1. ' NASIM HASAN SHAH, J.-This order will dispose of Criminal Appeal No, 100 of 1984 and Criminal Appeal No, 101 of 1984, as they relate to the same transaction and have been disposed of by a common judgment of the High Court.
2. ' The facts, which form the background, are that a case was registered on 20-7-1982 under section 302/148/149, P. P. C. At Police Station Darband, District Mansehra against Sadiq son of Faiz Ali (respondent No, 1 in Criminal No, 100 of 1984), Muhammad Daud son of Ali Bahadur (respondent No, 1 in Criminal No, 101 of 1984) and 4 others in connection with the murder of Muhammad Zaman-the cousin of Muhammad Sadiq son of Sher Zaman, the appellant herein. Despite the registration of the case against them neither Sadiq (respondent No, 1 in Criminal Appeal No, 100 of 1984) nor Muhammad Daud (respondent No, 1 in Criminal Appeal No, 101 of 1984) could be immediately arrested, as they were not available in the locality and were arrested only some 5/6 months later, on 25-1-1983.
3. ' Both of them applied for bail separately, after being arrested, before the IIaqa Magistrate. The said applications for bail were, however, dismissed by him by his orders, passed on 29-1-1983 and 30-4- 1983, respectively. The learned Magistrate in his order dated 29-1-1983 rejecting the bail application of Sadiq observed that the said accused was involved in a murder case wherein the P. Ws. Had connected him with the offence and "above all the conduct of the accused-petitioner is that he remained absconder and was arrested about six months after the occurrence".
4. ' In his order rejecting the bail application of Muhammad Daud, which was passed on 30-4-1983, the learned Magistrate observed that he was charged directly for firing at Muhammad Zaman deceased and the offence was punishable with death or life imprisonment.
5. ' Both the accused then applied through separate applications, for bail before the learned Sessions Judge, Mansehra. 1 he bail application of Sadiq (respondent in Criminal Appeal No, 100 of 1984) was disposed of on 20-2-1983. On his behalf it was submitted before the learned Sessions Judge that the role of Killing the deceased was attributed to him and the absconding co-accused by firing at him effectively but it was yet to be determined at trial as to which one of them was actually responsible for his murder as only one bullet injury was found on him ; that the medical evidence and the site plan did not fully support the prosecution version; that the P. Ws., who allegedly witnessed the occurrence, were closely related to the deceased and that in view of the plea of alibi the concession of bail should not have been refused to him. On the contrary, it was argued on behalf of the State that Sadiq having been directly. Charged for the murder of Muhammad Zaman deceased in, the F. I. R., coupled with the factum of his absconsion, he was not entitled to bail. The learned Sessions Judge, however, accepted the prayer of the accused and allowed him bail observing as follows:- "Without adverting to the merits of the case I opine that there is sufficient scope for further enquiry in the instant case to determine guilt of the petitioner. Admittedly, two persons namely petitioner Muhammad Sadiq and absconding co-accused Daud, are stated to have fired effectively on the person of the deceased. The medical evidence indicates only one wound on the victim of the assault. It h s yet to be determined at trial as to which of the above-named two persons, is responsible for the death of Muhammad Zaman. The bail application is accepted and the petitioner is directed to he released on bail."
6. ' This order was passed on 20-2-1983.
7. ' Thereafter, Muhammad Daud (respondent in Criminal Appeal No, 101 of 1984) applied for bail. His application was also allowed but on the ground that as the murder of Muhammad Zaman deceased was attributed to him alongwith his co-accused Sadiq and the latter had been released on bail on 2J-2-1983 hence in view of the principle that equality of treatment is to be accorded to persons placed in similar situation and similar circumstances in accordance with the principle of consistency, the co-accused of Sadiq, namely, Daud, was also entitled to the concession of bail.
8. Muhammad Daud, on this view of the matter, was also granted bail by the learned Sessions Judge, Mansehra vide his order dated 8-5-1983.
9. ' Feeling aggrieved by the above-mentioned orders passed by the learned Sessions Judge, Mansehra, the complainant Muhammad Sadiq moved two separate applications before the Peshawar High Court, Circuit Bench Abbottabad for cancelling the bail of the two respondents.
10. However, both the petitions were heard together by the High Court and rejected by a common judgment dated 21-3-1984.
11. ' The above applications were dismissed mainly on three considerations, namely,
(i) that the High Court should be "slow in interfering with the discretion exercised by the trial Court",
(ii) that while both Sadiq and Muhammad Daud were attributed effusive role in causing the death of the deceased Muhammad Zaman but the medical evidence showed that his death was the result of a single bullet injury, and, therefore, the case was not "free from doubt"; and
(iii) that the point from which the accused witnessed the occurrence, as alleged by the eye- witnesses when examined in the light of the site plan, did not appear possible and it was, therefore, "doubtful" whether the witnesses had actually witnessed the occurrence. However, he hastened to add that he did not desire to record any finding as to the genuineness or otherwise of the contentions raised at this stage and went on to observe:- "Ordinarily, bail is not allowed in a murder case especially in the case when the allegations against the person mentioned in the F. I. R. If left unrebutted render him liable to a sentence of death or transportation for life. However, if the allegations against a person require further enquiry to connect him with the commission of the offence as in the present case, bail is to be allowed to such a person. "
12. (Underlining is ours)
13. ' These two appeals, with leave of this Court, are directed against the last-mentioned judgment passed on 21-3-1984 by the High Court.
14. This Court, while granting leave to the appellant, observed:- ``Apart from the question whether the term 'further inquiry' occurring in subsection (2) of section 497, Cr. P. C. Has been correctly construed, the question also of the effect of abscondence of the accused for a period of about six months, on their right to the grant of bail, requires to be considered."
15. ' This Court has had the opportunity of examining both these questions in a case recently decided by it, namely, Ibrahim v. Hayat Gul and (Here in italics] another (Criminal Appeal No, 16-P of 1984)
(1) where the meaning of the phrase "further inquiry" occurring in subsection (2) of section 497, Cr.
16. P. C. As also the effect of abscondence while considering the question of bail in non-bailable offences, have been discussed.
17. ' So far as the scope of the phrase "further inquiry" is concerned its true meaning is explained as follows:- "The relevant provision of section 497 in this behalf reads as follows:-
497. When bail may be taken in case of non-bailable offence.-(1) .
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that. The accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such 'officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
18. This provision does not leave it to the discretion of the Court to withhold bail to a person accused of a non-bailable offence. It has to be allowed to him as of right under'this provision if an important prior condition is fulfilled, namely, that the Officer incharge of Police Station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that `there are no reasonable grounds for believing that the accused has committed a non- bailable offence'. Without such finding by such officer or the Court the accused would not be released on ground of further inquiry under subsection (2). And similarly if such a finding is recorded the accused cannot be denied the right of bail granted to him by the same provision. In the present case neither the officer nor the Court concerned recorded the prerequisite finding. That being so the respondent could not be released on bail on ground of so-called 'further inquiry' under subsection (2) of section 497, Cr. P. C."
19. ' As for the effect of abscondence, the Court referred to its earlier decision in A wal Gul v. Zawar Khan etc. (Criminal Appeal No, 15-P of 1984 decided on 28th November, 1984) in which the law in respect of persons who become fugitive from law was laid down. Herein, it was observed that "a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law" and it gas added that "unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case"; and went on to observe that- "in some rare cases notwithstanding abscondence the accused might be released on bail; for example; when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr. P. C. And/or the so- called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to, abscondence."
20. ' It is in the light of the law laid down by this Court in the above decisions
(1) 1985 SCM R 382 that the effect of the abscondence by the respondents on their right to obtain bail will fall for consideration.
21. ' As regards the first question whether the term "further inquiry" has been correctly construed by the learned Judge in the High Court is concerned we note that according to him "ordinarily, bail is not allowed in a murder case especially in the case when the allegations against the person mentioned in the F. I. R. If left unrebutted tender him liable to a sentence of death or transportation for life. However, if the allegations against a person require further enquiry to connect him with the commission of the offence as in the present case, bail is to be allowed to such a person."
22. ' This enunciation of the law, evidently is not in accord with the interpretation of this phrase given by this Court in the aforementioned case of Ibrahim v. Hayat Gul and another (Cr. Appeal No, 16-P of 1984). Herein, as it has been seen, it is observed that bail under subsection (2) of section 497, Cr.
23. P. C. Is to be allowed only if the prior condition is fulfilled, namely, that the officer in charge of the Police Station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that "there are no reasonable grounds for believing that the accused has committed a non-bailable offence" and the "further inquiry", that is necessary, is only with respect to the question whether there are sufficient grounds for believing that the accused has committed a non-bailable offence. Thus, the view taken by the learned Single Judge on this question that bail will not be allowed in a case when the allegations against the person mentioned in the F. I. R., if left unrebutted, render him liable to be sentenced to death but nevertheless may , be allowed bail if further inquiry is necessary to connect him with the commission of the offence cannot be accepted as correct. As pointed out already, bail is to be allowed only where no reasonable grounds exist for believing that the accused has committed a non-bailable offence, but their are sufficient grounds for further inquiry into his guilt. Normally, I reasonable grounds exist for believing that the accused has not committed a non-bailable offence he should not be tried at all for having committed any such offence. But if, however, sufficient grounds for further inquiry into his guilt exist there would then be some justification for putting him on trial for the offence for which he is charged but in such an eventuality the law entitles him to bails during the pendency of the trial, subject, of course, to cancellation of bail under section 497(5), Cr. P. C; on availability of the evidence or other sufficient cause.
24. ' It is urged, therefore, by the learned counsel for the complainant that as the provisions of subsection (2) of section 497, Cr. P. C. Have not been properly construed by the learned Judge in the High Court the respondents have unjustifiably been granted bail under subsection (2) of section 497, Cr. P. C. By him, which may be cancelled.
25. ' Agha Aziz Ahmad, learned counsel for the respondents, however, submitted that the High Court was justified in granting bail to the respondents and referred to Jaffar and others v. The State (1) in support of this submission. In that case, the material on the record did not show as to which of the accused had caused the fatal injury "leaving room for consideration regarding common intention of other accused to kill the deceased". In these circumstances, it was held that it was a case of "further inquiry under section 497(2), Cr. P. C." Learned counsel also
(1) 1980 SCM R 784 relied upon certain other judgments of this Court in which the phrase "further inquiry" was construed in the same sense, in which the learned Judge in the High Court has construed this phrase in his impugned judgment. In this connection, attention was invited to Khalil-ur-Rehman v.
26. The State (1) and emphasised the following passage occurring in the judgment :- "These facts would show that it is not just a case of a counter-version having been put across by the petitioner's father for the purpose of obtaining bail, but that there was some foundation for the allegations made by him. This being the case, the learned Additional Sessions Judge was not wrong in allowing bail to the petitioner on the ground that the counter-version put forward by him and his father indicated that there was need for further inquiry within the meaning of subsection
(2) of section 497 of the Criminal Procedure Code."
27. ' He also drew our attention that the case of Falak Sher and another v. The State (2), especially the following observations made therein :- "Since the prosecution version in its very nature leaves much to be enquired into and the case being of a further inquiry, the order of the High Court which ignored this fundamental characteristic of the case cannot be maintained. It is to be pointed out that section 497(2) of the Cr. P. C. Itself authorised grant of bail in cases of further inquiries."
28. ' Mr. Bashirullah Khan, learned Assistant Advocate-General, N.-W.F.P. On the other hand, submitted that bail could not be granted under section 497(2) of the Cr, P. C. In a non-bailable offence when the final report under section 173 has already been submitted before the trial Court. In this connection, he relied upon Ch. Muhammad Khan v. Sanaullah and another (3), wherein the learned Judges observed :- "The remark by the learned Judge that 'the evidence on the Police record ex facie shows that the case of the petitioner requires further inquiry' was equally unwarranted. The final report under section 173, Cr. P. C. Having been submitted in the Court of the Inquiry Magistrate and the statements of a number of witnesses recorded by him, section 497(2), Cr. P. C. Was not attracted.
29. There is no other provision in law under which a further inquiry could be made by the police."
30. ' The above decision was followed in Akbar All v. The State (4), wherein it was held that the final challan having already been submitted to the trial Court bail under subsection (2) of section 4S7, Cr. P. C. Could not be allowed.
31. ' The last mentioned judgment merely follows the dictum in the case of Ch. Muhammad Khan v.
32. Sanaullah and another and this is so stated. We may, however, point out with the greatest respect that while taking the view, which has been expressed in these judgments, the learned Judges appear to have overlooked the words to the effect "if it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be " (underlining is by us), occurring in subsection (2) of
(1) 1979 SCM R 168 (2) 1979 SCM R 103
(3) PLD 1971 SC 324 (4) 1979 SCM R 132 Mere in italics) section 497. Hence, it is not possible, speaking with the utmost respect to adhere to the view taken in these judgments because in our humble opinion no such limitations to the exercise of powers of granting bail by E the Court exist under subsection (2) of section 497, Cr. P. C.
33. ' Coming to the contention that the learned Judge in the High Court has not properly construed the provisions of subsection (2) of section 497, Cr. P. C. Which is evident from a perusal of this Court's recent judgment in Ibrahim v. Hayat Gul and another (Cr. Appeal No, 16-P of 1984) suffice it to say that a perusal of the judgments relied upon by the learned counsel for the respondents and some other judgments delivered on the subject shows that Courts while allowing bail under section 497(2), Cr. P. C. Have not been pleased to use such language as may exactly conform with the terms of subsection (2) of section 497, Cr. P. C. But a careful perusal of these judgments also reveals that bail was allowed only in those cases where the prior condition, namely, that on consideration of the entire material there was no reasonable grounds for believing that the accused had committed a non-bailable offence was fulfilled. But further inquiry into under section 497(2), Cr. P. C. Has been exercised properly or not by F. His guilt was still necessary. Thus, in determining whether the power Court it will be the substance rather than the form in which the order is couched that will have to be seen.
34. ' In the present case, the impugned order of the learned Judge, read as a whole, shows that he was satisfied that there were reasonable grounds for believing that the accused had not committed a non-bailable offence, but further inquiry into his guilt was still necessary. Hence, his order cannot be held to be bad on the ground that the phrase "further inquiry" occurring in subsection (2) of section 497, Cr. P. C. Has not been correctly construed by him, though it would have been preferable if he had employed G the correct formulation for expressing his intention. We would expect that in future the learned Courts dealing with this question shall conform to the terms of the law on the subject more accurately in the light of the observations made in this judgment.
35. ' But as regards the other question vie. The effect of abscondence of the accused for a period of six months on their right to obtain bail we feel that this question has not been given due attention by the learned Judge in his order. The effect of abscondence, as explained by this Court in its two recent judgments, is that the person becoming a fugitive from law loses some of the normal rights granted to accused persons by the procedural, as also substantive law and disentitles himself to the concession of bail H notwithstanding the merits of his case, unless he can satisfactorily explain) the period of his abscondence.
36. ' Sadiq respondent (in Cr. Appeal No, 100/1984) did attempt to explain his alleged abscondence by producing some evidence before us to the effect that he was employed at Karachi and was working there during the period when the incident took place. We, however, think that the trial Court is the appropriate forum where this explanation should be offered in the first instance.
37. On this view of the matter, the orders of the learned Sessions Judge as also those of the High Court granting bail to the respondents are liable to be set aside on the ground that the effect of their alleged abscondence on their right to obtain bail has not been considered. If they can satisfactorily explain their alleged absence of some six months, following the incident and registration of the case before the learned Sessions Judge he should grant bail to the respondents without adverting to the other aspects of the case because these have been looked into by the learned Sessions Judge and the learned Judge in the High Court already and we would not like to interfere with their discretion in that regard.
38. Here, we may also clarify that this Court does not normally interfere' with the discretion exercised in such matters by the learned Courts below' and this practice sometimes results in the impression that the Supreme Court is approving orders which are contradictory in that in certain cases grant of bail by the High Court is upheld while in others, where the circumstances are similar but the High Court has refused bail, it is not. This does not mean that two contradictory rules have been approved by/ the Supreme Court. The true position is that this Court does not normally! Interfere with the discretion exercised by the lower Courts and the rule to be deduced from the refusal to interfere with the orders of the Courts below by this Court where seemingly different views have been expressed is that this Court has merely not interfered with the discretion exercised by the said Court and not that it has approved any rule laid down by it. This is exemplified by this very case.
39. Herein although the rule laid down by the High Court on the merits does not have our approval but we have nevertheless refrained from interfering with the exercise of discretion of the High Court to the effect that the respondents are entitled to bail, subject, of course, to a satisfactory explanation by them of their alleged abscondence.
40. ' The upshot is that these appeals are allowed. The orders of the learned Sessions Judge and those of the High Court granting bail to the respondents in both the appeals are set aside and the bail granted to them is cancelled. But the accused will be at liberty to move the learned Sessions Judge, Mansehra again for bail and if they can satisfactorily explain their alleged abscondence before him, they shall be entitled to the grant of bail by him.
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