QAISAR AHMAD HAMIDI, J.-A short summary of the facts will help to clear the points for determination.
2. Deceased Abdul Zaman alias Afzal was a cousin of Shah Zaman, Mir Zaman and Khani Zaman, all sons of Gul Zaman, the respondents No. 1 to 3. Complainant Muhammad Akbar is brother of deceased Abdul Zaman alias Afzal and both of them were rickshaw drivers. It is alleged that deceased Abdul Zaman alias Afzal had strained relations with respondents No. 1 to 3 and he had exchanged hot words with them in a marriage gathering one day prior to this incident. This unfortunate incident is the result of that petty quarrel. It is the case of the prosecution that on 26.7.1991 at about 5-30 A.M. Deceased Abdul Zaman alias Afzal had gone to Patel Para, Karachi, to fetch rickshaw for plying and when he reached lo a public latrine in Darband Bazar he was attacked by respondents No. 1 to 3 who were armed with lathis and Sarya (iron rod). The incident was witnessed by Muhammad Pervaiz, Hasan Gul, Chanzeb and Muhammad Rafique who had also come to get rickshaws as they too are rickshaw drivers. Deceased Abdul Zaman alias Afzal fell down and the respondent No. 1 to 3 then bolted away. Abdul Zaman alias Afzal who was still alive was taken to Jamshed Quarters P.S. By Chanzeb and others where he is said to have made dying declaration before Muhammad Safdar H.C. On the same day Muhammad Akbar, the complainant in this case was informed about this incident by one Ashraf. Muhammad Akbar rushed to Civil Hospital Karachi, where he found deceased Abdul Zaman alias Afzal lying in coma. On the same day Muhammad Akbar lodged FIR which was registered at Jamshed Quarters P.S. At 7-30 A.M.
Under section 325-334/34 P.P.C., as amended. On 27.7.1991 at 4-30 A.M Abdul Zaman alias Afzal died in the hospital and thereafter the police applied section 302/34 P.PC. After usual investigation the respondents No. 1 to 3 were sent up to stand trial. The respondents No. 1 to 3 applied for bail before Sessions Judge (East) Karachi, who vide order dated 7.1.1992 granted bail to them mainly for the following reasons.
"After going through the police papers I am constrained to observe that this is a case which smacks of dishonesty on the part of the police so much so that Ashraf who is the first informer was not examined by the police during investigation and the postmortem examination also did not take place. There is no medical report on the record to show about the nature of the injuries which the deceased had sustained when he was attacked. There are allegations of general nature in the statements recorded by the police, that three culprits attacked the deceased with sticks and iron bars. In these circumstances, the authority reported as Yar Muhammad Vs. Arif & others (1991 P. Cr.
L. J. 529-Karachi) cited by the learned counsel for the complainant is of no help to the prosecution, as the material available with the prosecution does not show as to which of the accused caused fatal blow to the deceased, therefore, respectfully following the law laid down in (i) Jaffar and others Vs. The State (1980 S.C.M.R. 784), (ii) Iqbal Ahmed Vs. The State (1980 S.C.M.R. 786) (iii) Amir Bux and another Vs. The State (1985 P. Cr : L.J. 2323 Karachi) and Ismail and 3 others Vs. The State (1983 P. Cr : L. J. 823 Karachi), the applicants/accused are admitted to bail in the sum of Rs.
100,000/- each (Rupees One Lac each) and P. R. Bond in the like amount."
2. Being aggrieved complainant/applicant has aded this application under section 497(5) Cr.PC, seeking cancellation of to respondents No.-1 to 3.
3. 1 have heard Mr. Muhammad Rafique Khanzada, learned counsel for applicant, Mr. Sarfraz Khan Tanoli, learned counsel for respondents No. 1 to 3, and Mr. Abdul Hakeem Bijarani, learned AAG for State. The learned AAG has supported the prayer of the applicant.
4. Mr. Sarfraz Khan Tanoli, learned counsel for respondents No. 1 to 3 has raised a preliminary objection about the competency of the application made under section 497(5) Cr.PC at this stage when the case is fixed before the trial Court for hearing. He has also endeavoured to show that in view of the rule laid down by the Supreme Court in Mst. Irshad Begum vs. Muhammad Afzal and another, reported in 1985 S.C.M.R. 1691, Akmal Masih and others vs. Salamat Masih and 4 others, reported in 1988 S.C.M.R. 918, The State vs. Rashid Ahmad and another, reported in 1988 S.C.M.R. 1129, Muhammad Ismail vs. Muhammad Rafique and another, reported in PLD 1989 S.C. 585 and Mian Dad vs. The State and another, reported in 1992 S.C.M.R. 1418, it would not be proper to cancel the bail of respondents No. 1 to 3, when the trial is about to commence. There is, however, nothing on record to show that the trial against respondents No. 1 to 3 has commenced or is about to commence.
5. No generalisation is possible in such matters as each case has its own features. I cannot do better than quoting the observations made by this Court in the case of Ghulam Rasool Vs. Khadim Hussain and others, reported in 1991 P. Cr. L J 241, which are as follows :-- Everything said in a judgment more particularly in a criminal judgment must be understood as having been said with reference to the facts of that particular case. This in fact is the view of the Supreme Court. There cannot be any generalisations on matters which primarily rest upon the exercise of discretion and any computerised treatment given to cases of similar nature with different facts is likely to frustrate the very purpose of exercise of discretion."
7. Again the above rule is not a rule of law and of course does not take away the powers of this Court under section 497 (5) Cr.PC, to interfere in suitable cases as undoubtedly this Court has powers to do so even of its own motion and in the absence of any application at all on a perusal of the record. It is, however, very difficult to lay down any hard and fast rule or to give an exhaustive list of all the circumstances in which an exercise under section 497(5) Cr. PC can be made.
8. I now address myself to the question, whether the respondents No. 1 to 3 were entitled to the grant -of bail on the basis of the material available on record. A glance to the order passed by learned Sessions Judge (East) Karachi, shows that bail was granted to respondents No. 1 to 3 mainly for the following reasons.
(i) That the investigation carried out by the Investigating. Officer was dishonest, in-as-much as Ashraf who had informed complainant Muhammad Akbar about the incident was not examined during the course of investigation.
(ii) That there was no medical report on record to suggest that deceased Abdul Zaman alias Afzal died an unnatural death.
(hi) That the evidence collected during the course of investigation did not show as to who amongst the three culprits caused fatal injury.
9. As regards the first ground which prevailed upon the learned Sessions Judge while granting bail to respondents No. 1 to 3, it may be observed that it was very sweeping remark and it seems to me to be unwarranted. There is nothing in the body of FIR which may even faintly suggest that Ashraf had in fact witnessed the incident. The relevant extract of the FIR which was recorded in urdu reads as follows:- {{URDU MISS}}
10. It will not be out of place to mention here that the incident was witnessed by four persons, namely, Muhammad Pervaiz, Chanzeb, Hasan Gul, and Muhammad Rafique, who too like deceased Abdul Zaman alias Afzal are rickshaw drivers and had gone to Patel Para for taking the delivery of rickshaw for plying them on hire. The record also shows that these persons had in fact taken deceased Abdul Zaman alias Afzal to police station and then to Civil Hospital, Karachi.
11. Besides the evidence of these four witnesses, there is also evidence of Muhammad Safdar H.C to whom deceased Abdul Zaman alias Afzal had given the names of respondents No. 1 to 3, while he was in semi-unconscious position. Prima facie this evidence can be taken as dying declaration, although the extent to which it should be believed can only be determined by the trial Court after the case proceeds.
12. The finding of the learned Sessions Judge about the medical report of deceased Abdul Zaman alias Afzal is again not born out from the record. Admittedly deceased Abdul Zaman alias Afzal was alive when he was taken to Civil Hospital Karachi. He was examined on the same day at 6-15 A.M.
By the Medico-Legal Officer who found seven injuries, all caused by hard and blunt substance, on his person. The nature of injuries Was, however, kept reserved as the injured was referred for X-rays examination. Such certificate is available on record. A separate certificate was then issued by Medical Officer, Jinnah Post Graduate- Medical Centre, Karachi, after deceased Abdul Zaman alias Afzal succumbed to his injuries. Since there was fracture of-the skull of deceased Abdul Zaman alias Afzal which is evident from the Ward case sheet, no post-mortem examination was considered necessary. It is thus obvious that mistakes upon mistakes were committed by the learned Sessions Judge while exercising his discretion in favour of respondents No. 1 to 3, which in my view appears to be reckless exercise.
13. Lord Coleridge rightly pointed out in Pex vs. Dickson, a case cited in Wills' Circumstantial Evidence, that, "That law does not demand that you should act upon certainties alone. ...In our lives, in and thoughts, we do not deal with certainties, we ought to act upon just and reasonable convictions founded upon just and reasonable grounds".
Again various tests have been laid down by various rulings of the High Courts and the Supreme Court for the grant of bail in cases falling within the prohibitory clause of section 497 Cr.PC, but it is universally accepted principle that every ruling in a criminal case governs its own facts.
14. Every erroneous decision is a miscarriage of justice and every miscarriage is derogatory to the reputation of the Judicature and detrimental to the common interest of society, and therefore, it is necessary to exercise such discretion with some restraint.
15. A point which was touched upon by learned counsel for respondents No. 1 to 3 during the arguments may now be dealt with. It is contended that the- High Court should be slow in exercising powers under section 497(5) Cr.PC. The answer to this contention is again provided in the case of The State vs. Mst. Shamim Akhtar alias Bharjai, reported in PLD 1992 Karachi 332, wherein it was observed :-- "No doubt, the power available to this Court under sub-section (5) of section 497 Cr. PC. Has to be exercised in extraordinary circumstances, but it is meant to be exercised in appropriate cases."
16. Unmerited grant of bail in cases of this nature is bound to shake the confidence of the litigant public in even handed dispensation of justice which may produce a sense of despair and frustration. In the circumstances mentioned above, I am satisfied that the learned Sessions Judge
(East) Karachi, had fallen into basic error while granting bail to respondents No. 1 to 3 in complete disregard of the specific prohibition of law contained in sub-section (1) of section 497 Cr.PC. As a result thereof the to respondents No. 1 to 3 is cancelled who should surrender before the trial Court forthwith. The Sessions Judge shall take necessary steps for remanding them to custody, if they fail to surrender before him within three days from the receipt of this order. The application made under section 497(5) Cr.PC, is accordingly allowed.
17. It is needless to add that the observations made above are tentative in nature and they should not influence the trial Court in any manner. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.