As similar question of law is involved in these two matters, therefore they are being disposed of together.
2. In one case, the facts are that four persons, namely, Rashid, Amir, Faiz and Munir applied for bail in this Court. The main accusation was of murder. I dismissed the petition of Amir in limine on 14-2- 1972. An eye-witness had made some admissions favourable to Amir in so far as claim of right of private defence of property and person is concerned. But I then thought that it would involve extensive appreciation of evidence to reach a conclusion that Amir acted in exercise of right of private defence and that he did not exceed the same. The statements made by some other witnesses (not eye-witnesses) were no doubt placed on the record and I had noticed them, but no mention was made in my order of those statements because I mentioned only that statement which appeared to be most favourable to the accused. I also then observed that even if it were a case of free and open fight between both the parties and if each person was responsible for his own act, Amir having allegedly effectively fired at the deceased, on either of the above two considerations his case might fall under section 304, Part I which was punishable with transport-- ation for life; therefore, he was not entitled to bail. I said so without specifically mentioning that in that eventuality the punishment being transportation for life the case would fall within the prohibition contained in subsection (1) of section 497, Cr. P.C. And unless found otherwise, this Court had no jurisdiction to grant bail. The other three co-petitioners of Amir, namely, Rashid, Faiz and Munir, whose petitions were admitted, were subsequently allowed bail by my final order dated 14- 3-72. Amir challenged the order dated 14-2-72 before the Supreme Court. Their Lordships dismissed the petition for special leave to appeal with the direction that an application may again be moved in the High Court for consideration of "the whole case for purpose of bail on the data that is available" because I had not mentioned in my order that while passing the order impugned before the Supreme Court I had also examined the statements made by the witnesses other than Manzocr P. W. (the eye-witness). While giving this direction, their Lordships also made the following remarks: - "The learned counsel for the petitioner has submitted before us that the other eye-witnesses, who have been examined in the case, have made statements in the same strain. If this is correct and there is no other evidence to connect the petitioner with the crime of murder, and his right of self- defence is comple--tely established he can press for his discharge or acquittal, as under section 96 of the Penal Code 'nothing is an offence which is done in the exercise of private defence.' If he is found to have exceeded it, he can be convicted of culpable homicide not amounting to murder, as provided in exception (2) to section 300, P. P. C. This offence would then fall under no section 304, Part 1, P. P. C., for which he may be sentenced to any term of imprisonment, which may extend to ten years, but not necessarily transportation for life, which is the maximum provided under that section.'
It needs to be mentioned with respect that the statements other than those of Manzoor P. W. Were not made by eye-witnesses, though their Lordships in the above remarks assumed that all of them were eye-witnesses. Learned counsel appearing for Amir, who throughout conducted his case for bail in this Court and in the Supreme Court, has explained that in fact only one eye-witness had been examined and three more are yet to be examined and the copies of the statements placed on the record of both the Courts indicated that out of the makers of them, only Manzoor was the eye-witness. Due to some misunderstanding their Lordships thought that they were eye-witnesses.
He has further stated that in order to put the record straight, he made an applica--tion for review which was disposed of by the Supreme Court on 3-7-1972 with the following observation "Our order of the 2nd of May 1972 in para. 3 record that 'other eye-witnesses who were examined in the case, have made statements in the same strain as that of Manzur'. This was, as now revealed by the learned counsel for the petitioner, due to the wrong impression, and the words 'other eye- witnesses' instead of 'other witnesses' have mistakenly been used. This should stand rectified. Our order of the 2nd of May 1972, should be read in the light of the statement made today by the learned counsel for the petitioner."
Amir has again moved this Court for bail on the basis of the same data which is available on the earlier petition, namely, Criminal Misc. No. 299/B-1972.
3. In the other case, Mumtaz petitioner is involved in a case of grievous hurt (326, P. P. C.) having allegedly used a sharp-edged weapon with the result of a grievous injury on the arm of Muhammad Zaman P.W. His adversary. The contention raised at the admission stage was that the bone underneath the injury was not cut through and through, therefore, the accused could not be guilty of any offence higher than 324, P. P. C. I had asked for final medico-legal report which does not clearly show that there was any cut in the bone through and through but definitely shows that an artery under the injury had been cut which made it dangerous for life and that in' Act as a result thereof, gangrene of left hand had been set in and if had to be amputated.
4. The main contentions raised by both the learned counsel apart from the merits of each case are: Firstly, that according to the latest pronouncement of the Supreme Court in the case of Amir afore- mentioned now reported as Amir v. The State (PLD 1972 SC 277) it has been held that if the offence is punishable with transportation for life or any other lesser sentence, the case would not fall within the prohibition contained in subsection (1) of section 497, Cr. P. C. And secondly, in the alternative, that eve if such a case is intended by law to fall within that prohibition but the Court comes to the conclusion that the punishment which could be awarded in the particular circumstances of the case would be lesser than transportation for life, in that eventuality, the case would go out of the prohibition. And if either of the above two interpretations is accepted it would become discretionary with the Court to allow or refuse bail and there will be no question of lack of jurisdiction because of the prohibition contained in subsection (1) of section 497, Cr. P. C. On merits, both the learned counsel have argued that in both the cases the accused --petitioners are also injured and have suffered at least equal, if not more, physical harm and coupled with this, other circumstances make out a good case for exercise of discretion in their favour.
5. Mr. Kamal Mustafa Bokhari, learned Assistant Advocate----General, vehemently contested the above arguments and has contended that the only intention of their Lordships of the Supreme Court in permitting Amir petitioner to review his application for bail was for re-consideration of the question of his bail on pure facts and merits and that their Lordships did not intend to modify their earlier views on both the questions with regard to the interpretation of phrase "death or transportation for life" in section 497, Cr. P. C. Or, for that matter, the expression "punishable with".
With regard to the latter expression learned Assistant Advocate-General states that there is no doubt about the earlier view of the superior Courts that 'punishable with' means what the law "prescribes as punishment" and not what the Court thinks in a particular case to be the "likely or proper punishment". On the former question, his position is that 'punishable with death or transportation for life' means punishable with death or punishable with transportation for life. For the latter proposition, he has relied on Salehon and others v. The State (PLD 1969 SC 257) and my own Judgment in Khalid Rasheed v. The State (1971 Law Notes 522) and Khalid Rashid v. The State (1971 Law Notes 580).
6. Learned counsel for the petitioners in these cases have categorized various offences in which transportation for life is provided as punishment with or without other punishment. The categories are as follows:
(a) Death only. Section 303
(b) Death or transporation for life.Sections 121, 132, 194, Part II, 302, 305 and 396.
(c) Transporation for life alone.311, 388 and 389.
(d) Transporaation for life or lesser punishment of imprisonment.121-A, 122, 124-A, 125, 128, 130, 131, 194, Part I, 222, 225,226, 232, 238, 255, 304, 307, 313, 314, 326, 329, 364, 371, 376, 377, 394, 409, 412, 413, 436, 438, 449, 459, 460, 467, 472, 474, 475, 477, 489-A, 489-B, and 511.
Mr. M. Yasin Wattoo, learned counsel for Amir, tried to argue that their Lordships did not clearly rule in the case of Salehon that cases falling under category (d) above would fall within the prohibition and cited Ibrahim and another v. The State (PLD 1959 Lab. 715) to contend that the intention of their Lordships as it appears from the ruling in the case of Amir having been expressed later in time, should be so interpreted and applied by the High Court. Mr. Qurban Sadiq, (in the other hand while supporting the argument of Mr. M. Yasin Wattoo has laid more stress on the alternative argument raised by both of them, namely, that if the Court; even at bail stage, comes to a conclusion that it would be impossible for any Court, even On the accepted allegations, to award the highest prescribed punishment of transportation for life, then the case would automa--tically go out of the prohibition.
7. It is an admitted reality that in my earlier order, having come to the conclusion that Amir's case if it was covered by sec--tion 304, Part I, P. P. C. Would be punishable with transportation for life as one of the punishments, I thought that it fell within the prohibition of subsection (1) of section 497 and, therefore, refused bail to him. I also agree with both the learned counsel that the facts, as disclosed in these petitions and the data available at this stage, show that the parties in each case suffered' considerable harm and maximum punishment in either case, if not impossible, would be highly improbable. It is with this finding and back--ground that it has to be found out as to what is the ruling of their Lordships when they observed that "if he is found to have exceeded' it, he can be convicted of culpable homicide not amounting to murder as provided in exception (.2) to section 300, P. P. C. This offence would then fall under section 304; Part I, P. P. C. For which he may be sentenced to any term of imprisonment which may extend to ten years, but not necessarily transportation in life, which is the maximum provided under that section (underlining' is mine).
8. I do not 'accept the contention of the learned counsel their that their Lordships did not clearly intend to lay down in the case of Salehon that offences falling is category (d) above, namely, punishable with transportation for life or lesser imprisonment, are included in the prohibition. The case their Lordships were dealing with was under section 307, P. P. C: and this aspect s mentioned in the opening part of the judgment. I made 5etailed comment on this aspect of the matter in the two WAPDA uses which have earlier been cited. They related to an offence under section 409, P. P.
C. Both the offences are punishable with transportation for life or lesser imprisonment. I, therefore, old that there is no doubt about their Lordships' ruling in the case of Salehon and there is no question of resolving any so-called inflict by resorting to the latter view. Moreover, after hearing the learned counsel and after carefully applying my mind to the view expressed accused by their Lordships in the case of Amir, I have come to the conclusion that the view in the ruling of Salehon has not-been modified. Sajjad Ahmad Jan, .J., who wrote the order 1n Amir's case was also on the Bench of the Supreme Court which decided the case of Salehon. I cannot for a moment imagine that I his Lordship if wanted to modify the earlier view, would not have said spa in so many words.
9. When I expressed myself on this question, both the learned counsel for the petitioners have insisted that the reference by their Lordships in the case of Amir noted above, to the lesser imprisonment in a case under section 304, Part I, and their having in particular reminded the other Courts that transportation for life is "the maximum provided", cannot be treated as unimportant in the context of the facts noted in their Lordships' order. There is considerable force in the argument of the learned counsel as in the background explained above, namely, that I had refused bail on the consideration that the offence was punishable with transportation for life, their Lordships in my view, did want to make the law clear on the question of sentence vis-a-vis the restriction on grant of bail in offences punishable with transport--ation for life or lesser imprisonment. I do not agree with Mr. Kamal Mustafa Bokhari that their Lordships noted only the argument of the learned counsel. Firstly, the learned counsel himself has categorically stated that it was their Lordships' own view of the law that has been incorporated in the order; otherwise he when appearing before the Supreme Court, had not argued the petition on these lines. I also do not agree with the learned Assistant Advocate-General that the order of the Supreme Court which, in fact, is a remand order, was only meant to send the case to the High Court for re-consideration of the facts only and that their Lordships did not lay down the rule as to the interpretation of the question relating to the quantum of sentence in bail matters. I have already held that their Lordships did not modify their earlier ruling to the case of Salehon in so far as one aspect o the question of sentence is concerned. No other (except those discussed above) interpretation of the observation 'has been canvassed before me. Therefore, the only reasonable alternative, which considering all the circumstances of the case their Lordship wanted to lay down as a guidance, was that while considering he question whether a case fell within the prohibition contained In subsection (I) of section 497, Cr. P. C. The Courts are not supposed to keep in view only the maximum sentence (of trans--portation for life) provided in the relevant law. If in a particular case, the Court is in a position to come to a conclusion on the data placed before it even at bail stage, that the prosecution case taken to its extreme would not entail the maximum punishment, it would go out of the prohibition. The Court would then have the jurisdiction to grant or refuse bail in exercise of its discretion. Their Lordships, when observing that in such cases the sentence may extend to ten years but not necessarily transportation for life which is the maximum, with respect in my view, were, laying down the law that it is not necessary to think such a case a punishable only with transportation for life and further that lesser punishment, which may be awarded in a particular case, can also be visualized at the time of considering the question of bail, I, therefore, interpret, hold and apply the ruling in the case of Amir/ accordingly.
10. I have already mentioned that in none of these two cases (subject to Amir's case following under section 304, Part I and not under section 302, P. P. C.) there is any serious possibility of the maximum sentence of transportation for life being awarded. The prohibition contained in subsection (1) of section 497, Cr. P. C. Therefore, does not apply. And as in view of the above position of law it is now discretionary with this Court to allow or refuse bail, I proceed to decide both these -cases on the above assumption.
11. On re-consideration of the merits in Amir's case is modified view of the law for the purpose of deciding whether discretion should be exercised in his favour, while noticing the facts that: there are two cross-cases; statements somewhat favour--able to him have already been made before the committing Magistrate; he himself is injured; one person on his side lost life and several others were injured; he is already in custody for more than a year and a half and despite that only one out of four eye--witnesses has so far been examined, I exercise the discretion in his favour and accept his petition with the short order already passed on 6-7-1972. The position in the case of Mumtaz in the other petition is not, in any way, different. He himself, in addition to other injuries, suffered a grievous injury on a vital part (head). He is already in custody for the last four months. As result of the same occurrence two cross-cases have been institute and the other party is on bail. I, therefore, accept his petition also and allow him bail with the short order already passed.
12. In both the cases, I have kept in view the well-know principle of law of bail, that when the case does not fall within prohibition and it is discretionary with the Court to allow o withhold bail, the former is to be treated as a rule and the latter an exception. I, however, would add that the facts of the case should not at all be stretched either way so as to push the case within the prohibition contained in subsection (1) of section 497, Cf. P. C. If it does not fall there under, or to pull it out of the same if it really falls in it.