incident out of which three were incised wounds. The only ground urged by the learned counsel for the petitioners was that the onl' witness mentioned in the F.I.R., namely, Nasrullah (P.W.) has filed an affidavit that he had not seen the occurrence. Hon'ble Supreme Court, dismissed the petition with the observation that "Even if it be assumed that he had not seen the occurrence it is admitted that Muhammad Ilyas, the complainant in the case, who is also an eye-witness, would support the prosecution case". As is in the present case, the complainant has also filed an affidavit, this authority of the Hon'ble Supreme Court may also be pressed into service.
12. The matter may, perhaps, be looked into from Islamic point of view as well. The Quranic law of crime and punishment treats the offence of intentional murder or muredr without justification and
(ii) incidental murder or murder by mistake ({{ARABIC TEXT}}) and (iii) causing injury, both simple and grivous, as compoundable. In the case of murder without justification there is prescribed death penalty but it can be pardoned by the heirs of the deceased, with or without compensation.
For intentional murder {{ARABIC TEXT}} reference may be made to Verse 178 of Surah II: Al-Baqarah of the Holy Qur' an, which reads as under:- {{TABLE}}
178. 0 ye who believe ' The Law of equality 182 is prescribed to you In cases of murder: 183 And a Mercy From your Lord.
After this whoever Exceeds the limits Shall be in grave penalty.
13. There is, therefore, an exception to the rule which is also provided in the same verse (2: 178) of the Holy Qur'an that if the heirs of the deceased grant pardon to the offender or receive the ransom (Diyat) in lieu of murder, the offender may be relieved of death penalty.
14. In the case of incidental murder or murder by mistake, there is no death penalty. The culprit is, however, liable to the payment of blood-money (Diyat: -%.*I.1) to the heirs of the deceased. Reference may be made to verse 92 of Surah IV Al-Nisa of the Holy Qur'an, which reads as under:- {{TABLE}}
92. Never should a believer Kill a Believer; but (If it happens) by mistake, 611 (Compensation is due); If one (so) kills a Believer, It is ordained that he Should free a believing slave, j.1"r-"-5 And pay compensation To the deceased's family, J.)3.1.1460)1 Unless they remit it freely. If the deceased belonged 0 To a people at war with you, y' and he was a Believer, f The freeing of a believing slave (Is enougn). If he belonged 643 t+.46, Cy to a people with whom '// Ye had a treaty of mutual o, c)
Alliance, compensation should e..Lml 6!o ok.e.X.; Be paid to his family, And a believing salve be freed. For those who find this Beyond their means, (is prescribed)
A fast for two months 1/ Running: by way of repentance To Allah: for Allah hath All knowledge and all wisdom.
15. In the case of culpable homicide not amounting to murder, the offender is liable to pay Diyat Mughallazah (heavy amount of blood money) to the heirs of the deceased.
16. For causing injury, retaliation ({{ARABIC TEXT}}) is provided as penalty. Reference may be made to Verse 48 of Suran V Al-Maida which reads as under:-
17. {{TABLE}}
48. We ordained therein for them.754 "Life for Life, eye for eye, Nose for nose, ear for ear, Tooth for tooth and wounds Equal for equal," But if anyone remits the retaliation ' If a person roots out or dislocates the teeth of another he incurs retaliation; for it is said in the Qur'an "A tooth for a tooth".
18. Joseph Schacht, an authrority in the West on Islamic Law in his work "An Introduction of Islamic Law" (1964 Edn. London, pp. 177-78) states: "The approach of Islamic law to the Jinayat i.e, homocide, bodily harm, and damage to property, is thoroughly different. Whatever liability is incurred through them, be it retaliation or blood-money or damages is the subject of a private claim (hakk adami); there is no prosecution or execution ex officio not even for homicide, only a guarantee of the right of private vengeance, coupled with safeguards against its exceeding the legal limits; pardon (afw) and amicable settlement are possible, but repentance has no effect. There is no tendency to restrict liability here, and the whole attitude of Islamic Law is the same as in its law of property (See also above, pp. 158, 160). The concept of bona fides plays no prominent part, but there is a highly developed theory of culpability which distinguishes deliberate intent, quasi-deliberate intent, mistake and indirect causation."
19. In the matter of grant of bail, no doubt; the principles have been thereto enforced by the superior Courts of Pakistan as laid down under sections 497 and 498 of the Criminal Procedure Code which are based on English Common Law. In the changed circumstances, as warranted by Article 2-A of the Constitution, the Courts are now expected to apply the principles of Islamic laws more often, including the question of the grant of bail. If the main offence is compoundable in the light of the Qur'an and Sunnah, consideration of the affidavits of the heirs of the deceased, or the injured, as the case may be, or the witnesses, filed in a bail matter, should be weighed in favour of the accused as an additional ground for the ground of bail, unless it appears that the said affidavits have been procured by illegal means or are tainted by unlawful consideration.
20. It is heartening to note that our superior Courts, and particularly the Honourable Supreme Court of Pakistan, have been consicous for quite some time of the need for application of the Islamic Principles of Jurisprudence to a situation about which our statute law is silent. In this respect, I may, in the first instance, refer to the following observations of the Hon'ble Supreme Court in Muhammad Bashir v. The State (PLD 1982 SC 139):- "Superior Courts in Pakistan have, in a large number of cases, applied Islamic teachings and philosphy, when the statute law is silent about a situation, the field is unoccupied so to say, a statutory void is to be filed, or the Court has discretion to follow one of the several courses, one of which is more in accord with Muslim Jurisprudence."
21. In the above cited case reference has been made to the case of Mst. Hameeda Begum v. Mst.
Muradan Begum (PLD 1975 SC 624) wherein a similar view was taken by the Honourable Supreme Court. In fact, the -said aspect, as pointed out above, was dealt with in more detail by a learned Single Judge of the Lahore High Court, (now, of Supreme. Court) in the case of Haji Nizam Khan v.
If a person wilfully cuts off the hand of another, his hand is to be cut off in return, because it is so said in the Qur'an (5:4). If the eye remains as it is but the faculty of seeing be destroyed, retaliation is to be inflicted, as in this case equality is possible by destroying the sight of the offender's corresponding eye with a hot Additional District Judge, Lyallpur and others (PLD 1976 Lahore 930) under the heading "Trend of Superior Judiciary of Pakistan qua norms/Rules of Muslim Jurisprudence and Law, in situations not otherwise specially provided for" in paras. 40 to 52 of the report; and "Duty of the Judiciary in Pakistan, under the Constitution, regarding "Fundamental Principles and Basic Concepts of Islam', including' the accepted Islamic Judicial norms and philosophy"- in paras. 53 to 60 of the said Report. Reference may also be made to, amongst others, the judgments in the cases of Abdur Rehman Mobashir v. Amir Ali Shah Bakhari and others (PLD 1978 Lahore 113); A.M. Qureshi v. Union of Soviet Socialist Republic and another (PLD 1981 SC 377) and the recent Qaiser Ali's case) (PLD 1986 Kar.489)
22. It is to be noticed that the Hon'ble Supreme Court in .The case of Muhammad Bashir, having noticed the acceptance of payment of the compensation by parents of the deceased and they having pardoned the appellant/convict under section 302, P.P.C. Reduced the sentence of death to imprisonment of life, as a mitigating circumstance, in addition to the grounds of mitigating sentences recognized so far by our Superior Courts.
23. I may also refer to a judgment of the Azad J & K High Court, in the case of Sabir Hussain v. State (PLD 1986 Azad J&K 207), wherein a convict under section 302, P.P.C. And sentenced to be hanged till death, was held entitled to be acquitted from the charge of murder on an application under section 561-A, Cr.P.C., in view of the forgiveness given to the petitioner by the heirs of the deceased, held that "the rejection of compromise and ordering the execution of the order of sentence will be contravening the provisions of the Holy Qur'an". It is noticeable that the petitioner in that case was tried under the ordinary law (Penal Code) and not under the Islamic Penal Laws Act of 1974.
Notwithstanding it, the High Court acquitted the petitioner after conviction and sentence on receiving compensation by the heirs so as to achieve the object of the Command of Almighty Allah. This furnishes an example of the required judicial activism.
24. Extending the principle laid down by our Supreme Court, as aforesaid, particularly in Muhammad Bashir's case to the question of the grant of bail before me, I feel that there seems to be no impediment in my way to the application of the above rule to a bail matter. When the rule can be made applicable in the case of a convict under section 302, P.P.C. And sentence to death can be converted to life imprisonment on the basis of compromise and receipt of compensation by the heirs of the deceased it may, then, very well, in my humble view, be pressed into service for the grant of bail, which is of a lesser degree in consequence, calling for "further inquiry" in the matter.
25. Learned A.A.-G. Seemingly did not appear to be opposing the application. He, however, half- heartedly mentioned a case reported as Allanditto and another v. State (PLD 1984 Kar.223) dismissing the bail application by a former Chief Justice of this Court. In my view, the above case seems to be distinguishable for the simple reason that in the said case it was held that where the identity of witnesses swearing affidavits is not established, and the affidavits are sworn before Oath Commissioner (who is not an oath-giving authority under the Criminal Procedure Code), then by way of abundant caution a Magistrate should not act upon such affidavits.
26. In the present case first three affidavits of the complainant and two eye-witnesses were sworn before the Sarishtadar and Commissioner for taking affidavits, District and Sessions Court, Jacobabad, where the case of the accused is under trial and the 4th affidavit of 3rd eye-witness has been sworn in before the Commissioner for taking affidavits in this High Court at Sukkur. The deponents of these affidavits have been identified not only by their Advocates, but also by the Investigating Officer and the leanred A.A.-G. Has also expressed his satisfaction about their identification. Furthermore, the Supreme Court authorities, referred to hereinabove, were not cited before the learned Chief Justice.
27. The complainant on whose instance the case was registered against the accused, is himself disowning the prosecution case. No statements of the complainant or the eye-witnesses were recorded under section 164, Cr.P.C. Before a magistrate. Only statements of the complainant, the eye-witnesses and the Mashir have been recorded under section 161, Cr.P.C. By the police. There seems to be two sets of the statements of the complainant and the witnesses; one before the police and the other before a Judicial Officer of the Sessions Court and the High Court. To my mind, the affidavits sworn in the Sessions Court and this Court are to be given preference over a statement recorded by the police under section 161, Cr.P.C., at least for the purpose of the present application. The conflict may, however, be resolved at the time of trial. For the present there seems to be a case for "further inquiry" in the matter. Reliance is placed on the following extract from para. 22 of Muhammad Abbas and another v. The State (PLD 1988 SC (AJ&K) 14), which reads as under: ".. Where a person, on the material made available cannot safely be held liable for the offence charged, it would be said that sufficient evidence within the meaning of section 497(2), Code of Criminal Procedure, is not available to connect the person with the offence charged but there exist reasonable grounds for further inquiry to connect the person with the offence charged."
28. But, the matter does not conclude here. The application before me is for anticipatory bail. In Murad Khan's case, (PLD 1983 SC 82), it has been observed that for grant of bail before arrest the Court must be satisfied with regard to the condition of mala fides of intended arrest. In another decision, Zia-ul-Hassan v. State (PLD 1984 SC 192), the Honourable Supreme Court appears to have made it a condition that the allegation of mala fides must be specifically stated in the application.
However, in a later case, Jamaluddin v. The State (1985 SCM R 1949), the Honourable Supreme Court while accepting the observation of the learned Sessions Judge, as to mala fides in a matter of bail before arrest, that "they (the applicants) are entitled for concession of bail on the ground that the deceased has not implicated the present applicants/accused in commission of the offence of this case" appears to have mellowed down the stringency of "Court's satisfaction" about mala fides Reading both the authorities together, it seems to imply that "the Court's satisfaction", in its strict sense, as to the proof of mala fides is not required strictly at H the time of bail. If there is specific allegation which leads to a circumstance by which mala fides may be inferred prima facie, the same would be sufficient for granting bail before arrest on that account. In other words, it will suffice if there is male fides, prima facie. In the present case an allegation has been clearly made by the complainant that he had not given the names of the accused/applicants to the police and the police is inimical towards the accused/applicants, therefore, there seems to be prima facie case of male fides. Reliance is also placed on Raza Muhammad Sial v. The State (1988 SCM R 1223).
29. For the reasons aforesaid, the interim by me on 22-8-1988 to applicants is confirmed in favour of applicants on the same terms and conditions. Applicants are directed to associate with the police investigation in all respects and their failure in this regard shall entitle the prosecution to apply for cancellation of the to the applicants by this Court.
30. Before parting with the case, it seems beneficial to add that in the current Constitutional position, when the Objectives Resolution presented to the Constituent Assembly on 7th March, 1949 and approved on 12th March, 1949, has now been incorporated as substantive part of the Constitution by President Order No,14 of 1985, as Article 2-A of the Constitution, the Courts in Pakistan will be acting within their jurisdiction conferred on them by the Constitution, subject, of course, to the limitations, as laid down in Chapter 3-A of the Constitution (added to the Constitution by President's Order No,l of 1980), to decide cases laid before them, in accordance with the mandate of Almighty Allah and His Prophet as laid down in the Holy Qur'an and Sunnah, and, more particularly, seek guidance from the Islamic principles in the field presently unoccupied by statute, in a given case. It will be a step forward towards the fulfilment of a long cherished goal of Islamisation of Pakistan Laws, and reformation of its society on Islamic lines, for which the country was carved out.