Ghulam Rasool and Muhammad Safdar respondents being accused in a case under sections 302/148/149, P.P.C. Registered against them vide F.I.R. No,95 of 2000 dated 12-5-2000 at Police Station Sithra, District Sialkot, were allowed post-arrest bail by the learned Additional Sessions Judge, Daska, through an order dated 14-6-2000 after dismissal of their application for grant of bail before arrest on 5-6-2000. The major consideration for the grant of bail to them was that they were empty-handed and were not attributed any overt act except the proverbial Lalkara.
2. I during my visit to the Courts at Daska as Inspection Judge of District Sialkot, on coming to know that the abovenamed respondents were allowed bail in the murder case shortly after their arrest issued notice to Ghulam Rasool and Muhammad Safdar accused of the abovesaid case under section 497(5), Cr.P.C.
3. The brief facts in the background as given in the F.I.R. Are that the agricultural land measuring 7- 1/2 acres owned by Ghulam Rasool was on lease with the complainant and his father namely Munir Ahmad for a period of ten years. During the existence of lease of the complainant party, Ghulam Rasool entered into an agreement of lease with Muhammad Tufail and demanded possession of land from the complainant party but the lease period having not yet expired, the complainant and his father resisted the demand of possession whereupon Ghulam Rasool and Muhammad Safdar respondents alongwith one Faqir Sain went, to the Dera of the complainant and deceased on 10-5- 2000 and while extending threats to them that they would take over the possession of the land forcibly on that day left the Dera for the land and at the same time, Muhammad Tufail their co- accused started ploughing the land with tractor. The complainant alongwith Munir Ahmad deceased and one Irshad while following Ghulam Rasool, Muhammad Safdar and Faqir Sain when reached the Banna of the land, the abovenamed accused allegedly raised Lalkara that the complainant and Munir Ahmad should be taught a lesson for resisting the ploughing of the land and as a result thereof, Muhammad Tufail, Ghulam Mustafa, Nasir and Jameel armed with rifles, Mushtaq with hockey, Azhar and Shahid armed with Sotas attacked on the complainant and Munir Ahmad, Muhammad Tufail, Nasir and Jameel allegedly fired at Munir Ahmad whereas the complainant sustained injuries at the hands of Muhammad Tufail and Ghulam Mustafa, Munir Ahmad succumbed to the injuries at the spot.
4. The learned Additional Sessions Judge granted bail to the respondents with the following observation:-- "There is absolutely no doubt to the fact that the petitioners were empty-handed. They have been ascribed the role of Lalkara only. They played no active, role during the alleged occurrence.
Ghulam Mustafa, one of the accused was ascribed the role of causing injuries to the person of the complainant who has been declared innocent. The petitioners are in the judicial lock-up and no more required for funher investigation. Otherwise, main culprits of the case if any are Tufail, Nasir and Jameel. The above-referred authorities produced by the learned counsel for the petitioners fully support his case, therefore, I am inclined to rely upon these references. The application is, therefore, accepted and the petitioners are released on bail subject to their furnishing bail bonds in the sum of Rs,1,00,000 (one lac) each with one surety each in the like amount to the satisfaction of this Court."
5. Learned counsel appearing on behalf of the respondents vehemently argued that the jurisdiction under section 497(5), Cr.P.C. Cannot be enlarged to the extent of cancellation of bail by the Court suo motu and that powers under section 497(5), Cr.P.C. Can only be exercised on an application either moved by the complainant of the case or by the State. He submitted that the by the subordinate Courts in the discretionary jurisdiction is not normally interfered by the superior Courts unless it is misused or grant of bail has caused miscarriage of justice. Learned counsel placing reliance on Muhammad Haroon and another v. The State 1994 SCM R 2161 argued that in a similar case, the apex Court allowed bail to the accused who were only attributed the role of raising Lalkara in a murder case within two months from the date of refusal of bail by the High Court.
Learned counsel on the strength of case-law further argued that notwithstanding the prohibition contained in subsection (1) of section 497, Cr.P.C. The Court on any valid ground can grant bail to an accused who is involved in a case punishable with death, or imprisonment for life or imprisonment for ten years and that in the present case, there were sufficient grounds to believe that the respondents have not committed such an offence. The learned counsel while summing up argued that the learned Additional Sessions Judge has neither exceeded his jurisdiction nor 'exercised the discretion in an improper manner and further there was also no allegation of misuse of concession of bail by the respondents, therefore, the to the respondents by the learned Additional Sessions Judge is not liable to be interfered by this Court at this stage in exercise of suo motu powers under section 497(5), Cr.P.C. The main thrust of the learned counsel was that in the initial investigation conducted by a Sub-Inspector, the present respondents were found not present at the spot at the time of occurrence, therefore, they richly deserved to the concession of bail.
7. Learned counsel representing the complainant while supporting the cancellation of bail has argued that the respondents were not only attributed the role of proverbial Lalkara but they with the demand of possession of land from the complainant and his deceased father extended threats of life to them at their Dera shortly before the fateful occurrence and then while forming an unlawful assembly and actively participating in the occurrence instigated their co-accused who were armed with deadly weapons to teach a lesson to the complainant and his father for cultivating the land without their permission. He added that in consequence to the aggression of the respondents, Munir Ahmad lost his life in the occurrence, therefore, the mere fact that the respondents were empty-handed and raised only Lalkara would not be a valid ground to extend them the concession of bail in a case of capital punishment at such an early stage when the investigation was still at initial stage. Learned counsel while placing reliance on Muhammad Sultan v. The State 1999 PCr.LJ 1218 submitted that in similar circumstances to the accused in a murder case was recalled by this Court. He argued that the plea of alibi raised by the respondents before the police being not supported by any evidence would not be helpful to them at this stage. The Sub-Inspector who has produced the record of the case stated that the case was still under investigation and the police official who earlier investigated the case in the light of the plea of alibi raised by the respondents before him expressed opinion about their innocence but the said opinion was not supported by any evidence. The learned Additional Advocate-General has also supported the cancellation of bail.
8. The perusal of the record would show that the plea of alibi being raised by the respondents was not supported by any evidence and further such plea requiring to be specifically proved through evidence at the trial is not considered for the purpose of grant of bail. The respondent allegedly shortly before the said incident while extending threats to the deceased demanded possession of the land from him at his Dera and then in the company of their co-accused, who were armed with deadly weapons while reaching the place of occurrence raised Lalkara that the complainant and the deceased should be taught lesson for cultivating their land. They being members of an unlawful assembly would not be ignorant about the consequence of the Lalkara raised by them and, therefore, it was difficult to suggest at bail stage that the respondents being empty-handed would not have common object to form an unlawful assembly or conscious knowledge to commit the crime. This is noticeable that the respondent after getting the concession of an ad-interim pre- arrest bail while raising the general plea of alibi get a favourable opinion from the Investigating Officer which would amount to influence the fair and independent investigation. Further, the case was still at preliminary stage of the investigation when the learned Additional Sessions Judge in an undue haste while expressing an opinion in favour of the respondents vis-a-vis their vicarious liability allowed them bail. There is no cavil to the legal position that the considerations for grant of pre-arrest bail are different to that of post-arrest bail and there is no bar for the Courts to entertain an application under section 497, Cr.P.C. And grant bail to an accused on any ground at any stage of the case but the exercise of such power must not be uncontrolled and must be used in accordance with the settled principles for grant and refusal of bail and the Courts while exercising such power must not overlook the judicious considerations. The essential prerequisite for grant of bail by virtue of subsection (2) of section 497, Cr.P.C. Is that the Court must be satisfied on the basis of opinion expressed by the Police or the material placed before it that there were reasonable grounds to believe that the accused was not guilty of an offence punishable with death or imprisonment for life or with imprisonment Of ten years, whereas in the present case, the respondents have been allowed bail at an early stage of the investigation without there being an opinion given either by the police or by the Court qua the extent of their liability to bring their case within the ambit of subsection (2) of section 497, Cr.P.C. In absence of forming such an opinion on the basis of result of the investigation, the learned Additional Sessions Judge was not supposed to make an observation, which would affect the result of investigation. Undoubtedly, the liberty of a person is very valuable and is guaranteed under the Constitution which is guarded by the Courts but it being always subject to law is to be necessarily protected in the light of law under which his liberty has been curtailed. The respondents in the present case while facing criminal charge of murder were allowed post-arrest bail shortly after their arrest without change of the circumstances under which they were refused pre-arrest bail a few days earlier and thus despite the fact that the considerations for grant of bail before arrest and bail after arrest are different, the Court at the time of disposal of such an application under section 497, Cr.P.C., has to attentively consider the nature of accusation, the role assigned to a person and the evidence in the hand of the prosecution in support thereof. In the present case, probably the learned Additional Sessions Judge being under the impression that the respondents in the light of attribution could claim the concession of bail as of right extended the same to them shortly after their arrest when the case was still at the initial stage of investigation.
9. I, therefore, for the foregoing reasons am of the view that the respondents while facing the murder charge were wrongly allowed the concession of bail by the learned Additional Sessions Judge before the conclusion of investigation. Consequently, the to the respondents namely Ghulam Rasool and Muhammad Safdar is hereby recalled with the observation that this order will not debar them from exercising their right of moving a fresh application for grant of bail before the learned Additional Sessions Judge at an appropriate stage. The notice issued under section 497(5), Cr -.C. Is disposed of accordingly.