1. DORAB PATEL, J.-This petition for leave has been filed against an order of the Lahore High Court by which a learned Judge of the Lahore High Court dismissed the petitioner's application for bail pending his trial for murder in the Sessions Court, Rahimyar Khan.
2. Muhammad Haleem was murdered in Khanpur on 12-8-1977 at about 6-CO p.m., and the petitioner and one Khalid son of Muhammad Shafi have been named in the F.
1. R. As the accused. And further, according to the prosecution, the crime was witnessed by Muhammad Azeem, the brother of the deceased, and one Abdul Ghani, a servant of Muhammad Azeem.
3. The petitioner was arrested on 25-8-1977 from the Mental Hospital, Lahore, where he had been admitted as an indoor patient twelve days earlier. The petitioner denied the charge against him and stated that he had been falsely implicated on account of enmity. He, therefore, immediately advanced a plea of alibi and stated that he was in Lahore on the day of the occurrence, because he was a mental patient, and he had gone to Lahore as he had an appointment with Dr. M. A. Aziz, Superintendent of the Mental Hospital, Lahore at about noon on 12-8-1977 and for the. Purpose of this appeal, it is sufficient to state that he had sought bail in the Sessions Court on this ground. Mr. Sardar Iqbal also informed us that the bail application had been supported by a certificate of Dr. M.
4. A. Aziz that the petitioner had consulted him on 12-8-1977 at about noon. Now as the distance between Lahore and Khanpur is about 350 miles, the question before the Court was whether the petitioner could have been in Khanpur within about six hours of his appointment with Dr. M. A. Aziz in Lahore. Without examining this question, the Sessions Court rejected the petitioner's application for bail with the observation "the occurrence took place in broad daylight and it has been clearly mentioned in the F. I. R. That (the petitioner) caused two dagger blows to the deceased. In view of the above facts, the plea of alibi is not entitled to any credit." The learned Additional Sessions Judge was obviously of the view that Muhammad Azeem's statement in the F. I. R. Lodged by him had to be treated as sacrosanct for the purpose of the bail application.
5. Aggrieved by the rejection of his bail application, the petitioner approached the Lahore High Court for bail, but there was another extra--ordinary development in the case before the High Court heard this bail application. This was that a case was registered under sections 302, 120-B, 468 and 471, P. P. C. Against Dr. M. A. Aziz, the petitioner's father and the petitioner and his co-accused. Mr. Sardar lqbal submitted that this was a false and frivolous case, which supported the petitioner's allegation of p collusion between Muhammad Azeem (the brother of the deceased) and the Investigation Agency. As, in bail applications, Courts should avoid examining submissions which relate to the appreciation of evidence, but are not absolutely necessary for the decision in the case, we would only observe that learned counsel also informed us that the Chief Justice of the Lahore High Court bad granted interim pre-arrest bail to Dr. M. A. Aziz, and that the confirmation of this order came up for hearing before another learned Judge of the High Court with the bail application of the petitioner. The learned Judge confirmed the bail granted to Dr. M. A. Aziz, but dismissed the bail application of the petitioner by his order dated 17th April, 1978.
6. The learned Judge referred in this order to the petitioner's plea of alibi and observed that whilst the occurrence took place on 12th August, 1977, the petitioner had been admitted as an in-door patient in the Mental Hospital at Lahore more than 24 hours later on the night of the 13th August, 1977. The learned Judge then stated that the petitioner "stood surety for his co-accused Khalid son of Muhammad Shafi on 11th August, 1977 at Police Station Khanpur after 8 or 9 p.m." After referring to these two circum--stances, the learned Judge dismissed the application for bail with the observation that the petitioner was charged with an offence punishable with 1 death or transportation for life. Mr. Sardar Iqbal submitted that the two circumstances relied upon by the learned Judge in this order were not relevant to the petitioner's application for bail, because the fact that the petitioner was in Khanpur at 8 or 9 p.m, on 11th August, 1977 would not prevent him from being in Lahore 15 or 16 hours later, and because the fact that the petitioner had been admitted in the Mental Hospital, Lahore on 13th August, 1977 could not rule out the possibility of his being in Lahore a day earlier. As the distance between Lahore and Khanpur is about 350 miles, neither of these two circumstances relied upon by the learned Judge were necessarily fatal to the petitioner's plea of alibi, and in rejecting it, it is obvious that the learned Judge has assumed that the prosecution evidence had to be preferred to that produced by the accused. Mr. Sardar Iqbal, therefore, submitted that this assumption was based on a misreading of section 497 of the Criminal Procedure Code.
7. Mr. Abdul Hamid Malik sought to defend the impugned order by invoking what he described as the principle that Courts cannot grant bail on a ground which related to the appreciation of evidence.
8. Now, for reasons which are too obvious to require to be stated, Courts should, as we observed refrain from examining submissions which relate to the appreciation of evidence, but are not necessary for the decision of the case. This, however, does not mean that Courts cannot examine such submissions, and if we were to accept learned counsel's submissions, it would lead to absurd and arbitrary consequences. Thus, for example, if in the instant case, the evidence of alibi produced by the petitioner is ruled out, we are left only with the F. I. R. And the statement under section 161, Cr. P. C., which Abdul Ghani, Muhammad Azeem's servant, must have made before the Police. Now although learned counsel stated that we could not assess the evidentiary value of the certificate of Dr. M. A. Aziz and his affidavit, he submitted that bail could not be granted because the petitioner bad been implicated in the F. I. R. But we cannot accept the F. I. R. As correct without making a tentative appreciation of evidence in favour of the prosecution. Secondly, the abolition of committal proceedings has made a change in the law. As committal proceedings have been abolished, neither the author of the F. I. R. Nor the persons whose statements have been recorded by the Police under section 161, Cr. P. C. Can be subjected to the test of cross-examination until evidence is recorded in the case, and this is a circumstance which is relevant to the evidentiary value of the F.
1. R. And of the Police statements, unless section 497 of the Criminal Procedure Code draws a distinction between this type of evidence and other evidence.
9. This section in so far as is relevant reads "497. When bail may be taken in cases of non-bailable offence.-(1) 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 imprison--ment for life or imprisonment for 10 years."
10. As the power conferred by this section is not an arbitrary power, it has to be exercised by reference to the material placed before the Court, and as to what that material should be, we cannot do better than quote the observations of Sajjad Abmad Jan, J., in Manzoor and 4 others v. The State (PLD 1972 SC 81). There Sajjad Ahmad Jan, J., observed that this material would consist of "the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence." The other relevant circumstances would include evidence produced by the accused, and, as submitted by Mr. Sardar Iqbal, section 497, Cr. P. C. Does not draw any distinction between evidence produced by the prosecution and evidence produced by the accused. Now as bail has to be allowed or rejected on the basis of this material, it follows that the Court has to make a tentative assessm ent of its evidentiary value in order to decide a bail application, the moreso, as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it. But the section is a part of a Code under which the guilt or innocence of the accused has to be determined in the light of the evidence which is produced when the trial of the accused begins, therefore, whilst deciding a bail application, the Courts, and especially the superior Courts, must refrain, directly or indirectly from giving any conclusive finding on the question of the guilt or innocence of the accused, and it may be that an application for bail may fail, if it cannot be decided without an elaborate sifting of evidence. But because the Court must not prejudge the case of the prosecution or of the accused, this does not mean that the Court can shirk its obligation to decide the application for bail before it, and that application can only be decided by Court's belief about the material produced before it.
11. We now turn to the case-law. The leading case on the question is that of Khalid Saigol v. The State (PLD 1962 SC 49). The judgment was by a very strong Court consisting of Cornelius, C. J., Kaikaus, J.
12. And Hamoodur Rahman, J. Hamoodur Rahman, J. (as he then was), who pronounced the judgment of the Court observed at page 499 "It will be observed that even under section 497(i) in the case of an offence punishable with death or transportation for life the , mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. 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, to 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."
13. As this judgment was followed in Muhammad Aslam v. The State (PLD 1967 SC 549), we would only observe that no Judge can be prima facie satisfied that the material produced by the prosecution "if left unrebutted, may lead to the inference of guilt" against the accused, unless the Judge makes a tentative assessm ent of the evidentiary value of the material produced before him. Similarly no Judge can be satisfied even prima facie that the evidence produced by the prosecution does not lead to the inference of guilt against the accused unless he makes a tentative assessment of the material produced before him.
14. We now turn to this Court's judgment in Muhammad Aslam's case. In setting aside the order of the High Court granting bail Yaqub A.I, J. (as he then was), who pronounced the judgment of this Court, observed at page 543 "The High Court is thus not to examine the merits of the prosecution case or the plea of defence in finding whether reasonable grounds appear for believing that the accused person has been guilty.
15. Otherwise any expression of opinion about the merits of-the case by the High Court may dispose of the case before the trial has started."
16. We respectfully agree with the dictum that Courts should not prejudge the case of the parties by their observations in bail orders. But the earlier observation that the High Court "is thus not to examine the merits of the prosecution case or the plea of defence" is not very clear. Does it mean that High Courts should not give conclusive findings on the evidence produced before them, or does it mean that, for fear of prejudging the case of the parties, the High Courts cannot give even a tentative finding on the evidence produced before them ? If the latter be the true meaning of this observation, how are High Courts to decide bail applications ? And would not this observation be inconsistent with the ratio of Khalid Saigol's case, and with the view taken by Yaqub A.I, J., himself the next year in Nadara v. Jamait Khan and another (PLD 1968 SC 310) ? As the observations in a case have to be construed with reference to the facts of that case, we have no doubt that the observation that the High Court was "not to examine the merits of the case" only meant that the High Court had erred, in Muhammad Aslam's case, in giving a conclusive finding on the question raised before it. It is, however, not surprising that this observation has perplexed and baffled High Courts and Sessions Courts, but, fortunately, this case was re-examined and explained in Ch. Abdul Malik v. The State (PLD 1968 SC 349).
17. As Abdul Malik's case is by a larger Court and as it contains a very lucid analysis of section 497, Cr.
18. P. C. (we say so with respect), we would examine the case in some detail. As in the instant case, the petitioner had sought bail, although the charge against him was for murder. The High Court was perhaps inclined to allow bail, but felt that it was precluded from so doing by judgments of this Court, including the judgment in Muhammad Aslam's case. Sajjad Ahmad Jan, J., who pronounced the judgment of this Court, pointed out "that the plethora of decisions" on the law of bail had "produced a confusion of thought", and with reference to Muhammad Aslam's case Sajjad Ahmad Jan, J., observed "In the third case Muhammad Aslam v. The State, the observations of this Court in Khalid Saigol's case were noted with approval to re-affirm that in deciding the question of bail under section 497(1), Cr. P. C., when the accused is first brought before the Court, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of 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 to look on 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 this discretion no longer exists. This evidently means that the discretion of the Court in refusing bail in cases of offences punishable with death or transportation is wrested away only after the investigating agency satisfies the Court prima facie that there are reasonable grounds in the case which if not rebutted would lead to the inference of guilt of accused persons."
19. These observations not only clarify the true ratio of Muhammad Adam's case, but they also clarify the duty cast upon the Court of making a tentative appreciation of evidence of the material produced before it by the parties. This view was re-affirmed in Abdul Rashid v. The State (PLD 1972 SC 25) and we refer to this judgment, because once again it is by a larger Court, and because it was case in which bail was granted even though the petitioner had not produced any material in his defence. Presumably, because the petitioner had not produced any material in his defence, the High Court had treated the prosecution evidence as sacrosanct and refused bail. In setting aside this order, Sajjad Ahmad Jan, J., who pronounced the judgment of the Court, observed "The learned Single Judge in the High Court has concluded that if this evidence is believed, it would establish the presence and privity of the appellant in the murder. But this is begging the question.
20. The point to be determined is whether this evidence, as it stands, is sufficient to raise a reasonable ground for believing that the accused has committed the offence attributed to him. This entails the question as to what are the powers of the committing Court in assessing the merits of the evidence for purposes of granting or withholding bail. Must the Inquiry Magistrate believe every allegation made in regard to an accused person, who is charged with an offence punishable with death or transportation, however, stupid or unconvincing that allegation may appear to him, and refuse bail on that basis, or can he scrutinise that evidence at least to the extent of finding out whether it does or does not induce a reasonable ground for him to believe that allegation 7"
21. Now if the Court is thus under an obligation to assess the prosecution evidence when no attempt is made to rebut it, it is all the more under that C obligation, when the accused produces some material in support of his pleas. No doubt, because the assessment has to be a tentative assessm ent, the duty cast upon the Court is a difficult and onerous duty, but this is part of its obligation to protect the liberties of the subject. As observed in Abdul Malik's case :- "Orders on bail application should not be considered as routine orders. Involving as they do the liberties of citizens, they must be carefully balanced and weighed in the scales of justice and the requirements of the relevant law, as contained in sections 496-498, Cr. P. C."
22. We may also refer here to an authority to which Mr. Sardar Iqbal referred us, Mst. Jantan Bibi v. Sher Muhammad and another (1968 SCMR 795), because the facts in it are almost on all fours with those in the instant case. The petitioner had sought bail on a plea of alibi, but the High Court had dismissed his application. In allowing the petitioner's appeal Cornelius, C. J., who pronounced the judgment of the Court, observed : "Mr. Ghulam Abbas Jaffery points out that the alibi evidence was not produced before the Committing Magistrate. That seems immaterial, for the Committing Magistrate was not competent to evaluate the evidence on the two sides for determining the guilt or innocence of the accused.
23. The condition for refusal of bail under section 498, Cr. P. C., is that there should be reasonable grounds for believing the accused person to be guilty. This involves a prejudgment on the evidence appearing, prima facie, at the stage when bail is sought."
24. Thus the trend of authority is clear, consistent and uniform, and, as' observed by Cornelius, C. J., a decision on a bail application "involves as prejudgment on the evidence appearing, prima facie, at the stage when bail is sought".
25. We now turn to the Court's judgment in Iqbalur Rahman v. The State and Muhammad Yaqub v.
26. Iltafur Rahman and another (PLD 1974 SC 83) on which Mr. Abdul Hamid Malik relied in support of his submission that Courts could not grant bail on a ground which related to the appreciation of evidence. Mr. Abdul Hamid Malik naturally placed great stress on this case, because, as in the instant case, the petitioner had sought bail on a ground of alibi, which was supported by the statement of disinterested persons. But the prosecution had produced considerable evidence to implicate the respondent, and unlike the instant case, these statements had been rezbrded before the abolition of the committal proceedings, and it would further appear that the ocular evidence was supported by evidence of the recovery of the crime weapons. The learned Judge of the High Court, however, granted bail to the respondent because his plea of alibi was supported by the statements of disinterested persons. In setting aside this order, Anwarul Haq,(as he then was, now the Chief Justice), observed "that the learned Judge in the High Court was clearly in error in recording a finding at this stage as to the credibility of the evidence of alibi. We also find that, in any case, the finding is not based on a consideration of the other relevant factors . . . ."
27. Learned counsel also relied on the following observations by his Lordship "In these circumstances, it would .Need an elaborate sifting of the evidence to come to the conclusion that the prosecution allegations were not true and stood negatived by the evidence of alibi produced by or on behalf of Iltafur Rehman at a late stage during the investigation of the case. It is well-settled that such a sifting is not to be undertaken for the purpose of grant of bail as that is likely to pre-empt the duties and functions of the trial Court, and to prejudice the prosecution or the defence."
28. An elaborate sifting of evidence is an altogether different thing from then tentative sifting of evidence which the Court is compelled to resort to in bail application, therefore, this judgment does not lend any support to Mr. Abdul Hamid Malik's submission that bail cannot be granted if the plea is pressed on ground which turns on the appreciation of evidence. Similarly, the rejection of the plea of alibi does not support learned counsel's submission, because of the mass of evidence produced by the prosecution, and because the plea of alibi was not raised immediately.
29. We would now turn to the instant case in the light of this discussion. The Court had to weigh the F. I.
30. R. Statement together with the statement of Muhammad Azeem's servant against the plea of the petitioner in the light of the fact that the petitioner was implicated by the Police. In order to overcome this difficulty, Mr. Sardar Iqbal alleged bias against the investiga--petition agency. But we are reluctant to examine this plea, and it is also necessary to examine it, because of the litigation between . The parties to which learned counsel drew our attention. And as the petitioner appears, on the whole, to have been successful in that litigation, Mr. Sardar Iqbal's submission was that Muhammad Azeem was an inimical witness. But inimical witnesses may be witnesses of truth, whilst disinterested witnesses may commit perjury. However, as a Court cannot, in bail applications, resort to an elaborate sifting of evidence, it has to go by its assessment of "the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case", therefore, whilst the prosecution may be able to prove that Muhammad Azeem was a man of unimpeachable character, for the purpose of the bail application, the hostile relationship between the parties is a circumstance not irrelevant to the Court's assessm ent of the material produced before it. Similarly, although the petitioner's plea of alibi is supported by the affidavit of a disinterested person, once again we must emphasize that it would be open to the prosecution to prove that the evidence of Dr. M. A. Aziz is not fit to relied upon.
31. But for the purpose of the bail application, we cannot ignore the fact that a medical practitioner of high repute, who does not have any ostensible connection with the petitioner, supports the petitioner's case. How then did the High Court refuse bail 7 The learned Judge has very properly refrained from giving a detailed order, but from the tenor of hi order, it would appear that he assumed that prosecution evidence sacrosanct for the purpose of a bail application. With respect, this is no the correct view of the law, therefore, although this Court is always very reluctant to interfere in- bail orders, a principle which we would reiterate we are compelled to interfere in the instant case, because the impugned order is based on a misreading of section 497, Cr. P. C.
32. Accordingly, after hearing both the learned counsel, we converted the petition into an appeal allowed it and ordered the release of the appellant pending his trial by the Sessions Court.
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