' FA KHRUDDIN H. SH AIKH, J.-Respondent Aziz alias Abdul Aziz, along with others, was involved in a case under sections, 302, 307, 452, 148/149, P. P. C. The incident related to murders of Shah Muhammad and Muhammad Amin. According to the F. I. R. Lodged by complainant Allah Bux, respondent Aziz alongwith All Gohar, Hakim, Ghulam Rasool, Gul and one unknown person had entered his house at 1.00 a. m. In the night armed with daggers. All the above persons are alleged to have caused injuries with daggers to the two deceased persons Shah Muhammad and Muhammad Amin, as a result of which both of the victims died. Complainant Allah Bux also received some injuries. It is alleged that on hearing the cries, Din Muhammad and Muhammad Saleh hid woke up and caught hold of the unknown person, while the other accused persons ran away, but not before they were identified by the above witnesses and the complainant in the light of a bulb which was lighted in the house. The unknown person, who was caught red-handed, gave his name as Shaman.
2. The case was investigated by Shandadkor Police and challaned before Sessions Judge, Lariana.
Bail application was moved on behalf of respondent Aziz before the Sessions Judge, who transferred it to Additional Sessions Judge, Larkana for disposal, although the case was pending with the Sessions Judge. However, the Additional Sessions Judge (Mr. Deedar Ahmed Soomro) heard counsel for the parties and allowed the bail application of Aziz on the ground that identification in light of the bulb was not sufficient and that the case against him required further inquiry.
3. The record of the bail application was summoned from the Court of Additional Sessions Judge, Larkana on a complaint made by the complainant to this Court that the learned Additional Sessions Judge had released accused Aziz on bail in spite of the fact that he had remained absconding for 16 months and that he was an influential person.
4. We have generally observed that the implications of the words `further inquiry' appearing in section 497 (2), Cr. P. C. Have not been correctly understood by the Sessions Judges/Magistrates.
The result is that bail is granted even in most serious cases on the premises that the case would call for further inquiry. It was, therefore, thought necessary to interpret these words and to explain their correct import,
5. In these circumstances it was ordered that notice should be issued to the respondent to show cause as to why his bail should not be cancelled. We also asked Mr. Muhammad Hayat Junejo to assist the Court as amicus curiae in interpreting the words 'further inquiry' appearing in section 497 (2), Cr. P. C.
6. So far as the grant of bail to Aziz is concerned, the learned Additional Sessions Judge has stated that the incident had taken place at mid-night and that in their statements under section 161, Cr. P.
C., the P. Ws. Have not clearly specified that the culprits were identified on bulb light. Under the above circumstances the learned Additional Sessions Judge was of the view that the case of the respondent fell within the ambit of further inquiry and as such he was entitled to bail. In support of his view the learned Judge-relied on 1983 P Cr. L J 1426, in which it was held by Z. C. Valiani, J. That where several accused persons had a chance meeting with a victim to whom they caused injuries, the question as to whether all the accused acted in furtherance of their common intention and which of the accused was responsible for causing fatal injury to the victim, would be a question for further inquiry and that the accused would be entitled to bail.
7. Reliance was also placed by the learned Additional Sessions Judge on 1980 SCMR 784 in wnich it was held that when several accused persons cause injuries to the victim, then the question of common intention and the question as to which of the several accused was responsible for causing fatal injuries to the victim shall, call for further inquiry and consequently the accused shall be entitled to bail.
8. We have heard the learned Additional Advocate-General Mr. Abdul Sattar Shaikh, Mr. Muhammad Hayat Junejo and Mr. Muhammad Ali Shaikh on the implication of the words `further inquiry' appearing in section 497(2), Cr. P. C. Which is reproduced hereunder :- "(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'."
It would appear that in order to hold an accused person entitled to the benefit of the above section, two condition must be satisfied namely -
(a) that there are no reasonable grounds for believing that the accused has committed a non- bailable offence ; but
(b) that there are sufficient grounds for further inquiry into his guilt.
' The conjunctive `but' appearing in between the above two sentences indicates that the same are to be read conjunctively and not disjunctively. Consequently finding as to existence of condition
(a) is sine qua non for holding that there are sufficient grounds for further inquiry into the guilt of the accused.
9. The words 'further inquiry' have not been defined anywhere in Cr. P. C. However, in section 436, Cr.
P. C. The words 'further inquiry' have-been used, but in a different context. This section gives power to the High Court to direct a Sessions Judge to require any Judicial Magistrate subordinate to him to make further inquiry into a complaint which has been dismissed under section 203 or subsection
(3) of section 204, Cr. P. C. Or into the case of a person accused of an offence of which he has been discharged. The implications of the words 'further inquiry' appearing in section 436, Cr. P. C. Are, therefore, different from those which relater to these words in section 497 (2), Cr. P. C.
10. We have come across several decisions in which learned Judges of the High Court have referred to certain circumstances in which it could be held that the case of an accused person would call for further inquiry. In the case of Muhammad Ashraf v. The state (1) the version given in the F. I. R.
Disclosed that there was a sudden fight between the parties in which one injury was received by an injured witness and the medical certificate did not disclose the basis of opinion regarding the nature of injury being grievous. It was held that this fact required further inquiry and that the accused was entitled to bail. In the case of Noor Muhammad v. The State (2) Sajjad Ali Shah, J. Held that where the parties indulge in sudden fight and injure the members of both the parties and the question as to which of the parties was aggressor is yet to be determined, then the case would fall under section 497 (2) so as to call for further inquiry.
11. In the case of Ghulam Abbas v. The State (3), the applicants/accused were charged with the offence of murderous assault by ineffective fire and attempted two hatchet blows to the victim, but the same got stuck and no one received any injury, nor bullets were recovered from the crime weapon, nor the crime weapon was sent to the Ballistic Expert. It was held, under these circumstances, by Saleem Akhtar, J., that the case would call for further inquiry under section 497(2), Cr. P. C. And the accused were entitled to bail. In Abdul Hameed and others v. The State (4), there were cross-cases filed by contending parties against each other and accused in the counter-case under section 307, P. P. C. Were already granted bail, while four accused on the opposite side had received several injuries out of which two were declared grievous. One of the accused, who was alleged to have caused simple injury to deceased person of the opposite-party, had applied for bail. It was held that the question of vicarious liability of the said petitioner for the crime committed by the co-accused, would tie a matter for further inquiry, so as to entitle the petitioner to bail under section 497 (2), Cr. P. C.
12. It would thus appear that the question of further inquiry in each case is to be determined with reference to the particular circumstances of that case. It may generally be laid down that under following circumstances a case would call for further inquiry provided the Judge/Magistrate is, on consideration of all the facts of the case first, of the opinion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence.
(i) When out of the several accused only one is said to have caused fatal injury and the question is whether the co-accused had common intention with the person to whom the fatal injuries have been attributed, in other words whether the co-accused are vicariously liable for the act committed by the main accused.
(ii) When there are cross-cases where the contending parties have made allegations again each other and from the record available before the Judge or Magistrate it is not possible to determine as to which of (1: 1982 P Cr. L J 203 (2) 1982 P Cr. L J 239
(3) 1982 P Cr. L .1 597 (4) 1984 P Cr. L J 475 the parties was the aggressor or which of the accused was responsible for causing fatal or grievous injuries.
(iii) In cases of hurt the medical certificate produced by Medical Officer does not disclose the basis of the opinion as to nature of the injury.
(iv) When there is material inconsistency between ocular evidence and the medical certificate as to the nature of the injuries, or as to the weapons used, or as to the time of the incident and the inconsistency is such that it renders the prosecution story prima facie incredible.
(v) When the name of the accused is placed in column No, 2 of the challan after having been declared innocent by the Police (see Shafqat Elahi etc. v. The State 1982 P Cr. L J 1162).
(vi) When the material before the Court indicates the accused might have committed a less heinous crime than the one alleged by the prosecution. For instance where the victim died of one fist blow or a kick given by the accused on stomach of the victim and it is found from the medical report that the victim suffered from enlarged spleen and died of rupture of the spleen. The question whether the accused had knowledge that the victim would die as a result of one fist blow or a kick due to rapture of spleen, shall be one for further inquiry.
(vii) Where from the facts disclosed the question arises whether the accused had exceeded the right of self-defence (see Bashir Ahmed v. The State 1982 P Cr. L J 1163).
13. The above list of circumstances is in no way exhaustive. It may, however, be clarified that before the case of an accused person is found to fall within the ambit of 'further inquiry' under subsection
(2) of section 497, Cr. P. C., the Court should first come to the definite conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. After coming to this conclusion only the Court is entitled to embark upon determination of the question whether any of the circumstances exist which bring the case of the accused within the ambit of `further inquiry'.
14. After we had heard the learned counsel in the case and the order was reserved, an unreported decision of Supreme Court in Arbab ,Ali v. Khamiso and others Cr. P. S. L. A. No, 57-K of 1984 (1), dated 3rd September, 1984, in which implications of section 497(2), - Cr. P. C. Were considered, came to our notice. In the above case, while clarifying the words 'further inquiry' it was observed as under "There are certain other features also in this case which have not been attended in the High Court before giving a verdict that it was a case, of 'further inquiry'. It needs to be clarified that Dail can be allowed in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 497 under subsection (2) of section 497, Cr. P. C., when there are sufficient grounds for further inquiry into the guilt of the accused but only on the condition when the Police Officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds
(1) 1985 SCMR 195 for further inquiry. This aspect of the relevant law has also not been brought to the notice of the learned Judge of the High Court."
15. The above observations support the view that we have taken in para. 13 above.
16. Applying this rule to the order of the learned Additional Sessions Judge, Larkana we find that the learned Judge has not correctly applied the law as laid down in section 497(2), Cr. P. C. Without coming to the coanclusion that there were no reasonable grounds to believe that the accused has committed a non-bailable offence, he held that the case called for further E inquiry. The question whether identification in the light of an electric bulb was or was not possible, could by itself never be one of further inquiry, Moreover the learned Judge has not adverted to the effect of abscondence of the accused for 16 months.
' We, therefore, set aside the order of the Additional Sessions Judge, Larkana and remand the case to Sessions Judge Larkana, who shall himself decide the question of bail of this accused afresh in the light of the observations made in the order. We may also observe here that the main case is pending with the learned Sessions Judge, hence he should not have transferred the bailiff application to the Additional Sessions Judge.
' ABDUL HAYEE KURESHI, C. J.-I agree with opinion recorded by my learned brother Fakhruddin H.
Shaikh, J., but I would like to add a few words of my own.
For the purpose of understanding the correct import of the words "further enquiry" as used in subsection (2) of section 497, Cr. P. C. It would be necessary to read the provisions contained in subsection (1) and subsection (2) of section 497, Cr. P. C. In juxtaposition. It is a cardinal principle of interpretation that in the same statute, more so in the same section if two divergent principles are stated for the grant or refusal of relief the Court has to read such principles in juxtaposition and attempt to find out a method whereby fusion could be created between the seemingly different criterion laid down in the two provisions. What is more, redundancy or conflict cannot be easily ascribed to any provision contained in legislation.
' Having stated the above principle in regard to interpretation it is necessary to examine the provisions of subsection (I) of section 497, Cr. P. C. In the first instance. The relevant words in the context of this matter are the following "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 imprisonment for life or imprisonment for ten years."
A plain reading of the above words clearly show that in the grant of bail a Court has to decline relief if there are reasonable grounds to believe that the accused person has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. There can, therefore, be n3 two opinions that even if evidence is not recorded in a given case but material is available on the record to show only reasonable grounds as distinct from proof which may persuade the Court to believe that a person is guilty of a serious offence bail shall not be granted.
The use of the words "grounds" and "believe" is very significant and meaningful for grounds for believing could not mean proof for establishing the guilt of an accused person. If these words are to be equated with proof to establish the commission of an offence absurd result would flow, for such proof can be recorded only after evidence comes on record and the evidence is of a nature as must convince the Court that the accused has been guilty. This meaning cannot possibly be ascribed to these words namely "grounds" and "believing". If such an interpretation was to attach to these words the entire scheme of section 497, Cr. P. C. Would become absurd for in that case any person could claim bail as of right because the evidence is not recorded or if recorded is not full evidence and, therefore, could not lead the Court to a conclusion that accused was guilty.
' Coming to subsection (2) of section 497, Cr. P. C. It is best to reproduce the provision itself. The portion of subsection relevant to the present question reads ai follows "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."
It must first be observed that before the words "further inquiry" the subsection states that it should appear to the Court that there are not reasonable grounds for believing that the accused has committed a non-bailable offence. Unless a Court comes to the conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence the Court cannot enter into the question of sufficiency of grounds for further enquiry. In fact the question of further enquiry would only arise I if the Court first comes to the conclusion that reasonable grounds do not exist for believing that a person has committed a non-bailable offence.
On the other hand if the Court comes to the conclusion that there are reasonable grounds to believe that the accused has committed the offence there is no question to Court holding a further enquiry into that matter for the purposes of grant or refusal of bail. Taking the other view would be pulpable absurd. In these circumstances the only reasonable conclusion is that the K question of a case requiring further enquiry can come up for consideration only if the Court is of the view that reasonable grounds do not exist for believing that the accused has committed an offence.
The use of the words reasonable grounds for believing repetitively in subsections (1) and (2) of section 497, Cr. P. C. Is a further indication that the paramount criterion governing the grant or refusal of bail is the existence of reasonable ground to believe that the accused has committed an offence. If such enquiry is undertaken by the Court in the first instance and an affirmative finding is given by the Court to the effect that reasonable grounds do exist for believing the accused to be guilty the second enquiry contemplated by the words "further enquiry" in subsection (2) of section 497, Cr. P. C., would be meaningless and almost an exercise in futility for if on the one hand the Court comes to the conclusion that there are reasonable grounds to believe that the accused is guilty of an offence punishable with death or imprisonment for life or ten years there is no question of holding any "further enquiry."
The next question that arises is as to the material on which the Court can arrive at a conclusion that reasonable grounds exist for believing that the accused has committed such an offence. In that context the material is what would be available on the judicial record, and in the police papers if also available, and what emerges from section 164, Cr. P. C., statements recorded at pre-trial stage. It is duty of the Court to examine these documents and if on a perusal of these documents a conclusion could be reached that there are reasonable grounds to believe that the accused has been guilty of an offence punishable with the serious sentences provided in law it is the bounden duty of the Court to refuse bail. On the other hand if all the material as is stated fails to convince the mind of the judge that there are reasonable grounds to believe that the accused is guilty of an offence punish able with these sentences he would be justified in granting bail.
' I agree with the order proposed by my learned brother and the Sessions Court shall now comply with the same.