' The present bail application on behalf of petitioners Khurshid, Taj Muhammad, Ghulam Mohammad, Ali Mohammad and Islamuddin, who are being tried on charges under sections 302/307/149 P. P. C. In the Court of the Joint Civil Judge and the First Class Magistrate, Nawabshah, has been filed by Mr. Mohammad Hayat Junejo.
' I had heard Mr. Hayat Junejo for the applicants, Mr. Sulleman Memon for the State and Mr. G. M.
Qureshi for the complainant on 15-10-1975 and 20-10-1975 but the matter remained part-heard as the Additional Advocate-General wanted to obtain police papers in the case. The application was then fixed on 24-10-1975 when Mr. G. M. Qureshi also appeared as private counsel for the complainant. I have heard him also.
2. The facts leading to the case are that applicant Salamuddin is the owner of a Pan Bin Cabin at Market Road in the town of Nawabsbah and he used to call deceased Mohammad Ishaque as "Sala" (wife's brother) and such a taunt used to be retorted by the deceased by calling accused Salamuddin as "Mamoon" (father's wife's brother). The deceased Mohammad Ishaque and the complainant who also has the same name had gone to Issarpur, a locality of Nawabshah for private tuition at 9-00 p.m. And were returning at 11-30 p.m. When the deceased and the complainant reached near the house of one Saghir Hussain, the 5 applicants appeared from the opposite side when Salamuddin again addressed deceased Mohammad Ishaque as "Sala" whereupon they exchanged abuses and immediately accused Salamuddin took out a knife from the folds of his trousers and stabbed deceased Mohammad Ishaque in front of his chest. In the first information report the following sentence goes on to state that the others (applicants other than Salamuddin) gave fist blows to deceased and complainant Mohammad Ishaque. The F. I. R. Further recites that accused Salamuddin gave a knife blow to complainant Mohammad Ishaque and then all the accused/applicants pounced upon the deceased and the complainant. Cries are stated to have been raised which attracted among others Mohammad Yousuf Malik and Munir Ahmed and all the accused applicants on seeing the witnesses went away. A report was lodged at Nawabshah police station within an hour by complainant Mohammad Ishaque.
' Almost at the same time accused Salamdddin who is also called Abdul Salam also lodged a report at the same police station alleging that he had been beaten by the deceased and complainant Mohammad Ishaque. After the investigations, the 5 accused/applicants have been sent up for trial but no evidence has yet been recorded.
3. Mr. Hayat Junejo, the learned Advocate for the accused-applicants has not pressed the application for .Accused Salamuddin and he stated before me that the only ground which he could urge in support of grant of bail to Salamuddin was that he received no less than 13 injuries.
However, he stated that the question in regard to the exercise of the right of private defence could hardly be agitated at the present stage and therefore, he did not press the application in so far as applicants Salamuddin was concerned. In regard to the remaining four applicants namely Khurshid, Taj Mohammad, Ghulam Mohammad and Ali Mohammad, the learned Advocate has strenuously urged that even on the present material, there appears to be no reasonable ground to believe that these 4 accused/ applicants were guilty of the offence for which they were being tried.
In such context the learned Advocate further stated that the medical evidence in regard to deceased Ishaque and complainant Ishaque showed that the former had 3 incised wounds and there were no marks of any injuries to indicate that the remaining 4 applicants had given any fist or kick blows. It has additionally been contended that it was extremely improbable and unworthy of credence that while accused Salamuddin bad 13 injuries on his person none of the remaining 4 accused had any injury. This circumstance, according to the learned Advocate clearly showed that the remaining 4 applicants were not present on the spot.
' On the other hand, Mr. Sulleman Memon relied on the observations of the Suppreme Court in the case of Mohammad Aslam and others v. The State (1) and stated that this was a premature stage for consideration of the question of bail as the remaining 4 applicants would be liable by reason of section 149, P. P. C. I had specifically asked Mr. Sulleman Memon to give an explanation, if he could, in regard to 2 circamstances ; namely, that the admitted position was that Salamuddin had taken out a knife from the fold of his trousers, so that even if the remaining applicants are shown to have been present, they may not be knowing in regard to Salamuddin having a knife in his possession. I had also asked the learned Additional Advocate-General as to the explanation in regard to the absence of any marks of injuries given by kicks and fists blows and also the absence of any marks of injuries on the remaining 4 accused/applicants. In regard to the first question the learned Additional Advocate-General stated that since all the accused were inter-related therefore, they should be presumed to be animated by common object and in regard to the second question, the Additional AdvocateGeneral found it convenient to state that the Medical Officer as well as the Police Officer preparing inquest report may not have marked the injuries given by kicks and fists blows. In regard to the absence of injuries on the remaining 4 applicants his explanation was similar. I must state that mainly the contention of the Additional Advocate-General was that the application was premature and was liable to be rejected on that ground alone.
' Mr. G. M. Qureshi for the complainant Mohammad Ishaque on the one hand has adopted the arguments advanced by the Additional Advocate-General and on the other hand he set up a case on its variance by stating that the remaining 4 applicants may only have surrounded the deceased and the complainant. Mr. G. M. Qureshi has also placed a copy of the counter-report by accused Salamuddin wherein the names of Ali Mohammad and Taj Mohammad have been mentioned but I must state clearly that even in this report, the admissibility whereof is open to question, Salamuddin had mentioned the names of Ali Mohammad and Taj Mohammad applicants as the persons who had come on the cries of Salamuddin accused at the scene of offence.
4. I have given very serious thought to the question of powers of this Court in the matter of grant of bail in murder cases at an initial stage. After the decision in the case of Moha wrzad Aslam and others v. The State their Lordships of the Supreme Court in the case of Choudhry Abdul Malik v. The State (2) had observed with clarity that no dictum or judgment of the Supreme Court has created a hurdle in the grant of bail and each case has to be decided on its own particular facts and circumstances. Ultimately, the onus lies on the prosecution to show that there are reasonable grounds {{FOT NOTE}}
(1) P D 1961 SC 539 (21 PLD 1968 SC 349 {{FOT NOTE}} ' in the case which if not rebutted would lead to the inference of guilt of accused persons. Again in the case of Nisar Ahmed v. The State (i) their Lordships of the Supreme Court rather reiterated the principles governing grant or refusal of bail, although grant of bail at an early stage or even anticipatory bail was deprecated, but simultaneously their Lordships also observed that the discretion had to be exercised in a judicial manner, with due regard to the circumstances of each case, without any propensity to unnecessarily jeopardize the liberties of persons who are accused of criminal offences. In another case of Mir v. The State (2) their Lordships came to the conclusion that in rejecting the bail application the High Court had examined the statement of only one witness and left the statements of two witnesses out of consideration and therefore, directed the High Court to consider all the material placed before it by the prosecution in the light of the well laid principle that law is not to be stretched in favour of the prosecution even for the purpose of grant of bail and if any doubt arises an accused is entitled to it. In the case of Mohammad Yaqoob v. The State (3) accused were released on bail although the facts disclosed that in spite of being armed with knife they did not use the same and only part played by the accused was to have raised `Ialkara'
There is a plethora of case-law on the subject in regard to bail in murder cases but summing up the conclusions, I must say that in order to resist the grant of bail to particular accused, the mere fact of his being involved in a case of murder or the mere allegation of his being a member of the unlawful assembly would be insufficient. A member of an assembly causes the death would not be sufficient to raise even a conclusion that bail must be refused because allegation of commission of murder is mad or the accused is named in the F. I. R. As a person concerned with the crime. The words used by the Criminal Procedure Code are that bail has not to be granted if there are "reasonable grounds to believe" that the accused is guilty. These words indicate that not only the grounds should be reasonable but the same should also lead to belief of an assumption of guilt of the accused that there are grounds which are reasonable. Such words are not a substitute for mere suspicion. Belief though short of proof Is something higher than suspicion or allegation.
5. In the light of the principles laid down above a few facts are effective, significant and outstanding in this case. In the first information report as well as statements of witnesses it is unanimously alleged that 4 accused/applicants besides Salamuddin pounced upon deceased Mohammad Ishaque and complainant Mohammad Ishaque and gave them kicks and B fists blows. No marks of any kicks or fist blows were found on the person of the deceased or the complainant either by the police or the Medical Officer. The explanation offered by Mr. Sulleman Memon and Mr. G. M. Qureshi in regard to the carelessness of both these public servants, besides being unfounded has yet to be established ; and I do not know how any improvement in the prosecution case could be made hereafter. Additionally, the F. I. R. Itself states and so do the witnesses state, that there was mutual grappling and quarrel between the accused party on the one hand and the complainant and the deceased on the other. All the same, strangely, while Salamuddin received 13 injuries none of the remaining four applicants received any injury. I also cannot overlook the circumstance that the knife with which the deceased and the complainant received the injuries {{FOT NOTE}}
(1) PLD 1971 SC 175 (2) PLD 1972 SC 272
(3) 1971 P Cr. L J 106 {{FOT NOTE}} ' was hidden in the folds of the trousers of Salamuddin. It is reasonable to assume, if at all the remaining four accused/applicants were present, that they may not have known about accused Sitlamuddin being in possession of a knife. Even in that case the main object within the meaning of section 149, P. P. C. Could hardly be murder. Mr. Sulleman Memon, and Mr. G. M. Qureshi, who has mainly adopted his arguments, have stated that since all the accused belong to the same family, that by itself is sufficient to raise an inference that the remaining 4 applicants/accused must have known about the presence of the knife. I can hardly attach any importance to such an argument.
Admittedly, none of the remaining 4 applicants had any weapon with them.
6. In these circumstances, I reject the bail application of applicant Salamuddin but admit applicants, Khurshid, Taj Mohammad, Ghulam Mohammad and All Mohammad to bail in the sum of Rs, 20,000 with P. R. And one surety in the like amount to the satisfaction of the Sessions Court at Nawabshah. I may however add, a caution, that whatever has been stated by me on the factual aspect of the case is by its very nature tentative and I also express a desire and a hope that the Courts below while determining the question of guilt of the accused finally, shall keep these observations out of consideration and bring to bear their own independent appreciation of the facts which come on record.