' The applicants Nizamuddin s/o Mehboob All Mastoi and Roshan All s/o Rasool Bux Mastoi (hereinafter referred as the applicants) have applied for grant of bail in Crime No,111/93, lodged by one Ghulam Muhammad (hereinafter referred as complainant) on 18-10-1993 at 05-00 hours at Police Station 'A' Section Nawabshah under section 364/34, P.P.C. Read with section 302 of Qisas and Diyat Ordinance, 1991.
2. The prosecution story, as narrated by the complainant in the F.I.R., is that on 12-10-1993 the complainant was standing near Old Naka Sakrand Road along with Ghulam Hussain, Abdul Hakeem, Ghulam Qadir (hereinafter referred as the deceased or the complainant's brother). At about 10-30 hours, the applicants and-two other unidentified persons came there. The applicant Nizamuddin said to his brother that they had some work with him. As the deceased had friendly terms with the applicant so he accompanied with him. When he did not turn up till sunset, the complainant went to the applicants and asked them about his brother, but they replied that the deceased had left for his house in the evening. In spite of his best possible efforts in his search, the complainant could not find any clue of his brother. Hence he lodged the F.I.R. After about six days against the applicants and two other persons showing his doubt that they might have killed his brother Ghulam Qadir. The applicants were arrested soon after the report was lodged on 18-10- 1993 and on their pointation, as alleged, the dead body of deceased was recovered within one hour of their arrest on the same day. On 27-10-1993, the crime weapon (iron hammer) was also secured by the, police from the applicant/accused Nizamuddin. After usual investigation, challan was submitted against one Mehboob, All (shown as absconder) and the two applicants. Co-accused Mehboob All was granted interim pre-arrest bail on 2-1-1994 which was confirmed on 12-1-1994 but the bail applications of the applicants were dismissed on 9-4-1994 by the learned IInd Additional Sessions Judge, Nawabshah. Hence the applicants approached this Court for their bail.
3. Before touching the arguments of the learned counsel for the applicants and the State, I would like to deal with one of the observations made by the learned IInd Additional Sessions Judge, namely, Mr. Pirbhulal U. Goklani, Nawabshah in the following words:- " It may be observed that provisions of section 497 (1) are discretionary and attending circumstances cannot be lost sight of."
' The impression which can be gathered from the above lines of the order passed by the learned Additional Sessions Judge seems nothing except that the learned Judge considers it to be his discretion to refuse or grant the concession of bail to an accused merely on the basis of circumstances as a carte blanche. Such an impression is totally misconceived if the said impression has been drawn from certain sentences found in section 497, Cr.P.C. Such as:-- "may be released on bail; ' may direct that any person be released on bail or at the discretion of such officer or Court on the execution by him without sureties etc."
The word "may" used in section 497, Cr.P.C. Encircles several conditions and the Courts are required to pass orders on bail applications strictly within the ambit of those conditions. If the word "discretion" used in section 497, Cr.P.C. Had been free of all kinds of limitations, then most of the investigating officers or the Courts could misuse the same by releasing the criminals or the offenders and dangerous criminals by treating the so-called discretion as their exclusive inherent powers, only on execution of bonds even without sureties. It is, therefore, necessary to point out that the Courts are bound to exercise their discretion judicially with due care and caution by taking into consideration all the facts, circumstances and material before them brought by the prosecution and the accused. The Courts must not treat the prosecution story to be sacrosanct or a gospel truth or the version of the accused to be a bundle of lies. But it does not mean that the Courts should probe into the case in detail at the bail stage. The Court can make only a tentative assessm ent at the bail stage which should neither damage the case of the prosecution nor of the accused. Any damaging remarks given by a Court at bail stage can never be appreciated.
' The contentions of the learned counsel for the applicants to grant concession of bail can be summarised as under:--
(i) there is unexplained delay of six days in lodging the F.I.R;
(ii) there is no eye-witness in this case;
(iii) recovery of crime-weapons was made after nine days of the arrest of the accused;
(iv) co-accused Mehboob All is the father of applicant Nizamuddin and brother of applicant Roshan Ali. He has been granted pre-arrest bail by the trial Court. If he had been really involved, his name could also appear in the F.I.R. As the parties knew each other. Therefore, false implication of the two applicants cannot be ruled out especially when the F.I.R. Was lodged after a delay of six days; and
(v) the mystery of two unidentified accused mentioned in the F.I.R. Does not appear to have been solved even in the challan so that anyone could be booked as and when required, wished or desired by the prosecution.
5. After going through the orders of the learned Hind Additional Sessions Judge, I for that although he confirmed the interim bail of co-accused Mehboob Ali yet he could not point out any dent in the submissions made on behalf of the applicants. Column No,5 of the F.I.R. Requires the reasons of delay to be mentioned by the police official who registers the F.I.R. The words written in that column (as translated in English from Sindhi) that (Report was) "lodged on arrival of the complainant" do not meet the requirements of Column No,5. Although the learned Additional Sessions Judge has tried to justify the delay by saying that the "delay prima fade stands explained, yet such claim could not be made, in the circumstances of the case without recording evidence".
' Similarly this aspect of the case cannot be ignored at the bail stage that if dead body of the deceased was recovered at the pointation of the applicants on the very first day of their arrest soon after lodging the F.I.R. Within one hour, then the recovery of crime weapon could not have taken nine days from the same applicants. If the accused had become ready to point out the dead body within one hour, their statements under section 164, Cr.P.C. Could also be recorded to give strength to the prosecution case.
6. It seems that either the I.O. Has concocted a story of recovery of dead body "within one hour" as claimed by him, soon after the recovery of the dead body or he joined hands with the accused persons. Therefore, he, not only, delayed in recovering the crime weapon but also ignored to get the statements of the accused persons recorded under section 164, Cr.P.C. With intentions to provide benefits to the accused and to damage the prosecution case. If the prosecution fails to prove the case against the accused persons on these grounds which have been pointed out in the above lines then the I.O. Would be directly responsible for the same and it would be the proof of his inefficiency or dishonesty for his future career.
7. The learned counsel has also contended for the applicant/accused Nizamuddin that he was entitled to the concession of bail on account of his tender-age which according to the school leaving certificate is about 15 years and his case was covered by the proviso of section 497(1), Cr.P.C. In this connection he has relied upon the cases of Muhammad Pervaiz Akhtar v. The State, Mehrullah and others v. The State and of Siraj Din v. Saghiruddin reported in 1986 PCr.LJ 1740; 1990 PCr.LJ 1291 and 1970 SCM R 30 respectively. However, I have not been convinced by the contentions made by the learned counsel because there are cases where bail has been refused to the accused even on this ground. Reference can be made to the case of Abbas v. The State 1979 PCr.LJ 421.
Notwithstanding to the fact that there are judgments apparently with contrary views but I am of the opinion that in such situations only those judgments be followed which are in conformity with the Holy Qur'an and the Hadith of the Holy Prophet Muhammad (peace be upon him) after the promulgation of Qisas and Diyat Ordinance, 1991, as the same was introduced in Pakistan under the banner of Islam. In Islam puberty is more important than the age. Any person who has attained puberty is to be treated adult and would be dealt accordingly. Moreover, I have no doubt in my mind that the wordings of the proviso of section 497(1), Cr.P.C. Are not mandatory in nature, therefore, no one can claim this concession of bail on such ground as a matter of right.
8. The learned counsel for the applicants/accused has drawn my attention to the fact that the Mashirs of recovery do not belong to the locality. Therefore, they cannot be relied upon on account of violation of section 103, Cr.P.C. Such points may or may not be treated very important for consideration of the trial Court at the time of final arguments after the conclusion of the case or at any other stage but not at the stage of bail except in special circumstances.
9. However, I agree with the contention of the learned counsel for the applicants that the collective result of delay of six days in lodging the F.I.R.; delay of nine days in recovery of crime weapons after the arrest of the accused; absence of eye-witnesses, absence of any statement of the applicants under section 164, Cr.P.C., implicating one known accused without mention of his name in the F.I.R.
Brings the case within the ambit of section 497(2), Cr.P.C. And, therefore, they are considered to be entitled for the concession of bail. But before passing any order regarding the amount of surety, I consider it necessary to make certain observations regarding the "Qisas and Diyat Ordinance, 1991" with certain references.
10. Prior to the revelation of the Holy Qur'an, the Law of Qisas (Retaliation) was totally inflexible during the period of Holy Moses and extremely flexible during the period of Holy Jesus the Christ. In the Old Testiment (claimed by the Jews to be Taurat as named in the Holy Qur'an) the Law of Qisas appears in the following words: "But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise? (Exodus 21:23-25)
"Whoever kills a man must be put to death. You are to have the same law for the anent and the native born." (Leviticus 24: 21-22)
"Show no pity. Life for life, eye for eye, tooth for tooth, hand for hand, foot for foot." (Deuteronomy 19:21)
' Contrary to the above inflexible Law of Qisas during the period of Holy Moses, the New Testament (claimed to be In as named in the Qur'an qareem), the teachings of the Holy Jesus were extremely flexible as is clear from the following: "You have heard that it was said: eye for eye and tooth for tooth. But I tell you: Do not resist an evil person. If someone strikes you on the right cheek turn to him the other also." (Matthew 5:38-39)
' These teachings are too flexible to be acted upon even by those rulers who claim to be the followers of the Holy Jesus and even it cannot be expected that common people of different countries attached with Christianity can agree to follow this law especially in the present days of material lust.
The law of Qisas revealed through the Holy Qur'an has controlled the abovementioned inflexibility and the flexibility with moderate elasticity as is clear from the underlined portions of the following verse of the Holy Qur'an:-- "We ordained therein for them: 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 by way of charity it is an act of atonement for himself. And if any fail to judge by (the light of) what Allah hath revealed, they are (not better than) wrongdoers." S.V.
45.
" 0 ye who believe! The law of equality is prescribed to you in cases of murder: The free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude; this is a concession and a mercy from Your Lord. After this whoever exceeds the limits shall be in grave penalty." (S.II 178).
"In the Law of Equality there is (saving of) life to you, 0 ye men of understanding ! That ye may restrain yourselves." (S. II. 179).
"Never should a believer kill a believer; but (if it so happens) by mistake (compensation is due): If one (so) kills a believer, it is ordained that he should free a believing slave, and pay compensation to the deceased's family, unless they remit it freely. If the deceased belonged to a people at war with you, and he was a believer the freeing of a believing slave (is enough). If he belonged to a people with whom ye have a treaty of mutual alliance, compensation should be paid to his family, and a believing slave be freed. For those who find this beyond their means, (is prescribed) a fast for two months running; by way of repentance to Allah: for Allah hath all knowledge and all wisdom."
(S. IV. 92).
11. Thus it is clear that with the rise of Islam by the revelation of the Holy Qur'an through the Holy Prophet Muhammad (peace be upon him) for the welfare of trodden humanly, the rights of legal heirs of the deceased were given priority over the right of the State in the cases of Qisas (Retaliation). Unfortunately, when Qisas and Diyat Ordinance was promulgated in 1991, its drafters, for the reasons best known to them, ignored all those important points which were part and parcel of this law as per real spirit of Islam especially which were concerned with the rights of legal heirs.
On account of this reason, the people who are well conversant with the spirit of Islam believe, that the present Oisas and Diyat Ordinance in its present form is like a body Moreover neither it protects the rights of legal heirs nor any alternate relief in case. The offence is not proved against the offender or the murderer is untraceable.
12. Islamic system of penology no murder case ends without providing relief to the legal heirs in accordance to their established Islamic rights. In "Abu Dawood", (one of the famous book containing sayings of the Holy Prophet (peace be upon him) four Hadiths are mentioned in the chapter dealing with the matters of Qisas in such situation. The summary of those four Hadiths is as under:-- "One Muslim was murdered in the area of the State. His legal heirs lodged their complaint before the Holy Prophet (peace be upon him). They were asked about the eye-witnesses of the murder.
Answer was that there was none. They were asked whether someone among the community of that area would be ready to give evidence. They answered that most of the people in that area were non-Muslims, hence no one would b- ready or to dare to give evidence. Hence fifty suspected persons of that community were selected to take oath that neither none of them had killed the deceased nor anyone of them had any knowledge about the murder of the deceased. They took oath with the result that the amount of Diyat, which was the right of legal heirs of the deceased, was paid by the Holy Prophet (peace be upon him) because, as appears from the wordings of the Hadiths, it was disliked by the Holy Prophet (peace be upon him), that the blood of the human being (means murder) be wasted."
Hence it is evident that in Islamic system no murder case comes to end unless legal heirs of the deceased get their rights, but in the present complicated system of Government. It is very difficult to act upon in similar manners to get the amount of Diyat from the heads of the State in each and every case of murder. However, in case. It becomes impossible to trace out the murderers. Then amount of Diyat can be deducted from the salaries of officials working in the area where murder was committed besides taking certain actions against them because they enjoy all kinds of facilities to establish law and order in their area and not for their failure to stop terrorism. They all are supposed to serve the public as public servants and not as god-fathers on this earth to be served by the public.
However, such legislation is beyond the jurisdiction of this Court because only the Parliament can bring such laws in the country to make the "Qisas and Diyat Ordinance, 1991" a perfect law of Islam in its real sense with the actual spirit of Islam for the welfare of trodden and aggrieved family of every deceased.
13. What fall within the jurisdiction of this Court, I have no hesitation to opine that:--
(i) the amount of surety, in case the accused is released on bail under section 497(2), Cr.P.C., should not be less than the amount of Diyat under section 323 of Qisas and Diyat Ordinance, 1991.
Although such amount is usually considered for the attendance of the accused yet in case the accused absconds this amount can be paid to the legal heirs of the deceased. It may be interesting to point out that every Government always protected its own rights in respect of the fiscal matters. For example under section 5(7) of Offences in Banks (Special Courts) Ordinance, the surety amount is not fixed less than twice the misappropriated amount for the purpose of bail of an accused but in the cases of murder of "human-beings" no such condition has been introduced; it has become a routine that the persons who stands surety generally approach the Courts after the accused absconds with application under section 514, Cr.P.C. For reduction of forfeited surety amount under one pretext or the other. It is within the discretion of Courts to allow or dismiss such application. As the number of such professional sureties is increasing alarmingly, hence it would be better to make it clear in the bail order, especially in Hudood and Qisas cases, that no such application would be entertained if the accused absconded or absented from the Court; and as it is the duty of the Court to satisfy itself about the solvency of the surety before accepting the same, hence in case it is proved that any Court has accepted the surety as a routine which was proved to be forged, then it may be treated that the said Court has not performed its duty as required by law.
It may not be out of place to mention that the surety amount is considered to be fixed for the presence of the accused but after the promulgation of Qisas and Diyat Ordinance in 1991, amount of surety be so fixed that it should not only cover the penalty if the accused absconds as well as the amount of Diyat as security but the same should not be in contravention of section 498, Cr.P.C.
14. These were the reasons that, keeping all these facts, circumstances, material on record and agreeing with the contentions of the learned advocate for the applicants that the case of the applicants falls within the ambit of further inquiry under section 497(2), Cr.P.C. (which means that nothing can be said about the innocence or the guilt of the accused at this stage), I had ordered on 2-8-1994) in my short order that:--
(i) the applicants be released on bail if each of them furnishes surety in the sum of Rs,150,000.00 (Rupees one lac fifty thousand) with P.R. Bond in the like amount to the satisfaction of the learned trial Court; and in case the accused absconded or absented no application under section 514, Cr.P.C. Would be entertained by the trial Court.
' The copy of this order be sent to all the Sessions Judges working in Sindh who are required to inform the concerned subordinate Courts dealing with the cases of Qisas and Diyat Ordinance, 1991, regarding the observations made in the above paragraphs.
THE END