1. This bail application has been filed on behalf of Allah Wasayo son of Allah Rakhio by caste Mahar who is facing trial for offence under sections 436, 427, 429, P.P.C. Being Crime No.37/93 of Police Station Kashmore, District Jacobabad. The case against the applicant is pending in the Court of 1 Additional Sessions Judge, Kandhkot. An application for bail was moved before the trial Court on behalf of the applicant but the same was rejected by the learned Additional Sessions Judge vide his order dated 16th August, 1993 and being aggrieved by that order he has filed this application before this Court.
2. The brief facts of the prosecution case are that on 8-7-1993 at about 7-00 p.m. Complainant Muhammad Umar Shaikh lodged F.I.R. At Buxapur Police Station stating therein that the accused Allah Wasayo (present applicant) alongwith co-accused Nazroo, Hadoo, Nihal and Wahidoo all by caste Mahars came near to their houses which are situated on the land which they cultivate and all of them took out match boxes from their pockets and set on fire Deras of Wheat (Buh) which was lying near the houses of the complainant party. It is the case of prosecution that all the accused were restrained by the complainant not to set the Deras on fire as the same were near their houses and as rough wind was blowing at that time there was every likelihood that their houses may catch fire which may result in huge loss. However, all the accused set the Deras on fire and accused Allah Wasayo told them that as they had not shifted from the land they will not be spared. The houses of the complainant party as a result of the action of the accused caught fire and all the houses were burnt and the animals and other belongings of the complainant party were also burnt which resulted in huge loss to the complainant party to the extent of about 2 lacs as stated by the complainant in the F.I.R. The complainant has further stated in the F.I.R. Thatst applicant Allah Wasayo told them that they were, setting the wheat Buh on fire for the purpose of burning their houses. The complainant has further stated that the accused further told them that had they not been present in their houses at that time they would have directly set their houses on fire.
3. The main contention raised by the learned counsel for the applicant is that the case is false, due to enmity and that there is a delay of 8 hours in lodging of the F.I.R. He has further contended that section 436, P.P.C. Is not applicable as the accused are not alleged to have directly set the house of the complainant on fire but they had only set on fire the raw material (Buh) which was lying there.
4. The learned counsel appearing on behalf of the State Mr. Abdul Sattar Chohan has stated that the names of the accused including the present applicant are mentioned in the F.I.R. He has further contended that as per the investigation papers the property and the houses of the complainant party have been completely destroyed on account of fire. He has further contended that the incident had taken place during day time at about 11-00 a.m. As such there can be no mistake in identifying the real culprits. According to him the present applicant alongwith others had committed offence punishable under section 436, P.P.C. Which is punishable with imprisonment for life or with imprisonment upto 10 years as such the case of the present applicant is covered under the prohibitory clause of section 497, Cr.P.C. He has further contended that the case has not yet proceeded and this is yet a premature stage for consideration of the grant of bail to the applicant.
5. The offence of mischief when committed by fire or explosive substance with intention to destroy house etc. Has been defined under section 436, P.P.C. Which reads as under:-- "Whoever commits mischief by fire or any explosive substance, intending to cause or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property shall be punished with imprisonment for life or with imprisonment of either description for a term upto 10 years and also be liable to fine."
6. It is thus clear that any one who commits mischief by fire knowing it to be likely that he will thereby cause destruction of any building which is used as a human dwelling or as a place for custody of property will be liable to punishment under section 436, P.P.C.
7. Keeping in view the above definition it is clear that the act of the accused in this case by even setting the wheat "Buh" Deras which were lying near the houses of the complainant party was likely to cause destruction, the accused would be liable for offence under section 436, P.P.C. Particularly when the complainant party stopped the accused not to set the Dera on fire which was near their houses and due to rough wind was likely to damage their houses and other property, but the accused in spite of that set the Buh on fire which clearly showed that he not only had the knowledge but intention to commit mischief by fire.
8. It has been held in PLD 1978 SC 256 that while deciding whether the bail is to be allowed or rejected on the basis of the evidence produced by the parties, the Court is bound to make tentative assessm ent of its evidentiary value and section 497, Cr.P.C. Does not in terms contain any restrictions on Court's power to assess evidentiary value of material placed before it. The Courts however, have to refrain directly or indirectly from giving any conclusive finding on the question of the guilt or innocence of the accused. It has been further held that even under section 497(1), Cr.P.C. In the case of an offence punishable with death or transportation for life the mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of the Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such offence.
9. Reasonable grounds under section 497(1), Cr.P.C. Have been held to mean grounds which appear to reasonable man and which conned the accused with the crime. It has been held "Grounds" word of higher import than the word "suspicion". Bail is to be refused where reasonable grounds exist tending to connect the accused with the crime. It has nevertheless been 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 the accused's guilt or innocence. It is nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist reasonable grounds upon which its belief can be founded, to look at the material placed before it by the investigating agency and to be prima facie satisfied that some tangible evidence has been offered which, if left unrebutted, may lead to inference of guilt before it can come to the conclusion that its discretion no longer exists. It has further been observed by superior Courts that no Judge can prima facie satisfied with the material produced by the prosecution if left unrebutted, may lead to the inference of guilt against the accused unless the Judge makes a tentative assessment of the evidentiary value of the material placed before them. Similarly no Judge can be satisfied even prima facie that the evidence produced by the prosecution does not lead to inference of guilt against the accused unless he makes a tentative assessment of the material produced before him. Placing reliance on cases reported in PLD 1962 SC 495 and PLD 1968 SC 349 and also keeping in view the principles as laid down in PLD 1978 SC 256, on the basis of tentative appreciation of evidence, I am not inclined to grant bail to the accused at this stage as the facts of this case show that the incident had taken place during day time, the name of applicant appears in the F.I.R., the houses of the complainant party have been burnt and a damage to the extent of Rs. Two lacs has been caused and nothing has come on the record from the evidence placed before me that there exists any enmity between the parties to falsely involve the present applicant in the case. Accordingly the bail application is dismissed.
10. I had dismissed this bail application by a short order on 17-10-1993 and there are the reasons for the same.