Dr. Sakhi Muhammad Bhutta, brother of Mst. Samina Bilqis, who was alleged to have been murdered on the night between 30th/31st December 1976, by her husband Major Karam Ilahi Zia (hereinafter mentioned as Major Zia), has filed this petition under section 497 (5), Cr. P. C. For the cancellation of his bail. Major Zia was admitted to bail by the learned Additional Sessions Judge, Lahore on 20-4-1977.
2. On 31st December 1976, Amjad Yousaf, younger brother of Major Zia, lodged first information report at Police Station Kahna at 1-15 a.m. In which he stated that his brother Major Zia had come on a month's leave, On 2942-1976, he forgot his service card at the bungalow of Haji Chanan Din at Gulberg, Lahore. On the evening of 30th December 1976, Amjad Yousaf, Major Zia and Mu, Samina Bilqis left Kasur for Lahore to collect the service card. After doing the needful and attenting to other engagements, the party left from Gulberg (Lahore) at 10-15 p.m. For Kasur. When they were four miles ahead of Kahna, the brake of the car went out of order. Major Zia stopped the car and told Amjad Yousuf that brake oil had leaked and that he should fetch it from Lahore. Amjad Yousuf stopped a bus coming from Kasur, boarded the same and got down at Canal Bridge Ichhra. He purchased brake oil from a Petrol Pump at Ichhra and at about 12-45 a.m., came to the place where the car had broken down. He opened the door and found that next to the seat of the driver, Mst. Samina. Bilqis was lying unconscious. On the back seat certain papers were lying scattered. He did not find Major Zia near the car and at once left for Police Station, Kahna, where he lodged the report and a case under section 307, P. P. C. Was registered by Sub-Inspector Mansabdar.
Soon after a police party reached the place of occurrence. They found Mst. Samina Bilqis in a sitting posture next to the seat of the driver ; Major Zia was found lying on the ground. He was injured. Both the spouses were removed to the hospital in a truck. The place of occurrence was put under guard to preserve the evidence. On reaching the hospital Mst. Samina. Bilgis was found to have expired. Major Zia was given medical aid and subsequently his statement was recorded.
Major's Zia's version was that after Amjad Yousuf had left, both the husband and wife were sitting in the car waiting for him to return when a shot was fired from the side where the wife was sitting.
Major Zia had a narrow escape whereas his wife was hit. She fell in his lap. Major Zia opened the door, walked towards the side from where the shot had come and noticed two persons. He went after them, caught hold of one of them, but was given beating by a Banda and he received injuries on his head. The other person wont towards the car, searched the brief-case and removed cash amounting to Rs, 2,000. In the meanwhile, the criminals noticed some light from the main road and after injuring Major Zia, who fell on the ground, disappeared in the darkness. They even tried to fire at him but the weapon, which according to Major Zia was a pistol, did not work.
' Major Zia was also interrogated. His answers showed no sign of grief about the death of his wife with the result that the police started suspecting him and when sufficient evidence came in possession of the police, which ruled out the possibility of a stranger killing Mst. Samina Bilqis, Major Zia was arrested on 4-1-1977. He thereafter applied for bail to the learned Additional Sessions Judge and was admitted to bail by means of impugned order.
Notice of this application was issued to the respondent and the State on 4-5-1977. On 13-7-1977 learned counsel for the petitioner filed additional grounds for cancellation of bail, which were that since the respondent had been admitted to bail, he had started threatening the relatives of the deceased not to pursue the case. Formal notice of these grounds was also given to the learned counsel for the respondent. Nevertheless, I declined to take these grounds into consideration for the simple reason that if the petitioner wanted to avail of the said grounds then the proper course open to him was to move the learned Additional Sessions Judge.
3. Before examining the contentions of the learned counsel for the parties I may observe that this is a case of circumstantial evidence. There is no ocular evidence in this case.
4. Learned counsel appearing in support of this petition contended that the learned Additional Sessions Judge did not take into consideration the principles governing the grant of bail in non- bailable offences especially that of murder, where the sentence provided by law is either death or life imprisonment.
The next point urged by him was that it was necessary for the learned Additional Sessions Judge to have taken into consideration the entire circumstantial evidence, whereas he dealt with the evidence in piecemeal manner, which was unwarranted by law and resulted in serious miscarriage of justice. The respondent who is accused of murder and against whom there is overwhelming evidence was therefore, illegally released on bail.
Learned counsel then referred to the evidence connecting the respondent with the crime. He started with motive, which was that Major Zia was interested in another woman. He, therefore, wanted to get rid of his own wife. The other material evidence was that the very story that there was some defect in the car turned out to be false, because the mechanic sent for by the police neither found any leakage of brake oil nor any other defect. Similarly, the police found eight golden bangles lying in the car, which ruled out the possibility of robbery with intent to murder or vice versa the police found footprints of Major Zia near the place of occurrence, the clothes taken from his person were found to be stained with human blood ; and the recovery of pistol at his instance after his arrest. In addition to this, there was evidence of Forensic Expert who opined that the bullet recovered from the back seat had been fired from the pistol recovered at the instance of the respondent, however, he could not give any opinion about the bullet which was extracted from the head of the deceased, because it had been deformed. According to the respondent only one shot was fired but the post mortem revealed that the deceased had three injuries caused by firearm.
' Last of all, learned counsel submitted that there was evidence of last seen together.
' Learned counsel then criticized the impugned order on the ground of its being perverse. According to the learned counsel, the Additional Sessions Judge did not give cogent reasons for granting bail to the respondent which showed lack of application of judicial mind. It was submitted that in the instant case, there were reasonable grounds to connect the respondent with the murder of his wife and, therefore, bail should have been refused by the learned Additional Sessions Judge. In support of this learned counsel relied on Abdul Mold v. State (I) and Nisar Ahmad v. State (2) with special reference to the following observation in the latter case :- In order to ascertain whether reasonable grounds exist or do not exist, the Courts do not have to probe into the merits of the case. They have only to look at the material placed before them by the prosecution, to see whether some tangible evidence is available against the accused, which, if left, unrebutted may lead to the inference of guilt."
Reliance was also placed on the following observations made by Chief Justice Hamoodur Rahman in case of Muhammad Shafiq v. Muhammad Hanif (3) : "It is now well-settled that in determining this question, namely as to whether reasonable grounds appear for believing that an accused person is guilty or not for the purposes of bail, the Court has not to examine the merits of the prosecution case or the plea of the defence or to make an appraisal of the material on the record but as pointed out in the case of. Khalld Saigol v.. The State PLD 1962 SC 495 merely 'to look at the material placed before it by the investigating agency and be prima fade satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guile."
Learned counsel then submitted that certain observations made by the Additional Sessions Judge amount to expressing opinion on the merits of the case. He submitted that for the purposes of bail, this is not permissible. In support of this reliance was placed on Muhammad Aram v. State (4).
Last of all, learned counsel relied on the latest pronouncement of the Supreme Court in Barkhurdar v. Kefayat Ali (5) and contended that there was sufficient material on the record to connect the respondent with the crime. Therefore, this was a fit case where the concession of bail should be withdrawn from him.
(1) PLD 1968 SC 349 (2) PLD 1971 SC 174
(3) 1970S C R 143 (4) PLD 1967 SC 539
(5) 1977 SC MR 30
6. Although, State never applied for cancellation of bail of the respondent, yet the learned counsel for the State supported the petitioner and submitted that it is a fit case where the bail be cancelled.
7. Dr. Khalid Ranjha, learned counsel for the respondent vehemently opposed this petition and took up number of points in support of the order of the Additional Sessions Judge. Before examining his submissions in detail, I think it necessary to reproduce verbatim paragraph 6 of the impugned order, because it contains reasons for admitting the respondent to bail :- "The Police Officer present before me could not show me anything from the police zimnis as to what were the reasonable grounds to suspect the petitioner after six days, because although the statement of the father of the deceased regarding motive was recorded on 31.124976 and if at all there were found no foot-prints of the assailants near the car, as stated by the petitioner, there should have been reasonable grounds on proper material before the police to suspect him as responsible for the occurrence. Reasonable grounds must be higher than suspicion though certainly less than proof. I have seen the medical evidence in respect of the third bullet which was the only bullet recovered from the dead body. It says: 'No opinion can be given... . .'."
8. The first point urged by the learned counsel for the respondent was that this petition at this stage was not maintainable. The petitioner should have in the first instance moved the Court which admitted the respondent to bail. Although it was conceded by the learned counsel that this Court was competent to adjudicate upon this petition, nevertheless according to the learned counsel the proper course open to the petitioner was to have gone to the Court of the Additional Sessions Judge. Reliance in support of the above contention was placed on Nazir v. Amir Din (1).
In view of the fact that l have declined to consider the additional grounds I do not agree with the learned counsel that the petitioner should have first moved the Additional Sessions Judge.
It was next contended that the question of grant of bail is a matter of judicial discretion and once the bail is allowed it is in very exceptional circumstances that this concession is withdrawn. Learned counsel submitted that an order of bail is recalled if it is contrary to the well-recognised principles governing the grant and cancellation of bait.
Learned counsel further submitted that the impugned order shows proper application of judicial mind, because contentions of both the parties had been incorporated in the said order in detail.
Relying on the case reported as Amir v. State (2), it was submitted that the law is not to be stretched in favour of the prosecution and bail is not to be withheld as a matter of punishment.
It was next contended that as it is a case of circumstantial evidence. This fact alone called for further enquiry into the guilt of the respondent as envisaged by subsection (2) of section 497, Cr. P.
C. Reliance in this connection was placed on Muhammad Ashraf v. State (3).
9. Before analysing reasons given in the para. Reproduced above, I may mention certain factual mistakes therein. For instance, the statement
(1) 1971 SCM R 637 (2) PLD 1972 SC 277
(3) 1975 P Cr. L J 1330 of the father of the deceased was recorded on 5-1-1977 and not on 31-12-1976. Similarly in line 3 of para. 6 instead of 'after six days' it should have been 'after four days'.
10. The first reason given by the learned Additional Sessions Judge was that "the Police Officer present before me could not show me anything from the police zimnis as to what were the reasonable grounds to suspect the petitioner after six days I would deal with the remaining portion of the sentence later on, but here I may observe that the presiding officer was not to be led by the Polio Officer, but it is the duty and function of the Court itself to take into consideration the entire evidence on which the prosecution is relying and the to form Its own opinion as to whether reasonable grounds exist a envisaged by subsection (2) of section 497, Cr. P. C. Therefore, in my view the approach of the learned Additional Sessions Judge to examine the question of reasonable grounds was not in accordance with law.
He further observed : 'If at all there were no foot-prints of the assailants near the car, as . Stated by the petitioner, there should have been reasonable grounds on proper material before the police to suspect him as responsible for the occurrence."
This portion of the sentence was read out before me number of times by all the learned counsel, but none of them, was able to understand as to what was meant by this. The interpretation put forward by Dr. Khalid Ranjha was that : "as no other footprints were found at the spot, hence merely on the ground of suspicion Major Zia had been implicated." In case this is what the learned Additional Sessions Judge meant then he could have said so.
11. In order to examine as to whether reasonable grounds exist or not, one thing which is very essential is that the Court seized of a bail matter in a non-bailable offence, especially that of murder must take into consideration entire prosecution evidence. Without adverting to the entire evidence it is not possible to give any finding whether reasonable grounds exist not. For that matter, it is obvious that the learned Additional Session Judge never took into consideration entire circumstantial evidence, referred c to above.
12. For the foregoing reasons I am of the view that it was neither proper nor in accordance with law to pick a few pieces of evidence from here and there and then on the basis of it admit the respondent to bail. I would, therefore, set aside the order of the learned Additional Sessions Judge and cancel the bail of the respondent. He shall be taken into custody forthwith.
Before concluding I would like to make it clear that none of the observation made in this order is to be used again it the respondent at the time of the trial.