SAJJAD ALI SHAH, J.---Vide order dated 21-3-1993 this Court granted leave to appeal to consider whether High Court was justified in cancelling the bail and further whether bail of all the three appellants named above should have been cancelled. Briefly stated the relevant facts are that on 26-7-1991 complainant Muhammad Akbar filed F.I.R. At P.S. Jamshed Quarters for offence under section 325/34, P.P.C. And stated therein that his brother Abdul Zaman was given injuries by his three cousins namely Shahzaman, Mir Zaman and Khanni Zaman with Lathis and Sarya and was admitted in Civil Hospital. It is further stated that there were differences between injured and assailants on account of which exchange of harsh words took place between them on several occasions. Four persons are named in F.I.R. As eye-witnesses who took the injured to the hospital.
Complainant himself did not see the incident but was so informed by Ashraf son of Ghulam Muhammad. Complainant went to Civil Hospital and found his brother injured and unconscious. He went to the police station and lodged the report which was later converted for offence under section 302/34, P.P.C. After Abdul Zaman succumbed to his injuries.
2. Appellants Mir Zaman and Khani Zaman were arrested on the following day of the incident while Shah Zaman was arrested on 5-8-1991. Trial Court granted bail vide order dated 9-1-1992 on the grounds firstly, that investigation was dishonest inasmuch as statement of Ashraf was not recorded, who informed the complainant. Secondly, post-mortem examination did not take place and there was no medical report showing nature of injuries to confirm the allegation that injuries were caused by L,athis and Saryas. Putting reliance upon Jaffer and others v. The State 1980 SCMR 784 and two other rulings from Sindh High Court, trial Court granted bail. It would be pertinent to mention that in the case of Jaffer and others (supra) this Court has held that if material on the record does not show as to which accused caused fatal injury, then for the purpose of consideration of sharing of common intention it would be a case of further enquiry and consequently bail was allowed.
3. Complainant Muhammad Akbar filed application in the High Court of Sindh at Karachi, for cancellation of bail as contemplated under section 497(5), Cr.P.C. After hearing both parties, High Court has cancelled the bail. Perusal of the impugned order shows that High Court has dealt with three points by which the trial Court was impressed and granted bail. The points are firstly, that Investigating Officer carried out investigation dishonestly inasmuch as he did not examine Ashraf during the investigation, who informed complainant Muhammad Akbar about the incident. We have heard the learned counsel appearing for the parties on this point in sufficient detail and we are of the view that no definite fmding from the Court is called for at this stage to the effect whether Investigating Officer was dishonest or not, in not recording the statement of Ashraf and not naming him as witness in the challan. The fact whether Ashraf is eye-witness or not will appear clearly from the evidence of complainant and other eye-witnesses who are named in F.I.R. And also the evidence of Investigating Officer. In this case more emphasis is to be placed on the evidence of the eye-witnesses who are named in F.I.R. Complainant has not claimed to be an eye-witness and has very frankly described the source from which he learnt about the incident. What role was played by Ashraf would be highlighted by evidence of the eye-witnesses. In any case it will be for the trial Court to decide as to what will be the effect of omission of not including Ashraf in the list of witnesses.
4. Second point which had impressed the trial Court to grant bail is that there was no medical report that deceased had died an unnatural death. After examination of the record High Court has observed in the impugned order that after incident injured Abdul Zaman was brought to the hospital while he was still alive and he was examined by the doctor who found seven injuries on his person caused by hard and blunt substance. Nature of injuries was kept reserved as injured was referred for X-ray examinations. Subsequently when injured died, post-mortem examination was not made but this fact was mentioned in the medical papers that there was fracture of skull of deceased. This clearly shows that at the time when bail was granted by the trial Court correct factual position of medical aspect of the case was not available with that Court
5. The third and the most important point upon which bail appears to have been granted by the trial Court is that evidence collected during investigation did not show dearly as to who caused the fatal injury. In this context it was argued before us on behalf of appellants that though eyewitnesses are named in F.I.R. But even then it is not mentioned in F.I.R. As to which appellant was armed with what weapon and caused injury at which place of the deceased and further such omission leaves room for inference that eyewitnesses so named have not seen the incident.
Answer to this question is that in the material collected during investigation there is F.I.R. To which reference can be made and perusal of which shows that F.I.R. Is dictated by the complainant who is himself not an eye-witness. He gained knowledge of incident from Ashraf and it is not clear whether Ashraf is eye-witness or not but his statement is not recorded by the Investigating Officer and he is not shown in the list of witnesses. Fate of the case heavily depends upon evidence of four eye-witnesses named in F.I.R., who took the injured first to the police station and then to the hospital. These eye-witnesses will be subjected to cross-examination in the trial Court at the stage when their evidence would be recorded. Trial Court would consider each piece of evidence and would make over-all appraisement of evidence in order to come to a final conclusion. Meanwhile prosecution has claimed that when injured was brought to the police station, he made a dying declaration in which he had named his assailants. It would be for the trial Court to evaluate this piece of evidence also. At the stage of bail and before recording of evidence in the trial Court, only tentative assessm ent is to be made for the purpose of deciding bail application and it is not permissible to go into the details of the evidence one way or the other because that might prejudice that case of one party or the other.
6. Since trial Court has granted bail mainly on the ground that fatal injury of deceased is not pointedly attributed to anyone of the appellants, hence it is a question of further enquiry and High Court has disagreed with this finding, it would be necessary at this stage to study the legal aspect of the matter. Section 497(2), Cr.P.C. Provides that if it appears to the Court at any stage that there are no reasonable grounds for believing that accused committed a non-bailable offence, but there are sufficient grounds for further enquiry into his guilt, such accused shall be released on bail.
Now what will constitute as sufficient grounds for further enquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined would not make it a case of further enquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of section 497, Cr.P.C. Is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged. For example if accused is charged for offence under section 302, P.P.C., but there are grounds for further enquiry which may show that he may not be convicted of charge under section 302, P.P.C. And acquitted or convicted for a lesser offence. In the instant case the fact that in F.I.R. It is not pinpointed as to which appellant had what weapon and who caused the fatal injury, would not alter the charge on conviction if prosecution evidence is believed and may have some effect only on the quantum of sentence.
7. In support of grant of bail reliance by the trial Court on the case of Jaffer and others v. The State 1980 SCMR 784 is misplaced for the reason that it was not a case simply in which fatal injury was not attributed to any particular accused as in this case but it was a case of sudden fight between two parties in which there was counter-version in which main accused also filed F.I.R. And claimed that he sustained injuries inflicted on him by deceased and his companions when he was trying to retrieve cattle heads seized by deceased and others for the purpose of impounding. So in the reported case not only there was counter F.I.R. But plea of self-defence was taken, which made the case of the prosecution fit for further enquiry on the ground that if defence version was accepted, charge framed by the prosecution in the main case under section 302, P.P.C. Would not stand.
Similarly the other two cases from High Court of Sindh namely, Used All and another v. The State 1985 PCr.LJ 2323 and Ismail and others v. The State 1983 PCr.LJ 823 is distinguishable and not relevant for the point under discussion.
8. We are of the view that in case, when armed assailants attacked unarmed victim omission to pin-point in F.I.R. As to which assailant was armed with what weapon and who caused fatal injury would not make any material difference so far as conviction on the basis of charge under section 302, P.P.C. Is concerned, except on question of sentence, if trial Court believes evidence produced by the prosecution. Section 34, P.P.C. Envisages that if a criminal act is done by several persons in furtherance of common intention, each of such persons would be held liable for that act in the same manner, as if it was done by him alone. In this case in F.I.R. There is allegation that all the three appellant's wen: armed with Lathis and Sarya and all of them inflicted injuries on the deceased. Everything depends on the intrinsic value of the evidence which is produced by the prosecution and it is for the trial Court to evaluate that evidence and come to the conclusion according to law.
9. It was submitted before us by the learned counsel for the appellants that bail granted by the trial Court should not have been cancelled by the High Court for the reason that the trial proceedings were about to commence and in support of the proposition cited four reported decisions. First case is of Muhammad Hashim v. Nabi Bux and another PLD 1987 Quetta 194 in which it is held that bail granted by a competent Court cannot be cancelled by a superior Court, unless grant of it was arbitrary, capricious and contrary to record. There is no cavil about the legal position enunciated in this decision. In the second case the decision of this Court is reported as Muhammad Ismail v.
Muhammad Rafique and another PLD 1989 SC 585 in which leave was granted by this Court to consider whether it was an established practice of the superior Courts not to grant or cancel bail in a murder case when the trial is about to commence within a short time and the date has been fixed. In that case High Court refused bail after which another application was moved again on the ground that D.S.P. Had expressed opinion with regard to the innocence of respondent/accused and the High Court granted bail on the ground that it was a case of further enquiry and objection was overruled that the trial was about to proceed. It was held that ordinarily when a murder case is fixed for hearing, bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge. However, the above stated position notwithstanding, the appeal was dismissed for the reason that bail was granted as contemplated under section 497(2), Cr.P.C. On the ground that there were sufficient grounds for further enquiry into the guilt of the accused as there was finding from D.S.P. About the innocence of respondent/accused and that being so, it was observed by this Court that bail on that ground could not be withheld on the ground of practice.
The abovementioned argument does not apply to the facts of the instant case for the reason that in this case bail was granted by the trial Court on 7-11-1992 and certified copy of the order sheet produced shows that on 25-5-1992 accused persons present in the Court pleaded not guilty to the charge and notices were issued to P.Ws. This shows that when bail was granted by the trial Court, the case was not ready for trial proceedings and cancelled on legal grounds.
10. Third case cited by the counsel for the appellants is Miandad v. The State and another 1992 SCMR 1418 in which principle is reiterated that this Court ordinarily would not interfere with order of the High Court relating to bail particularly in case of murder when the trial is about to commence so as to avoid discussion and remarks on the merits of the case but dismissed appeal against grant of bail by the High Court. High Court granted bail on the consideration that the case may fall under section 304(1), P.P.C. For the reason that accused claimed to have acted on grave and sudden provocation and caused injuries to his wife as well as her paramour who were caught red- handed in his house. It was contended that discretion left in the Court for cancellation of bail is pari materia with the principles which apply to the setting aside of the orders of acquittal. After hearing both the parties the appeal was dismissed on the ground that it was not a fit case for interference as doing so would involve some discussion and remarks on the merits of the case trial of which was about to commence, which might prejudice either party.
11. Ratio of the ruling mentioned in the above paragraph is not attracted to the facts of the instant case for the reasons firstly, that when bail was granted by the trial Court, the case was not ripe for evidence. Secondly, when the bail was cancelled by the High Court it was done for valid reasons as grant of bail was arbitrary and not according to law. Thirdly, it was not a fit case for grant of bail on the ground of further enquiry in the absence of plea of sudden fight or grave and sudden provocation requiring alteration of the main charge. Fourthly, the case seemingly is covered by restriction contemplated under section 497(1), Cr.P.C. Which provides that bail is not to be granted when the offence is punishable with death or imprisonment for life or imprisonment for 10 years.
12. For the facts and reasons stated above, we are unable to find any flaw or legal infirmity in the order of cancellation of bail passed by the High Court, which being in accordance with law, is hereby maintained and resultantly the appeal is dismissed which has no merits.
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