MUHAMMAD ISMAIL vs MUHAMMAD RAFIQUE and anothers

1. ' MUHAMMAD AFZAL ZULLAH, J.--This appeal through leave of the Court is directed against the order dated 28-2-1989 of the Lahore High Court; whereby, bail was granted to Muhammad Rafique respondent who is involved in a case of murder.

2. ' As stated by the learned counsel for the appellant the High Court had refused bail to the respondent on 16-6-1988. Another application was dismissed by the High Court on 9-1-1988; but as explained by the learned counsel, the point regarding opinion of innocence expressed by a DSP after the dismissal order dated 14-6-1988 was left to be agitated before the Sessions Court.

3. Learned counsel stated that the Sessions Judge dismissed the bail application whereupon the respondent once again moved the High Court and bail having been allowed to him by the same learned Judge on 28-2-1989, leave to appeal was then sought.

4. ' Leave was granted to examine the following two points:-

(a) Whether it is an established practice of the superior Courts not to grant or cancel bail in a murder case, when its trial is A to commence within a short time and the date has been fixed; and

(b) Whether the dismissal of the earlier bail application of respondent No,1 on merits by the same learned Judge would not be a bar to the grant of bail on a subsequent application; mainly on the ground that another investigating officer found the accused innocent in other words whether for purposes of subsection (2) of section 497 Cr.P.C. And for other similar considerations, the view of the subsequent police investigator or the earlier opinion expressed by a Judge of the High Court on merit, would prevail."

5. ' The first point was also raised in the High Court and was disposed of with the following observation:- "It was then said that the next date of hearing is 15-5-1989 and the grant of bail at this stage would prejudice the prosecution case. I am unable to agree that if the petitioner is otherwise entitled to bail, the fixing of the case should afford a ground for refusing it; nor do I think that any question of prejudice arises."

6. ' The first point is not much in context. It is well-known practice of the superior Courts of Pakistan that when a murder case is fixed for hearing ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge. The observation of the learned 'Judge in the High Court with regard to prejudice, with respect, it is pointed out, would pot be correct; because, the principle underlying the above-stated practise is directly relatable to the "question of prejudice: ' However, the above-stated position notwithstanding, after g the learned counsel we feel that this appeal merits to be dismissed. Firstly, if the merit points involved herein are determined, very practice relied upon by the learned counsel will go against appellant. The trial is to commence within a fortnight; hence elation of bail at this stage would not be proper. But in the stances of this case there is a more vital point on account of which this appeal merits to be dismissed. It appears from the tenor of the impugned judgment of the Court that the respondent's case was treated as one falling under subsection (2) of Section 497 Cr.P.C. That being so, the Court had no option but to release the accused on bail. The subsection reads as follows:-

(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.

7. ' It is apparent that when the Court finds that the two essential conditions contained in section 497(2) Cr.P.C. Are satisfied the accused shall become entitled as of right to bail. In the impugned order the learned Judge, it seems, without saying so in so many words, felt that the two conditions existed in this case- (a), that "there are not reasonable grounds for believing that the accused has committed (a) non-bailable offence ";(b), that there are sufficient grounds for further inquiry into his guilt." Accordingly the accused had become entitled to be released on bail.

8. ' The question then arises; whether, subsection (2) of section 497 Cr.P.C. Would have operation notwithstanding the aforestated practice of this Court. Much discussion is not necessary in this behalf. When an accused person becomes entitled as of right to bail under subsection (2) of Section 497 Cr.P.C. The same cannot be withheld on the ground of practice; because, the latter is relatable to exercise of discretion while the former is relatable to the exercise and grant of right.

9. ' Notwithstanding the foregoing treatment of both the points noted for leave to appeal, learned counsel further contended that the findings of fact though tentative reached by the learned Judge in the High Court; wherein the opinion of Police Officer declaring the respondent innocent was, prima facie, relied upon (by the learned Judge in the High Court) are erroneous. He argued that notwithstanding the opinion of the Police Officer which admittedly is relevant under subsection (2) of section 497 Cr.P.C. The High Court should have followed its own earlier view of merits expressed in the orders dated 14-6-1988 and 9-1-1988. Prima facie, the argument of the learned counsel has considerable force but for good reasons we would not like to interfere with impugned order: Once, leave was not granted on this point and it being A bail matter we would not extend the leave granting order; two, if we set aside the order of the High Court on merits, this would disturb the aforestated practice; three, ordinarily the tentative opinion expressed by the High Court in bail matters on the merits of the ease, is not disturbed; four, in view of the observation we.'are going to make with regard to merits, the case of the petitioner/appellant would not be prejudiced during the trial.

10. ' In the light of the foregoing discussion we, in the circumstances of this case, dismiss the appeal but with the observation that nothing held, said or observed by the High Court on merits, shall in any case influence the opinion of the learned trial Judge or the course of the trial, in any manner whatsoever.