SH. IJAZ NISAR, J.- This petition for leave to appeal is directed against the order, dated 28.9.1998, passed by the Lahore High Court, Lahore, in Criminal Appeal No. 447 ot 1998.
2. The facts, in brief, are that on 7.8.1996, at 2.30 a.m. a case under Sections 302/449/109/34. PPC was registered with Police Station Chak Jhumra, District Faisalabad, against unknown persons, at the instance of Farhat Azeem complainant (PW.9) tor the murder of his father Asmatullah deceased. According to hint, on the day of occurrence, at 12.30 a.m (midnight) he heard tire reports from the side of their dera. He rushed to the spot and saw his father Asmatullah deceased lying injured with firearms. He died on the spot on account of those injuries. He saw four persons armed with firearms running towards the west of dera. Subsequently. Sarfraz PW. 12 and his father Abdul Rehman PW. 13 claimed to have seen Ghulam Rasool. Jehangir, Nawaz and Shahbaz Masih, entering the courtyard of the house of the deceased and firing at him. Azmat Ullah and Waheed Rasool, respondents herein, alongwith others were challaned in this case.
3. The motive for the offence, as furnished by Nisar Ahmad PW. 14, was that he alongwith Waryam Khan PW (given up) went to Police Station Chak Jhumra in connection with personal business. At about 6.00 p.m. To parties of Chak No. 153/RB were sitting separately in to plots of the said Police Station in connection with the investigation of a case, in the western plot, Waheed Rasul.
Azmatullah and Azmatullah respondents were present alongwith Nisar Ahmad PW and Waryam Khan. Azmatullah son of Allah Rakha, Azmatullah s/o Muhammad Khan and Waheed Rasul respondents, in their presence, instigated Ghulam Rasul, Jehangir, Nawaz and Shahbaz Masih their co-accused that Azmatullah deceased, being brother of an MPA, opposed them in all matters and was taking personal interest against them and that he should be eliminated.
After completing the investigation, the police challaned the respondents alongwith their co- accused.
4. At the trial, the learned Additional Sessions Judge, Faisalabad, vide judgment dated 4.5.1998, convicted Jehangir and Shahbaz Masih co- accused under Section 302(b)/34, PPC and sentenced them to death. Ghulam Rasul and Nawaz accused were convicted under Section 302(b)/34, PPC and sentenced to rigorous imprisonment for life. Azmatullah s/o Allah Rakha, Asmatullah s/o Muhammad Khan and Waheed Rasul respondents were convicted under Sections 302(b)/109, PPC and sentenced to rigorous imprisonment for life.
5. The convicted accused filed appeal in the High Court. By order dated 28.9.1998. The learned High Court suspended their sentence and released them on bait pending disposal of their appeal.
Hence, this petition by Farhat Azeem complainant, son of Azmatullah deceased.
6. It is contended on behalf of the petitioner-complainant that the facts and circumstances of the case did not justify grant of bail to the respondents, in that, they had remained absconding after the occurrence for a considerable period; the evidence led against them at the trial about the conspiracy had been believed by the learned Trial Court and that the learned High Court in touching the merits of the case in suspending their sentence. Though precedents of the Court were cited before the learned High Court disapproving the grant of bail to the accused convicted on the capital charge but the same were neither considered nor followed.
7. The binding effect of the decisions of the Supreme Court was considered in the case of Syed Sajjad Hussain v. Secretary, Establishment Division, Cabinet Secretary, Islamabad, and 2 others (1996 SGMR, 284) and it was held that the law declared by the Supreme Court would bind all the Courts. Tribunal and also the bureaucratic set-up in Pakistan. Ataur Rehman v. The State (PLD 1967 SC 23) is also to the same effect.
In the Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997, SC 351) + (PSC 1997 SC 636) this Court had observed that the law declared by Supreme Court by virtue of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, is binding on all the Courts and authorities in Pakistan, and the judgment passed by the High Court, contrary to the dictum laid down by the Supreme Court would be a judgment per incuriam, and that one cannot be found guilty of disobedience of such an order and cannot be got implemented by invoking power of contempt of-the Court.
Ashiq Hussain alias Muhammad Ashraf v. The State (PLD 1994, SC 879) also emphasises the binding nature of the decision of the Supreme Court and strongly deprecates the tendency on the part of the Courts to ignore judgments of the superior Courts when cited before them. The relevant observations are to the following effect:- " Before parting with the judgment we propose to remind all other Courts in Pakistan that under Article 189 of the Constitution of the Islamic Republic of Pakistan, decision of the Supreme Court enunciating principles of law is binding on them. By our-experience we have noted tendency on the part of Magistrates/Assistant Commissioners/Additional District Judges/District Judges to ignore the judgments of the superior Court when cited before them. They would not even read the citation and would give the impression as if the law laid down by the Supreme Court/High Court is not meant for them. They often tell the Advocates to produce the law books before the superior Courts as and when the matter reaches there. This treatment of the judgments of the superior Courts and attitude of the Presiding Officers is contemptuous, contumacious and also amounts to misconduct. By this judgment we intend to strike a note of warning to the subordinate Courts in the country that they are legally, bound to follow the principles of law enunciated by the Supreme Court and if they do not follow it then serious view of the matter can be taken against the delinquent as and when the misconduct comes or is brought to the notice of this Court."
Sakhi Muhammad and another v. Capital Development Authority, Islamabad (PLD 1991 SC 777) also enunciates the above proposition wherein it was observed that all Courts subordinate to the Supreme Court and all executive and quasi-judicial authorities are obliged by virtue of the Constitution to apply the rule laid down by the Supreme Court in the cases coming up before them for decision.
8. The rule of interpretation of law laid down by the High Courts and the Supreme Court in criminal cases is that when to varying precedents are available on a particular point, the one most relevant and applicable to the facts and circumstances of the case and delivered by a larger bench should be followed, in this context, we may advantageously refer to Sikandar A. Karim v. The State (1995 SCM R 387) wherein it was laid down that: "The decision of Supreme Court, in so far it- decides a question of law or is based upon or enunciates a principle of law is binding on all Courts in Pakistan. The decisions on questions of law or enunciation of principles of law are the generalization of such questions and principles. There can be no generalization of the fact and circumstances, of any case. The facts and circumstances of each case are peculiar to that case and therefore, provide no guidance in the other cases. On the other had, the generalized principles of law or generalized enunciation of principles of law govern all those which fall within such generalization."
We do not think that there is hardly a need for reiteration that the Supreme Court is the highest judicial forum in the country, it has to interpret the law while hearing appeals from the judgments of the High Court and the subordinate judiciary. Invariably such matters are considered by more than one Judges having long experience and thrash out the proposition brought before them in the light of the chain of judgments rendered on the controversy in issue and ensure that continuity of law is maintained as it is essential for good judicial administration.
The subordinate judiciary should always give its utmost respect, regard and consideration to the judgments, decrees, directions and order of the Supreme Court, for, it is necessary apart from the binding nature of the same for maintaining discipline in all ranks of the judiciary. When the Supreme Court itself gives due consideration to the earlier decisions rendered by it we wonder why the subordinate judiciary in Pakistan should turn a deaf ear to the judgments, awards, findings or observations of the Supreme Court. The Courts and authorities subordinate to the Supreme Court are under legal obligation to follow the law laid down by it. And it they consider that the case law cited before them is not relevant or application to the tacts and circumstances of the case they are dealing with, they should distinguish it with reasons showing application of mind by them. The exercise would enable the party citing the case law to understand as to why the precedents relied upon by it were not followed.
9. Now coming to the legal position in respect of suspension of sentence, we may refer to Bahar Khan r. The State (1969 SCM R 81) wherein it was observed that "there is no force in the contention that the powers conferred on an Appellate Court under Section 426 to suspend sentence pending the hearing of an appeal are wider than the powers to release on bail under Sections 497 and 498 of the Code. A person accused of a non-bailable offence may not be released on bail if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life", it was concluded that unless strong grounds are made to appear that conviction is not liable to be sustained, bail under Section 426 will not be granted. To the same effect are the observations in Abdullah Khan v. Karamdad (1968 SCM R 1064); Maqsood v. All Muhammad and another (1971 SCM R 657) Abdul Ghafoor w Anwaral Nassau, etc. (1978 SCM R 149): Faqir Muhammad v. Akbar (1979 SCM R 276) and Haji Mir Aftab v. Vie State (1978 SCMR, 320).
The discretion has to be exercised judicially by considering the relevant facts without commenting on the merits of the case. If the contention raised requires consideration of the merits, the Appellate Court would refrain from entertaining such contentions. The Court cannot enter into a re- appraisal of the evidence which should be considered at the time of hearing of the appeal. But, where on perusal of the facts and judgment impugned, the Court comes to the conclusion that the judgment suffers from any legal error, it would be justified to suspend the sentence and grant the bail. In this regard the reasonable and legal views expressed by the Trial Court should be given due consideration and weight, but every effort should be made to ensure that neither the evidence is re-appraised nor the merits of the case are discussion. Muhammad Ashraf v. The State (1971 SCM R 183), Noor Abdullah & another v. The State (1981 SCM R 859); and Jamshed Azam v. The State (1990 SCM R 1393) also enunciate the above legal principle.
Muhammad Nawaz v. Muhammad Nawaz alias Naji and 4 others (1997 SCM R 1521) is another judgment on the point of suspension of sentence, and it was observed in this case that the accused-respondents having been, convicted and sentenced on the charge of murder, High Court had no jurisdiction in law to suspend their sentences in the peculiar circumstances of the said case.
It is a settled proposition of law that while deciding the bail matter the Court has to refrain from making such observations, which may prejudice the case of either party.
Sentence awarded by the Trial Court should not ordinarily be suspended by the Appellate Court unless strong grounds are made out to appear that conviction under the offence in question or any other allied offence is not liable to be sustained, but it should not be taken as total prohibition on the power of the Appellate Court to suspend the sentence and in suitable cases it may exercise the powers on the basis of the principles laid down in proviso to sub-section (1) to Section 497 Cr.P.C, as held by this Court in Maqsood v. Ali Muhammad and another (1971 SCM R 657). It was further observed in the said case that "it is now well-settled that where a statute itself lays down certain principles for doing some acts they may be taken as a guideline for doing something of the same nature which is the discretion of the Court."
10. Since the respondents had been convicted at the trial by the competent Court, we do not think that pending disposal of appeal filed by them there were any good grounds available for the suspension of their sentence. In consequence, we hold that they were not entitled to the grant of bail. Accordingly, we convert the petition into appeal and while allowing it cancel the bail of the respondents and direct that they be taken into custody.