1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed against the grant of bail in a murder case by the High Court to Abdul Sattar, respondent.
2. ' The prosecution case against him as it emerges from the F.I.R. Which was promptly lodged is as follows:-- "Complainant's complaint is that at about 8-9 months ago my uncle Abdul Majeed son of Lal Muhammad's house was burgled and the thieves were Sattar's brother Abdul Ghaffar Burdi. On 2- 7-1988 my uncle Abdul Majeed had given an application to S.P. Nawabshah about the registration of the theft case and the S.P. Had given orders to the Police Station Pudidan- for the registration of the theft case. Yesterday on 11-7-1988 at 5.30 O'clock I and Abdul Karim were sitting on Sindh Medical Store when Sattar Burdi and Azizullah Burdi came and told us as to why were we helping complainant Abdul Majeed and that if we help him, they will kill, but we told them that we are helping the complainant as it was fair, and they went away. Then I and Abdul Karim decided to report the matter in the morning to S.P. And Dy. Commissioner, that they should be informed about the incident so that the law should take its own course. Today on 12-7-1988 in the morning, I and Abdul Karim, Ashique Hussain and Khalil Ahmad came from Pudidan by Awami Express to Nawabshah. At 9-15 O'clock we reache at the front of the shop of sweetmeat shop of Haji Abdul Rahim, when we saw Abdul Sattar son of Ali Sher Burdi, Umer Daraz son of Muhammad Ismail Arain, Habibullah son of Abdul Hameed Kori, Uar Muhammad alias Yar son of Nehal Rajpar, Azizullah son of Saheb Khan Burdi, Shahu son of Saheb Khan Burdi, Qamaruddin son of not known Burdi and out of them Abdul Sattar and Azizullah were armed with daggers. Umer Daraz, Yaroo and Habibullah instigated that catch hold of Abdul Karim and that they should not be left on which Shahoo and Qamaruddin caught hold of Abdul Karim, while Abdul Sattar and Azizullah caused dagger injuries to Abdul Karim, who received injuries on the chest and on the neck. We raised commotion and several people of the city arrived and in this scuffle accused Abdul Sattar was caught hold of and others ran away. That the dagger was taken from Abdul Sattar and in the meanwhile Police came and we handed over the accused to the Police and Abdul Karim was brought to the Hospital at Nawabshah where he died. The above witnesses were left on the dcadbody and I have come to lodge report against the accused, who have caused murder of Abdul Karim by causing him dagger injuries. Complaint is lodged for justice.
3. (Sd.)
4. Complainant. (Iqbal Hussain)."
5. ' Note: The English translation has been supplied by the learned A.O.R.
6. ' Bail having been refused by the learned Sessions Court, in the first instance, a learned Judge in the High Court allowed the same by accepting the following submissions made from the accused/respondent-side in the High Court: "Mr. Kazi Azizullah, the learned counsel for the petitioner raised the following contentions:--
(1) There are two versions of the matter and it is yet to be ascertained as to which version is true.
(2) The petitioner has sustained eight injuries on his person and two of them are with sharp cutting weapon. The prosecution has not explained as to how the petitioner sustained the injuries.
(3) The co-accused Azizullah has been enlarged on bail and so far the role of the petitioner is concerned, it is identical to co-accused Azizullah.
(4) If the plea of self-defence is inferable from the circumstances of the case, then the benefit of it in the form of bail may be extended to the accused."
7. After discussing the points raised in the afore-noted submissions the learned Judge concluded as follows:-- "In the instant case there are two versions. The petitioner also sustained eight injuries, two by sharp cutting weapon. The prosecution has suppressed this fact in the F.I.R. Furthermore, it will be a serious question for consideration at the trial as to which party was aggressor. It is a case of further inquiry under section 497(2) Cr.P.C. The above decisions support this contention of the learned counsel for the petitioner."
8. ' We have heard the learned counsel for the appellant, the learned Advocate-General and the learned counsel for Abdul Sattar accused/respondent. It may straightaway be observed that this Court has in a number of cases interpreted subsection (2) of section 497 Cr.P.C. Which, with respect, has not been correctly understood by the learned Judge in the High Court nor has it been properly applied in this case. While he thought that it was a case of further inquiry which element as has been observed number of times in many cases, would be present in almost every case of this type. The main consideration on which the accused becomes entitled to bail under the said subsection is a finding, though prima facie, by the Police or by the Court in respect of the merits of the case. The learned Judge in this case avoided rendering such prima facie opinion on merits as is mentioned in subsection (2) of section 497 Cr.P.C. And relied only on the condition of further inquiry. This approach is not warranted by law. Hence, the case not being covered by subsection
(2) of section 497 Cr.P.C., the respondent was not entitled to bail thereunder as of right.
9. ' This, however, would not deprive him of the concession of bail if it is otherwise available on consideration of the provisions contained in subsection (1) of section 497 Cr.P.C. It is in that behalf that the learned Judge thought that it might be a case of self-defence because the accused had a number of injuries on his person including two with sharp-edged weapon. No doubt, the injuries are more than half a dozen but they, as observed by the learned Sessions Court, are very insignificant- -most of them are on fingers and one is on the wrist. Learned Judge in the High Court only visualized one possibility; namely, that the accused might have suffered these injuries when attacked by the adversaries. It was, however, ignored that these injuries could have been suffered by him when, as asserted in the prosecution, a dagger was snatched from his hand after a scuffle.
10. This also explains another point noted by the High Court that the injuries on the person of the accused have not been explained. This again, with respect, is not correct. The scuffle having specifically been mentioned in connection with apprehending the accused and securing the dagger from him; this prima facie would show that the prosecution has not concealed such circumstance as a result of which the appellant could have suffered the injuries found on his person. We carefully scrutinized the particulars of those injuries from the police file. They can fit in well with the type of scuffle which as stated in the F.I.R. Ensued after the alleged main assault described in the F.I.R. In this behalf, the opinion expressed by the learned Advocate-General who opposed this appeal, otherwise cannot be accepted at this stage.
11. ' Learned Advocate-General and the learned counsel for the respondent also laid great stress on the point that witnesses appeared before the police to depose that at least two persons mentioned in the F.I.R. Were innocent and further that there was a fight during the occurrence; which, according to the FIR., has been shown as one side assault only. Accordingly, it has been argued that the accused-respondent can be given -due benefit due to these weaknesses of the prosecution case. Even if it be assumed for the sake of argument that the persons who were not assigned any vital role in so far as the killing is concerned, might not be convicted, that by itself would not give any benefit to the accused-respondent in matter of bail; at the most, it would put the Court on caution. We, acting on this principle, have noticed that the accused-respondent could not deny participation in the occurrence rather it has been admitted on his behalf. Not only this, he is injured, hence there is no question of his case being equated with those who might have been declared innocent by the police.
12. 'As to the story of fight, firstly the scuffle mentioned in the F.I.R. Can be considered as the fight which might have been narrated by some of the witnesses either in the same sequence as by the first informant or in a different sequence. This again is not a sufficient ground for grant of bail. Even if it is considered as a fight it is still a long way for the accused to establish all the conditions laid down in Exception-4 to section 300, P.P.C. To get the benefit of Part-I of section 304, P.P.C. And even if that is ultimately found to be applicable by rendering findings of absence of premeditation, cruelty, undue advantage etc. The sentence can still, in this case, be life imprisonment. These elements, therefore, were against the grant of bail rather than in favour thereof.
13. ' If, on the other hand, it was not a sudden fight covered by Exception 4 to section 300, P.P.C. And was a fight otherwise, known as "free fight", the offence could he under 302, P.P.C. Punishable with death or imprisonment for life. All these considerations having been ignored, minor points were made the basis for grant of bail to the accused-respondent.
14. ' With regard to the plea of self-defence it is better not to discuss it in any detail. As already observed, the injuries found on the person of the accused are so insgnificant and on such non-vital parts of the body (fingers and wrist) and the wrist injury is so significant in so far as the scenario depicted in the case is concerned that it was almost impossible to give any benefit to the accused in respect of the injuries for making it a prima facie case of self-defence at bail stage.
15. ' Looked at from whatever angle, in our view, learned Judge in the High Court failed to notice all the relevant circumstances in this case, misread the record and, as discussed above, fell into errors of fact and law. Therefore, there is no alternative but to allow this appeal. Accordingly, the bail granted to Abdul Sattar, accused/respondent is cancelled. He shall be taken into custody in accordance with law.
16. ' The prima facie views expressed and the observations made are in the context of the arguments addressed at the Bar. So is the opinion expressed by the High Court in the impugned order. And thus, they are only tentative opinions whether contained in this order or in the orders of the learned lower Courts and shall not influence the course of trial in any manner whatsoever.