' This is an application under subsection (5) of section 497, Cr. P. C. Filed by the applicant Dr. Behram Khan, brother of deceased Muhammad {{BLURR}} Sadiq son of Malik Taj Mir Khan, for the; eanceRatiee oftibaiiinfleftpondent No, 1 Naseer AhRe4i,401,0 Bache KhaIk'ninsVf llate-BaraKhailreaste Achaczai, M. P. A- ir11A,Or CbactWl8TaltOd lilthecikarnesirSssions Judge. Quetta by hisjec,4 r,ictatect 22nd July, kilfkle-114 brief fitOtnileading to v14 the tiling of the abow sation are that on-201gitkinicipt9Watf:9-ad;r1p. m.
Bashir Ahmed. Son ofHaji Habibullah Khan, caste Achakzai, resident of Murcia Karez Road, Chaman lodged F.I.R. With therolice Station, Chattan, which was recorded by the S. H.
0. Muhamniaq Jan.,,nnder section 302/109, P. P. C. Against the respondent No, 1 and Itiki*ree brothers stating as follows SI/SHO 13-11 I ,A4 av- v4At ii.u. Ul,ibYwietur-614. k.11.6141ked IS 4"'I'-", 8/45 4''13. CT '45-- - lil JJ0J- Z*4-4 &1-4'','44ii.: 4411444e.r'.1. 4). A., it ijal, a 431.4.16 jp,A*Jrcis 6..)
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AKkhr - tat" c.14,1, ,g ,. .)):04' pek cApt-4! .-'44A p blik:=1,1 $40 ;A - 14J rt.; lS er. L;44 r Li3to 4'.1. It r 5'3,4 ,2,-,,,,) ip.. #Je - ..:-..4 '
4S 4144, Oi J1414 j,k1; &Oak, .r*' g- 144, 7145W)., 34 4 -..-6',0 .4-4-# k.C.W,A1 liel'';i'25=-6498521/4. #TBS S I/ SI-11:10...14. A.. Jai #TBE hvoglt -Upon lodging of tlit''-above report, the S.H.0, 'visited t of incident and sent the dead' 'body of the deceased Muhammad SddAl for post-mortenutolthcavitlIkkipital, Chaman. '41e-'iiiCoided:ptlie state ants of Bashir Ahmed son of Haji Habibullah Khan; the eoinpliiitient: IvIiiiibor Ahmed son of Haji Habibullab Khan, Sher Muhammad sot ''of RahCent:MOYVb.941.104h soil- of Ilej I Abdul Zahir :',:osi- .The same 'Wight.- On the same day,,,,*:, , plicipotho:arxestedthe respondent No: 'I fronfliiihtiuse in Chaman. On the following tday,ihoprepared the `Mushirnattie?Nt the rrcovertesigt 40094,staiPedfAaftboafrthe plecnof incident.. Blood-Stained shirtof 42,npeceasedililapidrowined hupetsjand also recorded the statement of the iiVfashirs'. He also got the sketch prepared by the Patifitil oft the place of incident. On 26,144twet.084.He also obtained :::rignand7of the respondent NO. I fiir, fi)ie4Wat.Frknin the AssistAnt, cnaniarognettiA,P.M., Chaman. Blii`3rd July, I, 41, sent ,three sealedliaccids;;.oPtile,itwovery for transmitting to, the Cfietiileal Analyser. On llth July, 1985, he obtained search-warra is of the resOdinienfiNa. I's house for arrestifiethe reinOndent No, l's three brothers, who were absconding, but in spite of the search carried out, he was unable,19,,17,444e4b6spn 15th July, 1985, he recorded 161 statements of three more witnesses,,inamely..Allauddinsqp,9t, Le,K,han {{BLURR}} {{BLURR}} ca4e2Ashezai, Zafrullah ion of Taj Muhammad, caste Hameedzai and Jalaruddia ion of liaji.Multaganad Khan. On the following day, i, e. 16th July;1985:he recordei:r16i statement of Abdul Ali son of Haji Abdur Raheem, a close relation of the applicant. Rit'seeins that the/respondent No, 1 ontheexpiry of the above five days police remand on 30th June, 1985, by an order of the Assistant Commissionfr4S:Q4d., Chaniallwas shifted to the jjsul;Ir pabcustody. He moved an a le tidil 'car bait before the learned ions Judge, Quetta- on 8th Ju ftYaK It had come up for hearing on 14th July, 1985 when it was ,!Submitted by the two counsel for the complainant party dnetrie9istilet Attorney thaf`the Police papers were not available. retip6n,I the case Was adjourned to 20th July, 1985. However, the learned counsellor the respondent No, 1 founti.That factuallythe Investigating Officer was sitting in the office.Of the District Attorney.Withithe relevant Police papers. He, therefore, requested the !Earnedesstons Judge to hear the bail 'applicatiOd.7tthe same"was ante-dated for 15th Jdne, 1985. It is the ease of respcindent No, 1 that on the latter date, at the request of the District Attorney, the case tae adjourned to 20th July, 1985. The" learned Sod'trudge," Quetta eftegAgaringtheAarued counsel for the parties by, his order, ;dated andblYe leafirhiliflAdmitted the respon- dent Np. I to baiLon she conditioe that if Autkieenently, the material evidence is enhactedeagainat.
The accused/respondent No 1, the prosecution can move for cancellation. The operative portion of the order reads as follows "Ccnsidering all the arguments of the Advocates for the parties and of the District Attorney, I find that there is solitary evidence of P.V. Abdul Ali, whose evidence has been attached by 'the-defence Advocate on a number of grounds. I refrain from making, any comments`regarding the evidence of P. W. Abdtiks,,Ali. The ease is still under investigation and as such I find that it is a case of further inquiry. Assuch I find that the accused/applicant is entitled to bail. To safe 'part the interest of the prosecution, the accused/applicant is ordered to be released on bail after furnishing two sureties in the sum d' Rs, 50,000 each with P. R. Bonds in the like amount. The prosecution can move for the cancellation of the belief the ;, accusedirr accusediappli srliently.Material evidence is collected.Against the The epplicenkhes, theefore, filedtheipresent applicaiion.
47' '
2. In; rrfff the ahoveepplication, 14ril .TAffiya_ learned counsel for thd -fiststed by Messreichelig Melikencigtikhar Muhammad, Advecates has tined as follows :- r rsid .01
(i) that on the basis of the material on record, the learned Sessions Judge could not have pressed into service subsection (2) of `settinti.4197, Cr. P. C. that otherwise, the reiuirements of above subsection (2) of section 497, Cr. P. C. Have tot been complied with, and
(iii) that the police has not invstigated the case properly because the respondent No, 1 being M.P.A has considerable influence.
3. Mr. Amirul Mulk Menge, leaned Advocate-deneral appearing for the State has adopted the argunients t- Mr. Yahya Bakhtiar. Advocate
4. {{BLURR}} 5. subject to his submission that the allegation of the applicants that the Police has not investigated the case properly or is not taking proper interest because of the influence of the respondent No, 1, is untrue.
' Mr. Muhammad Aslam Chishti, learned counsel for respondent No, 1 has submitted as under :-
(i) that the learned Sessions Judge was justified in pressing into service subsection (2) of section 497, Cr. P. C. On the basis of the material available;
(ii) that the learned Sessions Judge has substantially complied with the-requirements of subsection (2) of section 497, Cr, P. C. ; and
(iii) that the allegation of the applicant that the Police has not investigated the case properly, is incorrect.
4. Before going into'the details of the above submissions, it may be pertinent to reproduce the relevant portion of subsection (1) and subsection (2) of section 497, Cr. P. C. Which reads as follows :- "497 (1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appears reasonable grounds for believing ?Bat he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.
' Provided........................... released on bail.
' Provided further. ....... ...... . not be so released.
' Provided further............................................................................................................. shall be released on bail.
(a) who being ................................................................................................................ has not concluded ; or
(b) who, being................................................................................................................ offence has not concluded.
(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 no reasonable grounds for believing that the accused has committed a non-bailable offence; but that there are sufficient grorunds 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."
' A perusal of the above-quoted reIevarit portion of subsection (l), of section 497. Cr. P. C. Indicates that when a,ny person accused of any non-bailable offence is arrested or detained without warrant by an officer-incharge of a police station or is brought the fore a Court, he may be released on bail, but he shall not be released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, whereas subsection (2) of the above section provides that where it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be (i) that there are no reasonable grounds for believing that the accused has committed a non- bailable offence, but (ii) there are sufficient grounds for further inquiry into his guilt ; in such event, the accused shall pending such inquiry, be released on bail at the discretion of the officer-in- charge or the Court on execution by him a bond without sureties for his appearance.
It is, therefore, evident that whereas subsection (1) prohibits the grant of bail to a person accused of any non-bailable offence if there appears reasonable grounds for believing that he is guilty of the offence, whereas. Subsection (2) entitles an accused person charged of a non-bailable offence. A to a bail if it appears to the othcer-in-.Barge of the police station or to the Court that there are no reasonable ground for believing that the accusec has committed a non-bailable offence, but there are sufficient ground for further inquiry into his guilt.
5. The moot question in the instant case, therefore, is as to whether the above subsection (I) of section 497, Cr. P. C. Was attracted to the facts of case or whether subsection (2) of the above section has been properly pressed into service by the learned Sessions Judge.
' In order to arrive at the correct conclusion it will be necessary to refer to the material on record. It comprises of the police statements of the above witnesses referred to hereinabove. The complainant Bashir Ahmed and Manzoor Ahmed were with the deceased at the time of the incident. Both have stated that they were going with the deceased at 8-15 p. m. On Taj Read towards the hospital and on the way while Noorul Haq was embracing Muhammad Sadiq at the street of Peromal Road, a silver gray car having Monogram of M.P.A. From the north side of. Peromal Road came into Taj Road and hit Muhammad Sadiq and Noorul Haq who fell down on the ground.
Thereupon, Manzoor Ahmed, remarked that {{URDU TEXT}}After that the deceased Muhammad Sadiqwent to the side of the person driving the car and inquired "ail,{{URDU TEXT}}Thereupon, Jamal Nasir, the elder brother of the respondent No, I who was driving the car, all of. a sudden, took out white colour revolver and fired two shots, one of which was hit at the chest of the deceased resulting into his death. Both have stated that the respondent No,.1 alongwith two younger brothers was sitting on the back seat of the car. None of the above two witnesses has attributed any overt act on the part of the respondent No,
1. However, Bashir has repeated the allegation of conspiracy by stating that : {{URDU TEXT}} ' The other three eye-witnesses i. e. Noorul Haq, Ubedullah and Sher Muhammad, whose statements were also recorded on the day of incident, describe the occurrence in more or less in the identical terms but without stating that the respondent No, 1 was present on the back seat of the car. Noorul Hay, Ubedullah have stated that after offering their 'Asar' prayer at the shop of Muhammad Akhar a local 'AttiitaitiN LEGAL DECISIONS Va. tIOCViii #TBS attributed to #TBE #TBS 9n 16th July, #TBE #TBS .. However, #TBE #TBS 4 ,it was-done, #TBE #TBS n,,the gtouud. #TBE #TBS o. I and his two othofatbrotbera Zf,IAVenti Iiittim hit 5 N9oral74714%;;AO4 #TBE #TBS in the manner already stated hereinabove. Whereas, Sher Muhammad he oiled that he was about 15-16 paces from the place incident. The other thrttFuitnesses, namely, Allauddin, Zafrullah ,anit'aJalaluddirt whose poliec tateinitits were recorded after 3 weekeic445titriblyV 1985', shave also not' k' tEldt4 tI.-"wiry;,--att4ibated, any oven , ofit, Iv thelimpundeilVNu. I. ";/Vittialke Allandditt flind t 44ar Fhiciy was,i driyetiby japiai ,Htieroir (Allot, A411404,41)0 ,respondent #TBE #TBS 4*tilll soft drink. After that ilifylptt : , iv went from the side riii er mitl'toid to Taj Road, where the'afOretai " incident had occurred, 113 ngalow where they offerg VOI 1,, t,ktptife: *Thpy were #TBE #TBS denyNo, 1, he greeted them. There $5t10,,*(libki went #TBE #TBS S . M. When they were passing by the side of the bungalow #TBE #TBS I were doing towards the TrenCh3Ritbad alongwith #TBE h . fitt ix igig a91 belx. Yv.4 ly,4.0 'es e 14.- .Pc n a Asir; . r statein o is a c otlfe as st 4F4t No, 1 .Bisc:31 Iwo-. LI:1.1k 04 klIff81 Ircg141?F tk,Rle; ,IS hfle Oelicv94 the volate , tA,49, ttg ;.p4 ktfltif the, above WitaASS ill 114.1 ffa, ot,pagi . Tp imii0 on eck in o has n eter tq urtlihne a ove ttn es. It , edit r.49k Ilishti, Adv .6 that the complainelis-041S, tin& tilt, District MicalhOliibbtained adkinrniiertithott liSlIt Joly,L4985 initiheibaili4pplicationandirst Ititch gotioyei,?Stdtanent otivitutlii. Abdul Adiirecatdedlonu46th JilltiNISIS5.A.5Withokettumspresshig,!definitalyvi4 thertibqtvetpoint, ttlwilk*fficit to Obsbrviitbatiilhe abOveivaiintentioriloile II61/ dvvoidibloiforcai 1 t 4 'inAlflorp.,1 ,-;fli h Ed ' :i 10 0 ii ,:!-. Iti, 3V44n addition 'teihOilkOiliihitittaf -tiiithi investigation letiAriVr;!= Bakittitiflblistillieldtictilrflei,ebnrf ItbAtigtiat,L1985, a 009 WI iiiiigltuiii2 atilllititibli,;!Ibit ' 2nd"
Jatif"';',98311eit *Alb' before theAsigia0 r orilnil siontr suspecting, inter alia, the applicant for the murder of 'llii fittliii which Wa.v0Mtnittedop9LI9th June .1983, and bis,StateMe#t;itiffeke..Thc, C!Iiiie Branch., Aated 9th August, 1983:linter alia suspecting the applicant .Jis oiti,i5f4the intiudbreis.Rettlii- also filed cupioofAdditionits-Cornmissfulters ocou dafid ritkAo$9*,198iicoofittning .4tk,bail,V:a94,0414t04haiappisicant in connection with4he ,ith6ye "murder of reppondent Igo lii farther. Ta reply toitlie same;;fetii *S111111 Chisinit4 leirnt4t'eounsei) fof the retipondent No& 1 had placed on record Abdul Halim's 164 statement recorded ors 19th Fetiffitry, 1984 ,bowing himself as an eye-witness of the murder of rospondent :,Nart 4 's, father ,' itnd , lift idating four ' Peistobi - Atnit/iti ilah, Haji aeed MuhamMadaiirie'Sa4kOc) %Half and Barat Illitift;- the High Court Order, dated 17tlil*EltsWiliber, 1984 passed on the application filed by lama! N'asir fAr t he tlinct4fatielfi'.614t _"bail of the above four persons. It was, there'. fdrisicoiktbdidlbfaMV.F, slaia-thiihtei, Advocate that after 164 statement #TBS had ordered Jamal Nasir to fire upon the #TBE #TBS of the a plican #TBE OPAIldurf4a4hp.tAlti Nicht NO:1's' elder brother Jamal Nasfir had not ton {{BLURR}} moved any application for the cancellation of the bail against the applicant #:fs7e4107it:tkoMthe above High Court order, dated 17th November, 1984 an therefore, the statement of the respondentol in his bail application e' had no motive to commit murder of (," leants's brot er. Was. Ti mr," Yahya Bakhtiat, learned car 1 for ,03de applicant rieorietcfliiii',.a copy of order dated kiwo,,j984 passed tieghtliVitian No, 41 of 1484bY iichtitat.iItigh Court d by ammad Artiwar son of Tai Muhammad' against six private per- sons including the ,reSpondent No, m Ider brother Jamal Na. For the abduction opf the itioner's brother,.Statement of the abductee Raz Muhatturniff d ay, 1984 and certasinootber statemerwtOndicate that 4 statement of Abdul Halim, the - 'respondent No, fi Titter at 'C'sl'to rope in the applicant in the mtirder case by coer0 1,, he witness 4Mplicate him. He has also placed a copy of the complaint under sections 171 and 118 filed by Abdul Halim in the Court of Assistant Commissioner/Magistrate First Class, Charnan against eightPersons including the respondent NoO and his brothers for illegally detaining him and getting, his thumb-improclion on some statement. Jsa tt WI- W f4 ;to observe that lirthe most, on the basiam pe above I WV that there nyikkgrior enmity between the coxttplainant actu party.
7. The question which requires consideration is as to whether there is material on record to indicate, prima facie, that on the day of incident, the respondent No, 1 had conspired with his elder brother Jamal Nasir and his two younger brothers for the commission of the offence. .
1'; (Befortidealing with the above question, it may bepertilieht to refer to the4tatesitekeeOuneement of the Honourable glipir.The CourrelVt be construction Aof subseCtion(2) esection 497,'Cr.Alti,"'Cvm/theettse nrAlithammad Sadittv9adWand othersql), which has toditPritieirkticin by Mr. Yahya Bakhtiar, learned Cdunsel for the applicant:,:itrbt; relevant observations of which at pages 188 and 190 are as follows 10 Oreggda,the first quesMon,whether the term inquiry' has been oth; ,f9rxe81, ,the !Teamed JuOge in:Abel-1*n Court, is concern- s*0591111410.v..85C94741Pij to tnagiutrily1 bail is not allowed Rtascis,ase especially inii#Ci.c4ACWheRitOg allegations against PcfMR:,311e0iPPLOA ialthe F. I. 11-46firi left ,144Mbutted render him itof.4kisegtenRsiclvdeath or transeprta*axifouroff. However, if 1 poet agamatlatperson requirtafttstberimptitry to connect him commission o the offence as ttpthc pronsitease; bail is to be kibP1,11914." Hi`?'.` g' I fin -.1 ..,,,,,.
This enunciation of th aw, evidently is net in IleCOtd` with the an brinterpretationAokis phrase given by this cckurtm,in the t,,,,.1d,,,,,#00eriticp4 elite of Ibrahim ,v.Imfrfaxat Gi14),Alit4 . Another ,t;,,; (Cr,,:, Appear' ,NO. 16-P of 1984,),, ;1985 ,-,c,,A4 R 382. . .t' ., Herein, as it.Thas been seen, it is obser451 that ii *der subsectwil Lion (2) of section 497, Cr. P. C. Is to be Ole* ,pnlc of,the prior ,T es iiil,opeina is fulfilled, namely. That the Officer-in7charge of ,the Police bk,o, 4St ifiseOr the cAurt, ,taking cognizance of the matter comes to a , ,, mATIcAnclusion on ,cOniideration of the entire material that 'there ii- ;a1 wil 'Yam'' fi- (1) PLD 1985 SC 182 moat 311 0/ i.. {{BLURR}} 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 there are sufficient grounds for further inquiry into his guilt.
Normally, if 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 entitled him to bail 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 "Coming to, the contention that the learned Judge, in the High Court has not properly construed the provisions of ,subsection (2) of section 491, 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 respondent 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 his guilt was still necessary. Thus, in determining whether the power under section 497(2), Cr. P. C. Has been exercised properly or not by a Court it will be the substance rather than the form in which the order is couched that will have to be seen.
' 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 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."
' In view of the above pronouncement of the Honourable Supreme Court, I will have to examine the impugned order from the angle whether there has been compliance of the requirements of subsection (2) of section 497 as laid down by their Lordships.
8. In the above judgment, the Honourable Supreme Court has relied upon the case of Ibrahim v.
Hayat Gul and another (1), which the Honourable Supreme Court has pointed out that section 497, Cr. P. C. Does not leave it to the discretion of the Court to withhold bail to a person accused of a non-bailable offence, if he fulfilled the requirements of its subsection (2). It was also pointed out that the above section cannot be pressed into service unless on the basis of the material, the Incharge Police Officer or the Court taking cognizance of the matter comes to a definite conclusion that "there are no reasonable grounds for believing that the accused has committed a non- bailable offence".
9. Mr. Yahya Bakhtiar, learned counsel for the applicant has also referred to the following cases' :-
(i) The State v. Aziz alias Abdul Ali: PLD 1985 Ker. 27, in which a D. B. Of the Sind High Court has taken the same view as to the construction of subsection (2) of section 497, Cr. P. C. Which had found favour with the learned Judges of the Honourable Supreme Court in the above two cited cases.
(ii) Baba, Rashid v. The State PLD 1985 Lab.
288. " In the above case, a learned Single Judge of the Lahore High Court has held that the Court while considering a bail application is bound to apply the principles of law laid down by the superior Courts and should take into consideration all the relevant and important facts of the case.
It was further held that the expression 'further inquiry' employed in subsection (2) of section 497, Cr.P.C. Is to be construed with reference to the context especially in a murder case.
(iii) Nawab Khan and another v. The State L D 1985 Lab. 211, in which, I learned Single Judge of the Lahore High Court has held that bail in a murder case cannot be granted on laboured Ketext. Such as, concept of further inquiry, ineffective firing and divisibility of evidence. It was further held that the High Court in bail matters should not pre-empt or usurp jurisdiction vesting in the trial Court to give considered findings after appraisal of evidence.
(iv) Noor Ahmad and another v. The State PLD 1985 Lab.
414. In the above case, it was held by a learned Single Judge of the Lahore High Court that an accused person applying for bail before arrest must come with clean bands and must throw himself completely at the mercy of the Court. It was further held that the absence of the accused from the trial Court on the pretext that they were likely to be apprehended by the Police persons outside the said Court, was a lame excuse and that the accused were not entitled to bail in a murder case.
(v) Nazi, Ahmed v. Latif Hussain and 3 others PLD 1574 Lab. 476, in which, a learned Single Judge of the Lahore High Court cancelled
(1) 1985 SCM R 382 the bail, inter alia, on the ground that the bail before arrest was granted even without referring to the material on record. The accused was charged of assaulting a woman and obtaining her photograph in naked condition on the point of knife.
(vi) Ziaul Hassain v. The State PLD 1984 SC 192. In the above case, the Honourable Supreme Court declined leave to appeal against an order of a learned Single Judge of the High Court cancelling the bail before arrest granted to .a Police Head Constable. The distinction between the bail before arrest and after arrest has been highlighted in the above case. It was held that the High Court was justified in cancelling the bail when no mala fide was alleged by the accused on the part of the prosecution, ' On the other hand, Mr. Aslam Chishti, learned counsel for the respondent No, 1 has relied upon the following cases :-
(i) Ch. Addul Malik v. The State PLD 1968 SC 349, in which, the Honourable Supreme Court was pleased to observe, inter alia that the bail should never be withheld as a punishment and that in cases of non-bailable otlences, the grant of nail is a relief resting primarily in the discretion of the Court to be exercised with due care and caution as a fundamental incident of exercise of judicial power taking into account the facts and circumstances of each case.
(ii) Khalid Saigol v, The State PLD 1962 SC 495. In the above case, the Honourable Supreme Court was pleased to hold upon construing subsection (1) of section 497, Cr. P. C. That while considering a bail application, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence, but nevertheless, it is necessary part of its function to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded that the accused commitred ofence punishable with death or imprisonment for life. It was further held that to farm the above belief Court is to look at the material placed before it by the Investigating Agency and be, prima facie, satisfied that some tangible evidence can be offered which, if left unrebutted. May lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists in terms of subsection (1) of section 497, Cr. P. C.
(iii) Khalid Jared Gillan v. The State PLD 1978 SC 256, in which the Honourable Supreme Court while granting bail to the applicant who was charged under section 302, P. P. C. Held that bail either be allowed or to be rejected on the basis of evidence produced by the parties and the Court is bound to make tentative assessm ent of its evidentiary value. It was also pointed out that tentative sifting of evidence at the above stage is altogether different from elaborate sifting of evidence at the regular hearing.
(iv) Piaro v. The State and another 1984 P Cr. L J 149. In the above case, it has been held by a learned Single Judge of the Sind High Court that the concession of bail granted by the trial Court should not be withdrawn unless it is misused by the accused.
(v) Nasar v. The State 1984 P Cr. L 3 2541, in which, it was held by a learned Single Judge of the Lahore High Court that the accused who was attributed role of raising 'Lalkara' at the time of incident in a case under section 307, P. P. C. And no other overt act was attributed to him, was entitled to bail.
(vi) Muhammad Sharif . v. The State 1984 P Cr. L J 1911. In the above case, a learned Single Judge of the Lahore High Court dismissed the application for cancellation of bail and held that a person once enlarged on bail by the order of a competent Court, a valuable right accrue to him and the bail cannot be cancelled on the basis of bald allegations involving suborning of witnesses or holding out threats.
10. From the above-cited cases, it is evident that even at the bail stage, the Court is to sift the evidence on-record tentatively in order to arrive at a tentative finding whether the case, falls under subsection (1) of section 497, Cr. P. C. Which prohibits the grant of bail as pointed out hereinabove when there appear reasonable grounds for believing the person ac used of any non-bailable offence has been guilty of it or whether it falls under subsection (2) of the above section for forming the opinion, whether there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into the guilt of the accused. It is also evident that once an accused person is admitted to bail by a competent Court, the High Court will be slow in interfering with the discretion exercised by the granting Court in case the order can be sustained on the basis of the material on record.
11. The case of the complainant party is that Jamal Nasir, the respondent No, 1 and their two younger brothers conspired to kill the applicant's younger brother Muhammad Sadiq, who had come from Karachi where he was studying in the N. E. D. Engineering University and D for that object, they came in the car together which was driven by Jamal Nasir. He first attempted to run over the deceased and thereafter fired upon the deceased. The above allegation of conspiracy does not. Pima fade, fit in the circumstances of the case and the material on record for the following reasons :--
(i) From the sketch of the place of Wardat' which is available in the police record, it is evident that the incident had taken place on the turning from the Peromal Road into Taj Road where Noorul Haq was embracing the deceased Muhammad Sadiq.
(ii) That though the car had pushed Noorul Haq and Muhammad Sadiq, with the result, they fell down on he ground but they had not received any injury which is evident from the fact that in the postmortem report only one injury on account of fire-arm at the chest of the deceased, is mentioned and no other injury. This is also corroborated by the fact that Noorul Haq had run away according to his statement and though he was examined by the Investigating Officer on the following day of the incident, but no injury was found. Additionally, Muhammad Sadiq went towards the side of the driver and made the aforesaid remark.
(iii) That though Muhammad Sadiq and Noorul Haq had fallen on the ground, they were not crashed under the wheels, but the car was halted.
(iv) That Jamal Nasir did not fire upon Muhammad Sadiq immediately upon seeing him, but according to the above witnesses, he whipped oat the revolver when Muhammad Sadiq went to his side and, asked, why he had done that.
(v) That the respondent No, 1 had no motive to run over Noorul Hag, who was entertained by him alongwith his two friends with soft drink at his house about half an hour before the incident.
(vi) That the respondent No, 1 and his brothers could not have known that at 8-15 p. m. Sadiq would be coming alongwith his friends on Taj Road towards the hospital side.
(vii)That the murder of respondent No, 1's father bad taken place on 19th June, 1983, there was no immediate cause for the respondent No, 1 to have conspired with his brothers on the fateful day after the expiry of nearly two years to kill the deceased Muhammad Sadiq, who was not even suspected as an accused by Jamal Nasir.
In nutshell, the only incriminating material on record against the respondent No, 1 is the bare statement of the complainant Bashir referred to hereinabove in para. 5, namely, {{URDU TEXT}} and the statement of Abdul All recorded after more than three weeks from the date of incident attributing to respondent No, 1 that he had ordered his elder brother to fire upon the deceased.
12. It has already been pointed out hereinabove that his name was not mentioned in the F. I. R. He was not referred to by any of the witnesses and his statement was recorded after more than three weeks from the date of incident by the Police and, therefore, at this stage, no implicit reliance can be placed on his statement.
13. Mr. Yahya Bakhtiar, learned counsel for the applicant has vehemently contended that inter alia, for the following reasons the respondent No, 1 should not have been granted bail by the learned Sessions Judge :--
(i) that there was strong motive on the part of four brothers to kill the deceased ;.
(ii) that Jamal Nasir and his two younger brothers have been absconding from the date of incident ;-
(iii) that according to Noorul Haq and Ubedullah all the four brothers were together at their Bungalow fifteen minutes Wore the incident and, therefore, bad occasion to conspire ;
(iv) that the respondent No, l's three brothers have been absconding with his consent and knowledge;
(v) that the respondent No, l's car was used in the commission of the offence and till today, it could not have been recovered by the police; and
(vi) that the police is partisan.
In my view, the motive alone will not disentitle the respondent No, 1 to the bail if on the basis of the material on record, there does not appear G y reasonable ground for believing that he has committed the offence.
' At the same time, motive also provides a reason to the complainant part to rope in more than one member of the accused party. Similarly, they factum of abscondence of respondent No, I's three brothers cannot be construed against the respondent No,
1. Learned counsel for the applicant was unable to point out any act or omission on the part of the responded No, 1 which will justify the refusal of bail to him. On the contrary, on the date of the incident at midnight, he was found at his house from where he was arrested. He remained in police custody for five days from 25th June, 1985 to 30th June, 1985 and from 1st July, 1985 upto the data o grant of bail on 22nd July, 1985 in the judicial custody. No material has been placed before me to indicate that he has abused the concession o bait granted by the learned Sessions Judge to him; nor this is an issue before me.
Learned counsel for the applicant has also not cited any concrete example whereby, it may be inferred that the police is partisan or has not investigated the case properly. I have examined the police papers referred to hereinabove and found that, prima facie, there was nothing irregular in the investigation. The factum that the respondent No, l's car has been used in the commission of the crime will also not be itself sufficient to den bail keeping in view the fact that Jamal Nasir was his real elder brother and according to the respondent No, l's statement recorded by the police on 30th June, 1985, his brother had borrowed his car for attending some feast.
14. Adverting to the question, whether the learned Sessions Judge has complied with the provision of subsection (2) of section 497, Cr. P. C. It may be observed that from the operative portion of the order quota hereinabove, it seems that the same is not couched in the words as t conform to the terms of the above subsection (2) of section 497, Cr. P. C., but the learned Sessions Judge has taken into consideration the statement' of Abdul Ali in which, the overt act is attributed to the respondent No, 1 and for good reasons, he has not relied upon the same. Even otherwise, I have examined the entire material on the record of the Investigating Agency and also the material placed by the learned counsel for the parties during the arguments and I am of the view that there are no reasonable grounds for believing that the respondent No, 1 has committed a non bailable offence, but there are sufficient grounds for further inquiry int his guilt, as to entitle him to bail under subsection (2) of section 497, Cr. P. C.
' Before parting with the above discussion, I may point out that I have not heard an application for the grant of bail, but an application for the cancellation of bail granted by a competent Court. A High Court generally does not interfere with the exercise of discretion by a competent Court in respect of bail matters, unless it finds that the bail could not have been granted at all on the basis of the material on record or was granted in violation of some provision of law.
15. For the aforesaid reasons, the above application for cancellation of bail is dismissed. However, may observe that the observation contained hereinabove are of tentative nature and are not to be referred to at the trial of the case or in connection with the other co-acccused.