' MALIK MUHAMMAD ASLAM KHAN, J.-We accepted, on 18-10-1977, Criminal Petition No, 6 of 1977 for Leave to Appeal against the order of the learned Single Judge of the High Court dated 19-1-1977.
The learned Single Judge vide the impugned order has confirmed the interim bail of the respondents who were placed in Column 2 of the challan filed in the District Court, Mirpur under section 302/34, A. P. C. And section 5 of the Islamic Tazeerati Act for murdering one Muhammad Latif.
2. The respondents were placed in Column 2 under section 169, Cr. P. C. As the investigating agency came to the conclusion that there was no sufficient evidence against the three respondents to connect them with the offence of murder of Muhammad Latif and that accused Manzoor alone was responsible for causing the death of Muhammad Latif with a hatchet. In view of this fact, it appears, the District Criminal Court, on the application of the Public Prosecutor, bailed out all the three respondents. After the respondents were thus bailed out, Mst. Reshman, the wife of the deceased, filed a private complaint under section 302/34, A. P. C. And section 5 of the Isiamic Tazeerati Act against Manzoor and the present three respondents in the District Court. The learned District and Sessions Judge in preliminary hearing, after examining the complainant and two witnesses issued non-bailable warrants against the present three respondents he himself had already bailed out in the challan. Against this order of the learned Sessions Judge, the respondents filed a revision petition and Mst. Rashman an application in the High Court and the learned Single Judge while dismissing the application of Mst. Reshman accepted the revision petition and bailed out the respondents as narrated above. It is against this background that the present appeal is being heard by us.
3. The case of the learned Advocate-General is that the High Court has unduly interfered with the discretion of the trial Court by freeing the respondents on bail. Because the learned Sessions Judge was quite competent to issue non-bailable warrants in the private complaint of Mst. Reshman, when prima facie a case under section 302/34, A. P. C. Had been made out against the respondents.
' The learned counsel for the respondents, on the other hand, has contended that the learned Single Judge of the High Court had used his discretion on sound grounds and had given quite weighty reasons for accepting the application of the respondents and freeing them on bail. It is also argued that the Supreme Court rarely interferes in the discretion so exercised by the Courts below, unless it is shown that there is gross misuse of the discretion leading to manifest injustice.
But such is not the case here as the discretion has been judiciously exercised. In support of this contention he has referred to PLD 1967 SC 293. In that case, the High Court had confirmed the interim bail before arrest of a person who was alleged to be a privy and an accessory to murder.
This order of the High Court was challenged in the Supreme Court but the Supreme Court refused to interfere with the discretion exercised by the Courts below. In the present case, we find that admittedly the charge against the respondents is not that they caused the death of Abdul Latif but that they were privy to the offences and that it was Manzoor who had inflicted the hatchet blow killing the deceased. In view of this fact, we do not find any strength in the argument of the learned Advocate-General which could persuade us for interfering with the discretion exercised by the learned Single Judge of the High Court.
4. The learned counsel for the respondents has also referred to 1969 P Cr. L J 111, PLD 1968 SC 349, 1970 SCMR 299 and 1970 P Cr. L J 765 in support of his contention that even in a murder case when an accused person is placed in column 2 by the Police, the accused deserves to be released on bail. He has also referred to PLD 1970 Lah. 111 in support of another contention that the finding of the investigating agency about the innocence of the persons placed in column 2 of the challan carries weight in considering the bail application. He has also referred to PLD 1962 SC 495 in support of his argument that mere heinousness of the crime is not by itself a good ground for refusing bail, even be it a case of murder.
' As against these authorities, the learned Advocate-General has contended that in an offence entailing punishment of death or transportation for life, the Court is to exercise its discretion with due care and caution after ascertaining whether there are reasonable grounds, which if unrebutted, could connect the accused with the offence. According to him, there are sufficient 'reasonable grounds' in the present case to connect the respondents with the offence of murder and, as such, the learned Single Judge of the High Court, according to him, has not properly exercised his discretion in bailing out the respondents. For this, he has referred to PLD 1968 SC 349 which inter alia, lays that bail is to be refused where reasonable grounds exist tending to connect the accused with the crime. He has also referred to 1970 P Cr. L J 680. In that case, the accused was named in a murder case in the F. I. R. And two witnesses had been examined charging him of firing gunshots at the deceased. The investigating agency was of the view that the accused was not present on the spot and was innocent. In these circumstances, the by the Sessions Judge was cancelled by the Supreme Court.
5. We have given anxious consideration to the arguments addressed at the bar and studied the authorities cited by the learned Advocate-General and the learned counsel for the respondents.
Our considered view is that the impugned order of the learned Single Judge of the High Court is based on well-considered reasons and there is nothing to show that the discretion ha been exercised fancifully or in gross disregard of the accepted principles o justice. It is to be noted that the investigating agency itself found that there was no sufficient evidence against the respondents establishing their involvement it the murder and on this score they placed them in column No, 2 of the challan. The Public Prosecutor himself moved the District Court to bail out the respondents. It is also conceded that in the private complaint, the same witnesses were examined by Mst. Reshman as had been examined by the investigating agency. The learned Sessions Judge issued the non- bailable warrants on the same set of evidence. In view of these circumstances, there is hardly any cogent reason to support the Advocate-General's contention that the discretion has not been properly exercised in granting the bail. We are told that now the prosecution has examined more than eight witnesses but even then the District Court has not thought it fit to cancel the respondents' bail in spite of the observation of the learned Single Judge that it could do so if it found that sufficient evident had come on record to connect the respondents with the offence of murder. This factor cannot be ignored by us when considering the application filed by the State.
6. Lastly the learned Advocate-General has contended that his real grouse is about the impression created by the observation of the learned Single Judge to the effect that bail could be cancelled only if there was new material/evidence before the Court. This observation, according to him, seriously jeopardises the prosecution as it rests its case not on any "fresh material" but on the same evidence that came before the investigating agency. Though it may be possible for such an impression to be created by the stray observation of the learned Single Judge we find that what the learned Single Judge meant was not the production of any 'additional evidence' or 'fresh material' than the one collected by the Police. According to the learned Single Judge the 'fresh material' in this case will be the examination of the prosecution witnesses in presence of the respondents affording them the opportunity to cross-examine them. If after such an examination, the trial Court comes to the conclusion that there is sufficient evidence, if unrebutted, that may lead to the conviction of the respondents then their bail could be cancelled. In view of this we find no hindrance in the discretion of the trial Court in cancelling the bail if at any stage it decides to do so. With this observation, we hope that the apprehensions of the learned Advocate-General will be set at rest. But so far as this appeal is concerned, we find no force in it and accordingly reject it.