Criminal Revision Nos. 803 and 804 of 1969 are connected matters having been filed by the two petitioners who are name--sake, seeking cancellation of bail allowed to the respondents of whom Khan Muhammad and Hakam Khan are common in both the cases under section 148, 302/ 149, P. P.
C., etc. Registered in succession against the members of the same party at Police Station Sadar Shahpur on the 24th of September 1968. The first report in point of time was No. 12, dated the 24th of May 1968, lodged by Muhammad Nawaz, son of Ata Muhammad at 8-30 p. m. Against six persons including the respondents in Criminal Revision No. 803 of 1969. In this case one Muhammad Zaheer and his sister Ghulam Aisha were killed besides injuries to another lady Mst. Fatima. The second report No. 13 was lodged at 9-15 p. m. By one Muhammad Nawaz, son of Ghulam Muhammad against five persons including the respondents in Criminal Revision No. 804 of 1969. This case relates to the murder of two persons, namely, Muhammad Yaqoob and Ahmed Kh&r1. Tile first occurrence took place in village Mid while the second at Chah Bakhshah, their being a distance of four Killas between the two places.
2. The two cases were simultaneously investigated by the Circle Inspector, Shahpur Sadar in the first instance and later on representation made to the D. I. G. Of Police by the com--plainant party, a D. S. P. From Mianwali was deputed to reinvestigate. It is not disputed that as a result of concurrent finding of the two Investigating Officers the respondents in the two cases were found to be innocent, and as such were placed in Column No. 2. Consequently the police did not consider it necessary to arrest Hakim Khan and Khan Muhammad respon--dents who were accused in both the cases. The Enquiry Magistrate, however, after having examined the complainant in each case summoned the aforesaid two respondents but never--theless allowed them bail. Shera respondent No. 3 in the first case though arrested by the police was also allowed bail by the learned Magistrate on the same ground of having been placed in Column No. 2 alongwith Khan Muhammad and Hakim Khan aforesaid. Feeling aggrieved, the petitioners filed two applica--tions for cancellation of bail before the learned Sessions Judge who dismissed them, vide his order dated the 14th June 1969. They have now preferred the present petitions.
3. It was contended on behalf of the petitioners that once the Magistrates takes cognizance of the matter and summons a person as an accused in a case, the finding of the police regard--ing his innocence becomes altogether irrelevant, and as such, the Court has the unfettered discretion to take him into custody. Reliance was placed in this regard on Moonda and others v. The State (PLD 1958 SC), Muhammad Nawaz Khan v. Noor Muhammad and others (PLD 1967 Lah. 176) and Falak Sher and another v. The State (P L D1967 SC 425). The ratio decidendi of these authorities is that a Magistrate is not bound by the police report under section 173 of the Cr. P. C. It was argued that since the respondents were summoned as accused persons on charge of murder on the basis of the statements of the complainants recorded by the learned Magistrate, he was under a statutory obligation to take them into custody and to cancel the bail allowed to them by the Investigating Officers. It was next argued that even otherwise the finding given by the Investigating Officers should not have been deemed to be sacrosanct for the reason that the statements of the witnesses examined by them were recorded pretty late after the occurrence. It was stressed that as the two occurrences had taken place in broad daylight in which the respondents had not only been named but specific part had been ascribed to each one of them by the eye-witnesses, they could not be allowed to remain on bail in a case of murder punishable with death or transportation for life in view of the provision contained in section 497, Cr. P. C. Relying on Abdul Malik's case (PLD 1968 SC 348), it was contended that although in that case one of the Investigating officers had found the accused to be innocent, yet their Lordships of the Supreme Court did not interfere with the order of the High Court refusing bail to him. Reliance was also placed on Ghulam Farid and another v. The State (1969SCMR80), wherein their Lordships of the Supreme Court refused to grant leave for appeal against the order of the High Court declining bail to a person after he had been committed to stand trial with the observation that the order of commitment amounted to the existence of a prima facie case against him, and as such, did not justify his enlargement. Lastly an unreported order of their Lordships of the Supreme Court dated the 12th of February 1969, was pressed into service. In this case their Lordships confirmed the order of Ata Ullah Sajjad, J. Dated the 24th of June 1968, whereby his Lordship cancelled the bail allowed to an accused person in a case of murder. The following observation made in the order of the learned Judge was specifi-- cally emphasised by the learned counsel :- "In my view, the learned Additional Sessions Judge took entirely an erroneous view of law. It is the duty of a Court to go into the fact whether there are or not reasonable grounds to hold that a person is guilty of an offence punishable with death or transportation for life. The learned Additional Sessions Judge should not have contented himself with the concession made before him by an A. S. 1. Or the Public Prosecutor. It was his own duty to go into the matter and give his own finding; that this was a fit case for bail. While dealing with the application for cancellation of bail, he repeatea the opinion of the Police which in my view was besides the point."
4. On the other hand it was contended on behalf of the respondents that although the competence of the learned Magis--trate to take cognizance of a case against a person found to be innocent by the police was not disputed nevertheless the finding given by the Investigating Officer was very much relevant and material for considering the question of bail, even in a case of murder. Reliance was placed in this regard on Nadara v. Jammait Khan and another (PLD 1968 SC 310), in which their Lordships had specifically referred to the finding of the police as being one of the relevant circumstances which could be taken into consideration with a view to draw an inference of the existence or otherwise of reasonable grounds to raise a belief regarding the guilt or innocence of a person in a case punishable with death or trans--portation for life. Again relying on this as also on Muhammad Ayub v. Muhammad Yaqub and another (PLD 1966 SC 1003), it was contended that according to their Lordships of the Supreme Court even an order of commitment which amounted to the existence of a prima facie case against an accused person could not be equated with an affirmative finding regarding existence of reasonable grounds to believe that the accused was guilty of an offence punishable with death or transportation for life, justifying cancellation of his bail. It was argued that the expression namely, existence of a prima facie case against -in accused in a charge of murder was not identical with reason--able belief that he was guilty of an offence punishable with death or transportation for life. Reliance was also placed on Muhammad Iqbal v.
The State (1568 P Cr. L J 1212) and Farooq Ahmad v. Ghulam Shabbir (1968 P Cr. L J 447(1)).
5. Learned counsel for the State was in full sympathy with the petitioners and supported the plea for cancellation of bail allowed to the respondents. On the basis of Muhammad Nawaz khan v. Noor Muhammad and others and Falik Sher and another v. The State, the authorities already relied upon by the learned counsel for the petitioners it was contended by him that the responder-.Is should no longer be allowed to remain oil bail once they were summoned by the Magistrate as accused persons.
6. Notwithstanding tire availability of a plethora of authorities oil matters relating to bail, it is not always easy to decided applications for grant or cancellation of bail in cases of murder.Normally are would expect that numerous authorities should be available to offer clear and safe guidelines on all conceiv--able situation in this regard, nevertheless it becomes rather problematic for the Courts to decide bail matters at preli--minary stages. The difficulties may be summarised as follows:-
7. In the first instance the Courts are called upon to take decision in such matters at the earliest opportunity immediately after the complaint is lodged and the case is still pending investigation, their being nothing in law to prevent an accused person from moving the Court for bail even at this stage. It is on the basis of that rather meagre and insufficient material available at that stage that in the legal parlance the Courts have to give a finding as to whether "there appear reasonable grounds for belief" that an accused person is guilty of an offence punishable with death or transportation for life". No doubt in tire very nature of things as also suggested by the language employed, tile finding has to be only tentative in nature, nevertheless, to draw an inference regarding the existence or otherwise of such reasonable grounds on the basis of the F. I. R. Tile medical evidence, the police statements in some cases and coupled with the final police report under section 173, Cr. P. C. In others, is by no means an easy task. The finding being pro--visional is, however, liable to be varied on the basis of material made available on further investigation or enquiry. The problem becomes further aggravated because of the possibility or even pro--bability of misstatements, distortions and exaggeration of facts made by the complainants, quite a few of whom may not have qualms of conscience so that the versions given by them could be safely relied upon. It is common knowledge that at times innocent persons have been implicated even in the dying declarations either voluntarily by the deceased or under pressure of his surviving relations. "To make matters worse is the scarcity of scrupulous police officers to whom is indiscriminately entrusted the highly responsible job of investigating cases of murder. On the top of it are some genuine difficulties faced by the police such as M the lamentable lack of public spiritedness of our people very few of whom could he actuated by merely considerations of civic responsibility or moral obligation to enter the witness-box after having actually seen the occurrence. Lastly it is also too well-known a fact that some police officers who may not beotherwise corrupt would not hesitate to fabricate evidence in order to fill in the lacuna in the prosecution case once they are convinced of the guilt of the accused. Such fabrications are frequently brought to the notice of the Courts in the course of adjudication of criminal cases.
8. Notwithstanding all this the fact, however, remains that there would hardly be a situation in bail matters which may bet completely devoid of authority. All that the Court is expected to do is to exercise jurisdiction in the choice and application' of relevant authorities froth amongst the plethora of rulings having the closest proximity to 'if not complete identity with the facts and circumstances of the cases before them so that the ratio decidendi of the precedent authorities can be attracted with full force.
9. Coming now to the facts of the instant case the first point to be determined in that of the relevancy or otherwise of a. Finding given by the police. As stated earlier the two possibi--lities of the false implication of an innocent person by the complainant or the so-called eye-witnesses and of deliberate favour or concession on account of ulterior motive to a guilty person by unscrupulous police officers are always there and have to be kept in view, nevertheless it cannot be seriously disputed that the finding given by a police officer is very much relevant in deciding a question relating to bail in a case of, murder. In Khalid Saigal v. The State (PLD 1962 SC 495) it was observed by their Lordships as follows:- "Subsection (1) of section 497, evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court and, as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has, nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists."
Obviously the material placed by the Investigating Agency would also include its concluding report under section 173, Cr. P. C. Which per se would be based on all the relevant evidence collected during investigation and, as such, would form an important of the same. Again in Muhammad Aslam and another v. The State (PLD 1967 SC 539), it was observed by their Lordships:- "An application for bail is often made before the commitment proceedings have been started- What would then be the material on which the Court may form opinion `whether reason--able grounds appear'?
Obviously the F. I. R. The recoveries, if any, and the statements of the witnesses recorded under section 161, Cr. P. C."
Obviously the finding of the police regarding the innocence of an accused would be based inter alia on the assessm ent of all police statements recorded under section 161, Cr. P. C. For or against him. It is thus abundantly clear that the, finding given by an Investigating Officer would be as much relevant as other considerations of the basic falsities and the inherent infirmities in the present case such as a patently irrecon--cilable conflict between the medical evidence and the ocular evidence.
10. The next point to be determined in this regard is that or the competence of the Enquiry Magistrate to disregard this finding on the bass of the evidence recorded by him. The position is much too obvious and there can hardly be two opinions about this. The law invests a Magistrate with full powers to summon a person as au accused on the basis of prima facie inculpating evidence brought on the record notwithstanding the finding of the police to the contrary. No fault could therefore, be found with the order passed by, the learned Enquiry Magis--trate in summoning the respondents after having examined the complainants in the two cases particularly when they were not only named as accused. Person in a case of broad daylight occurrence but specific parts were also ascribed to them. Of course the legality of this procedure has not been challenged before me. What is impugned, however, is not only the failure of the learned Enquiry Magistrate to remand the respondents to custody on being summoned but also of having himself released on bail Shera respondent in Criminal Revision No. 804 of 1969, who likewise had been found innocent by the police alongwith Hakim Khan and Khan Muhammad respondents. It was at this stage that the complainant moved the learned Sessions Judge for cancellation of bail allowed by the police to the last mentioned two persons, Hakim Khan and Khan Muhammad and by the Magistrate to Shera.
11. The sole consideration which appears to have weighed earlier with the learned Magistrate and later with the learned Sessions Judge in dismissing the petitioners' application for cancellation of bail is the concurrent finding given by the two Investigating Officers. In my view even if this finding may not be deemed to be good enough. To justify an inference for want of reasonable grounds to believe that the respondents were guilty of an offence punishable with death or transportation for life, at least the question would certainly need further enquiry of which the Magistrate is already seized. Keeping in view the sanctity of human liberties and having taken due care to safeguard the same, the law has clearly enjoined that even in such circumstances where the case needs further enquiry, an accused person has to be released on bail and in fact the Court has been placed under a statutory obligation to do so. `--This is clear from the language of subsection (2) of section 497, Cr. P. C. Which reads as follows:- "When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police-station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transpor--tation for life: Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided."
12. Normally one would presume that on commitment to stand trial in a case of murder when a prima facie case is made out against the accused it would be no stage to allow him bail if sought for the first time as held by their Lordships of the Supreme Court in Ghulam Ahmad and another v.
The State (1969 SCMR 80). But there may be another categories of cases, for instance, there have been cases where bail was earlier allowed to the accused before the commencement of or during enquiry and they were remanded to custody only when committed for trial, and then approached the High Court for enlargement till the conclusion of the trial. Bail has been allowed by the High Court in some cases and declined in others depending on the circumstances of each case. There is, however, yet another category where notwithstanding the order of commitment, bail was not cancelled by the committing Magistrate and the High Court and the Supreme Court refused to interfere. In this regard following observations made by S. A. Rahman, J., in Muhammad Ayub v.
Muhammad Yaqub and another may be reproduced with advantage:-- "Of course the mere existence of an order of commitment or trial need not be equated with the finding that there appear reasonable grounds for believing that the respondent was guilty of an offence punishable with death or transportation for life. Only a prima facie case must be deemed to exist against him on basis of the order of commitment."
Of course, in the case bail allowed to an accused person after commitment by the High Court when the same had been declined by another Single Judge was cancelled by their Lordships of the Supreme Court. But the above observation clearly brings out the distinction between the two positions, namely the existence of a prima facie case against an accused and that of the appearance of reasonable grounds for believing that he is guilty of an offence punishable with death of transportation for life. I am thus in no manner of doubt that the mere existence of an order of commitment is not invariably good enough per se to justify the remand of an accused to custody but all the relevant circumstances shall have to be taken into consideration. There may be cases where it may not be necessary to cancel bail notwithstanding the order of commitment.
Further support is lent to this view by Nadra v. Jammait Khan and another. It was held by their Lordship, that "ordinarily framing of a charge against an accused person furnishes grounds for belief that an accused leas been guilty of such an offence nevertheless person com--mitted may be allowed bail in an exceptional case if the "evidence produced before the Enquiry Magistrate prima facie makes out that reasonable grounds do not appear for believing that he has been guilty."
13. Relying on Ghulam Farid and others v. The State learned counsel for the petitioners contended that the committal of an accused in a case of murder was per se good enough to completely rule out his enlargement, there being no room for dis--tinction or discrimination In particular the following obser--vation made by my Lord The Chief Justice of the Supreme Court was pressed into service :-- "The learned counsel has vehemently argued that mere committal is not by itself sufficient to make it appear to the Court that reasonable ground exist for believing that the petitioner had been guilty of an offence punishable with death or transportation for life within the meaning of section 497, Cr.
P. C. We are unable to agree with this. Commitment is by itself sufficient to show that a prima facie case exists. In the circumstances we see no reason even on merits to inter--fere with this case."
No doubt this observation of my Lord Hamoodur Rahman, C. J. Appears to be in conflict with the observation of S. A. Rahman, J. In Muhammad Ayub v. Muhammad Yaqub and another reproduced earlier but this seeming conflict is completely resolved on a closer appreciation of the two rulings with full knowledge of the back ground of the respective cases.
14. Obviously the respondents in the instant case stand on a much higher footing than the person against whom an order of commitment has been passed. So far the only evidence recorded against them is that of the statements of the complainant in each case which runs counter to the concurrent finding of inno--cence given by the two Investigating Officers. There is no statutory provision to the effect that the Magistrate was under an obligation to remand the respondents to custody the moment they are summoned by him to face enquiry. Of course there shall be no restriction on him to do so if at a subsequent stage such a course is warranted by further evidence brought on the record. Keeping in view the circumstances as they exist, I find that orders passed by the learned Sessions Judge are unexceptionable, and the applications for cancellation of bail were dismissed by him in proper and judicious exercise of his discretion.
16. The authorities relied upon by the learned counsel for the petitioner proceed on distinguishable facts. In Abdul Malik v. The State (PLD 1968 SC 349), only one of the Investigating Officers had found the accused petitioner innocent and unlike the position in the instant case, the police had ultimately decided to send him up. Secondly their Lordships of the Supreme Court had clearly observed that no dictum of the Supreme Court had created any hurdle in the matter of bail as was conceived by the learned Single Judge on his interpretation of Muhammad Aslam's case and other subsequent authorities. Likewise the unreported judgment of the Supreme Court placed on the record whereby the order of Ataullah Sajjad, J. Cancelling the bail allowed by S. I. To an accused after he was summoned by the Magistrate to face enquiry was upheld, proceeds on different facts.
In this case the accused had been found by the police to be innocent and was placed in Column No. 2. He was summoned by the Magistrate and taken into custody. The learned Sessions Judge placing exclusive reliance on the finding of the police and without applying his mind independently in the light of the evidence on record allowed bail which was cancelled by Ataullah Sajjad, J. And their Lordships of the Supreme Court refused to grant leave to appeal. The position would be admittedly clear from the observation of his Lordship quoted in para. 3 of this judgment.
17. The upshot of the above discussion, therefore, is that the petitions fail and are hereby dismissed.