' Before I embark upon the discussion of the case on merits, I would like to writ down the following sentences:-- "Wise is law as those who have legislated it, have put their wisdom in it, but those who interpret, apply and administer it are more wiser as they have got experience of it.
' Wisdom coupled with experience are like a coin of gold which is useful to keep and beneficial to use."
2. I intend to dispose of instant criminal miscellaneous alongwith another Criminal Miscellaneous No.922-B- 2003/BWP titled Muhammad Zahid versus the State, as both these petitions originate from one and the same occurrence.
3. On 4-4-2003, one Mushtaq Ahmad son of Hussain Bakhsh reported an occurrence with regard to the murder of his real brother namely Ishtiaq Hussain to Police Station Kot Samaba, District Rahimyar Khan, which was registered on 4-4-2003 through F.I.R. No.92 of 2003. Narrating the story, he stated that his, brother Ishtiaq Hussain was resident of Aziz Abad Colony, Rahimyar Khan. Akhtar Gill, Tariq Aziz, Muhammad Zahid and Ishtiaq Hussain had exchanged hot words 5/6 days before the occurrence with regard to some money transaction. Akhtar Gill had threatened of dire consequences to his brother. It is stated in the aforesaid F.I.R., that on that juncture, he had interfered and got the matter settled with a promise that his brother Ishtiaq Hussain would pay the amount after the sale of his lands. In the evening of 3-4-2003 at about 5-30 O'clock, Akhtar Gill, Tariq Aziz and Muhammad Zahid had arrived and took away Ishtiaq Hussain for getting his land sold. So in wake of this offer, Ishtiaq Hussain, riding upon his motorcycle No.RNN/1166, accompanied them. As he did not return uptil late in the night, the informant and Muhammad Aqeel commenced search of Ishtiaq Hussain. During the search Muhammad Amjad and Muhammad Asif told them that at about 6/6-30 O'clock, in the evening, they had met Akhtar Gill, Tariq Aziz, Muhammad Zahid, Abdul Ghaffar and Ishitaq Hussain, who had reached upon two motorcycles at the place of Tarinda Sawaiy Khan, where they were waiting for the bus for the purpose of proceeding to Rahimyar Khan, and therein Ishtiaq Hussain had told theni that he was accompanying Akhtar Gill as he was picked up by him to get the sale of his lands. Afterwafds all these persons advanced towards Bagh-o- Bahar. So, they continued the search of his brother. Upon information of lying a corpse of an unknown person, he accompanied with Muhammad Aqeel, Muhammad Amjad and Muhammad Asif, and reached there and found the dead body of Ishtiaq Hussain, upon whose face he had found injuries with sharp edged weapon, while on the back of the head an injury of firearm was detected by them.. So the suspicion of commission of offence of murder was attributed by him towards Tariq Aziz, Akhtar Gill, Muhammad Zahid and Abdul Ghaffar, who according to him, had committed the offence after planning it. The missing of motorcycle with its documents, ID Card, wrist watch and Rs.4,000 (four thousand rupees) was also reported, which according to the informant were taken away by the aforesaid persons.
' Involved in the aforesaid case, Abdul Ghaffar and Muhammad Zahid applied for. Bail after arrest before the learned Additional sessions Judge, Rahimyar Khan, who declined to extend the concession of bail to them on 23-7-2003, so both these accused have filed separate petitions for the grant of bail after arrest as noted above.
4. Arguing on behalf of the accused, the learned counsel for the petitioners have agitated the following grounds for the grant of bail in favour of the accused:--
(i) According to the story as narrated in the F.I.R., no motive was ascribed to the petitioners for the alleged murder of deceased.
(ii) Motorcycle and pistol were recovered from Akhtar Gill, accused only on 23-5-2003 and 31-5- 2003, and nothing was recovered from the petitioners inspite of they having been kept on physical remand with the Police.
(iii) There was no direct evidence of the alleged murder of the victim; there was no eye-witness, to the alleged occurrence.
(iv) In three time investigations conducted by different Police Officers, both the accused were found innocent.
(v) The alleged last seen evidence being decrepit, on the basis of statement of Muhammad Amjad and Muhammad Asif was not reliable and was not sufficient to keep the petitioners in jail for an indefinite period.
(vi) Medical evidence does not suggest of the involvement of more than one person in the occurrence.
5. The learned counsel appearing on behalf of the complainant/informant has argued that the petitioners have failed to adduce any reason for false implication of the petitioners in the incident; opinion of the Police with regard to the innocence is not sufficient. Great stress has been laid on the fact that as the petitioners have been challaned in the case and the trial of the accused has commenced, therefore, the bail should not be granted. As per learned counsel, the Courts have no jurisdiction to grant the bail after the trial has started in the case.
6. The learned counsel appearing on behalf of the State has half-heartedly supported the complainant.
7. I have consulted the record and analyzed the arguments of the learned counsel of the parties.
8. As far the merits of the case are concerned, it has been admitted that both these petitioners were found innocent by three different Investigating Officers. S.-I./S.H.O. Declared them innocent on 11-5-2003; Abdul Hafiz, DPS (investigation) found them innocent on 26-5-2003; while Bashir Ahmad Inspector held them innocent on 27-5-2003. It is correct that ipsi dixit of the police is not binding on the Courts yet these opinions coupled with the facts of the case have got some weight. There is no ocular evidence in the case as admitted by the prosecution. In 1991 SCM R 1630 (Naik Muhammad v.
The State), the Hon'ble Supreme Court had granted the bail when in three investigations, the accused were found innocent. There is yet another important fact that the Police had submitted report on 28-6-2003 to the learned Illaqa Magistrate for the discharge of the accused, which was not, approved by the aforesaid learned Illaqa Magistrate, so the Police had clearly found and held that both these petitioners were innocent and were holding that version till the filing of the report under section 173 of the Cr.P.C:, when they placed them in column No.2 of the aforesaid report. The most vital incriminating evidence which is being harped by the prosecution is that of last seen evidence, which has been held in many judgments to be the weakest piece of evidence. The medical . Evidence shows apparently that it was a firearm injury which had caused loss of life of the deceased. It is prima facie linked to Akhtar Gill accused due to the recovery of the alleged pistol and motorcycle from that accused. I made a query from the Police Officer, in the Court, and from the learned counsel for the complainant as to whether any more injuries were found on the dead body of the deceased, the reply was in the negative. So prima facie for the purpose of tentative assessm ent for the bail, the involvement of these petitioners has become a case of further inquiry.
As far the motive is concerned, that has to be proved firstly by the prosecution, in a criminal case and the burden to prove cannot be placed and shifted on the shoulders of the accused. So the argument advanced by the learned counsel for the informant that the petitioners were bound to explain the motive for their false implication, cannot sound correct in the eye of law. The learned counsel for the petitioner have submitted that when there is no direct evidence of any eye-witness and there is no incriminating evidence on the record, the accused are found to be entitled to bail.
2003 M LD 1375 (Muhammad Hamid Qureshi v. The State), has been referred in support of his view.
9. The learned counsel appearing on behalf of the informant have laid great stress on the commencement of the trial and that this Court has got no jurisdiction to bail out those accused against whom trial has commenced. Their plea is that the trial would be prejudiced and the accused would slip out of it and there is a clear bar expounded and created by the Hon'ble Supreme Court upon the Courts below as not to grant the bail to the accused during the proceedings and trial of a case. To fortify their view point, they have referred to 1990 SCM R 307 (Allah Ditta and others v. The State). I have great respect and regard for the apex Court of the country but the proposition of law, which is being expounded by the learned counsel for the complainant, on the basis of aforementioned authority is not of such nature as they have perceived and conceived it into their mind. The authority of 1990 SCM R 307 supra, does .Not lay down such principle of law and it does not prescribe that in all cases and circumstances, when the trial of a murder case had begun, the accused cannbt be granted bail. As I have earlier stated that the persons who have framed the statute and are to interpret the law are more wiser than it has been considered by the learned counsel. The wordings of subsection (2) of section 497 of the Cr.P.C. "....If it appears to such Officer or Court at any stage of the investigation, inquiry or trial" clearly and unequivocally has conferred the power upon the Court, even if the proceedings of trial have commenced, to grant the bail to the accused, if there are reasonable grounds for belief that the case of the accused falls within the domain of further inquiry into his guilt. In fact, the learned counsel for the informant were more impressed and were lying much stress on the basis of above referred case law, in which the leave was refused. But they have lost sight of the authoritative and considered judgment of the Hon'ble Supreme Court reported in PLD 1989 SC 585 (Muhammad Ismaeel v. Muhammad Rafique and another). According to the above noted celebrated judgment of the highest Court of the country it was held that ordinarily the practice of the superior Courts is that the case when is fixed for hearing, the bail applications should not be decided on merits and the matter be left to the trial Judge. The use of words ordinarily is most important to be considered while applying it to a case. There is no doubt or cavil to this proposition that the bail should not be ordinarily granted to an accused in case murder trial has commenced, when there is D a possibility of prejudicing the merits of the case or there is a likelihood of abscondance of the accused or any of such kind or reason for the refusal of the bail. In the instant case of peculiar circumstances, it is admitted fact that there is no ocular evidence and the sole evidence which can be produced against the accused/petitioners is that of weakest type of evidence i.e. Last seen evidence.
Whether this sole evidence E would result in conviction of the petitionets to the extent of awarding of death sentence or not?, has still to be answered by the learned trial Court. I have restrained myself to dilate upon more on the facts and merits of the case, as it may prejudice the trial of the case, therefore, I have got the firm view that holding of the trial does not create bar in the way of the superior Courts who have got ample jurisdiction to grant the bail to the accused if the accused is found entitled to it even if the trial has commenced and the evidence has begun or it has been recorded or concluded. The words as used in subsection (2) of section 497, Cr.P.C. Are of vital importance in this regard. The jurisdiction or powers of the Court cannot be circumscribed by the fallacious interpretation being put to law by the learned counsel for the complainant. As it would not only negate the clear implication of the statutory provisions of section 497, Cr .P.0 . Yet would expound the law wrongly attributing incorrectly such interpretation to the Hon'ble apex Court of the country.
10. I would also like to add here that it is a matter of great importance for a Court that a person who is entitled to the grant of bail should not be kept in the jail. Even a single day of detention of an innocent accused could not be compensated, after his acquittal at the conclusion of the case. The Courts are the guardians of the rights and liberties of the citizens of their country. Laws are to be interpreted in such a way as to foster the justice and bring innocent persons out from the bars of jail proceedings towards a freeway.
11. So, the petitioners whose case I have found of further inquiry are granted bail in the sum of Rs.1,00,000 (one hundred thousand rupees) with two sureties each in the like amount to the satisfaction of the learned trial Court.
12. The above observations are only tentative for the purpose of decision on bail petition, which should not be used as a vehicle for influencing the adjudication of the case by any party and these should be kept limited for the sole purpose of the bail. The learned trial Court is to decide the case upon its own merits and after application of its judicial mind and independent conscience to the facts and circumstances of the case.