' FAZAL ILAHI KHAN, J.---This is a petition for leave to appeal against the judgment and order dated 7-7-1994 of High Court of Sindh, Karachi, in Criminal Bail Application No, 560 of 1994; whereby the accused/respondent No,1 was allowed bail in case F.I.R. No,24/94, Police Station Quaid-i-Abad, registered against him and his co-accused for the murder of Nawab Khan deceased.
2. Briefly stated the facts of the case are that on 17-1-1994 at 2-30 a.m. Haji Gulu Khan brother of Nawab Khan deceased on information gathered from Saleh Muhammad, who in turn had got the information from Missal Khan son of Wasal Khan, that Missal Khan alongwith Nawab Khan deceased had gone to Al-Sayyed Centre and from there to Gul Ahmed Mills to meet the Patwari at about 10 p.m. That Nawab Khan was murdered by Gul Draz accused/respondent, Missal Khan son of Muhammad Zaman and Sher Nawab son of Muhammad Zaman (absconders) by firing at him with their pistols. That he had taken the deceased to Jinnah Hospital. On having come to know of the occurrence he left for hospital in the company of Saleh Muhammad where the police was already present and busy in investigation. He also saw Missal Khan and Baigoo at the hospital and made inquiry from them who disclosed him the real facts of the murder of Nawab Khan by the accused by firing at him.
3. As for motive for the commission of offence is concerned it was stated that a week before the occurrence there had been altercation between the accused and the deceased as both the parties ply their vehicles on a common route.
4. Initially all the 3 accused were not available. During the investigation the police allegedly recovered 5 empties of .30 bore from the spot which were taken into possession and also collected some blood-stained earth. The accused/respondent was arrested from his native village Lakki Marawat about 2/1-2 months of the occurrence whereafter he moved his application for his release on bail which was rejected by the learned Additional Sessions Judge by his order dated 22-6-1994.
However, his further application was accepted by the learned Judge of the High Court vide order dated 7-7-1994.
5. The complainant moved an application for cancellation of the above order in which notice has been issued to the accused/respondent and the Advocate-General, Sindh.
6. Learned counsel appearing for the complainant vigorously challenged the order of learned High Court, which was supported by the learned counsel appearing for the State. It was contended that the accused/respondent alongwith the absconding accused have been directly charged for effective firing at the deceased in furtherance of their common intention, therefore, the fact that it could not be established at this stage as to whose shot proved fatal was immaterial for grant of bail in offence under section 302/34 of the P.P.C. It was further contended that it was not required deeper appraisal of the prosecution evidence at bail stage when tentatively it could be established that there was direct charge supported by motive and abscondence of the accused. Reliance was placed on Tanveer Ahmed v. Muhammad Saqib and 2 others (PLD 1994 SC 88) and Syed Qamar Ahmad and others v. Anjum Zafar and others (1994 SCM R 65).
7. In opposing the petition learned counsel for the accused/respondent pointed out that F.I.R. Was not lodged by the eye-witness rather it was lodged after deliberation and consultation with Saleh Muhammad ASI, a relative of the complainant, after a delay of 4 hours although Abdur Raziq a cousin of the deceased was alleged to have witnessed the occurrence. That police station is at a distance of about a mile from the place of occurrence but such inordinate delay has not been explained. Even no report was lodged at hospital after the arrival of the police as the investigation had already started when the complainant allegedly arrived there. The defence plea that it was an unwitnessed occurrence and that accused/respondent had been falsely involved in the case because of the business rivalry is to be seen in the background stated above. It was further pointed out that the occurrence took place in front of the shop of Umar Ayyaz where he runs a medical store. Umar Ayyaz belongs to the same area to which both the parties belong. He has stated in his statement under section 161, Cr.P.C. That he heard a fire shot while he had gone to take his meals and left his shop open and when he came he found the dead body of Nawab Khan in the pool of blood. Many people had gathered. After some time the relatives of Nawab Khan took the dead body from the spot. He showed his ignorance about the person or persons who had committed the murder. The learned counsel for the petitioner in this sequence pointed out that the prosecution witnesses were not present on the spot at the time of occurrence otherwise they would have rushed to the police station and lodged a report leaving the dead body at the spot till the arrival of the police as the deceased had already expired at the spot. There was no need to shift the dead body from the place of occurrence before lodging of report. Learned counsel further pointed out that suggestion was made to the witnesses in their statements recorded under section 164, Cr.P.C.
That they improved upon their earlier statements recorded under section 161, Cr.P.C. By attributing the first shot to the accused/respondent which show their keen interest in falsely involving the accused/respondent in the case. It was also argued by the learned counsel that it has been suggested in the cross-examination of the witnesses while they were being examined under section 164, Cr.P.C. That the deceased was a close associate of Irfan Ullah Marwat and that the deceased was a material witness in the murder case of Gul Habib. It was further suggested to the witness that he used to collect ransom money (Ghunda Tax) for Sami Ullah Marwat and Irfan Ullah Marwat and for that reason had several enemies. On such ground it was contended that the learned High Court was justified in observing though not explained in so many words that this was a case of further inquiry. It was lastly contended that challan in this case has been completed and put in Court, therefore, no interference is required at this stage with the order of the learned High Court.
8. An objection was raised by the learned counsel for the petitioner that this Court should not go into contention raised by the learned counsel for the respondent as these were neither raised before the High Court nor considered while granting bail to the accused.
9. After hearing the learned counsel for the parties and perusal of the record we are not inclined to interfere with the discretionary order of the High Court on facts and circumstances of the case on tentative assessm ent of the argument addressed by both the parties; specially failure to lodge the report by the eye-witnesses and the inordinate delay in lodging the report coupled with the statement of Umar Ayyaz P.W. At this stage, more so when the respondent has already been put on trial. Normally according to practice of this Court in Muhammad Ismail v. Muhammad Rafique (PLD 1989 Supreme Court 585) it was held that ordinarily tentative opinion expressed by the High Court in bail matters on the merits of the case is not disturbed and while dismissing the appeal for cancellation of bail it was observed: "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."
We abstain to express any view or to go into deeper appreciation of evidence of the parties in this case so that it might not otherwise reflect on the case of either parties one way or the other.
Accordingly, this petition is dismissed.
' SAIDUZZAMAN SIDDIQUI, J.---I have gone through the judgment proposed to be delivered in the above case by learned brother Fazal Ilahi Khan, J. I find myself unable to agree with the judgment of my learned brother.
' The facts of the case are succinctly stated in the judgment of my learned brother, therefore, I would not repeat them here. Gul Daraz Khan, respondent No,1 in the above case has been charged for the murder of Haji Nawab Khan alongwith absconding accused Missal Khan and Sher Nawab sons of Muhammad Zaman. Respondent No,1 was arrested from his native place in N.-W.F.P. Lukki Murawat, after about 2/1-2 months of the incident. The trial Court refused bail to respondent No,1 but a learned Judge in Chamber of High Court of Sindh admitted respondent No,1 to bail for the reasons which are stated in the impugned judgment as follows:-- "There is no cavil with the preposition advanced by complainant's learned advocate that at bail stage only a tentative assessm ent is to be made but not the deeper appreciation. As observed earlier, there are general allegations in the F.I.R. As well as in the 161, Cr.P.C. Statements of P.Ws.
Missal Khan and Abdul Khaliq, that all the three accused including applicant fired at the deceased.
In such circumstances, as to which of the accused could be saddled with the liability of causing fatal blow to the deceased would be a matter requiring further inquiry."
' The above reasons given by the learned Judge in Chamber for holding that the case against respondent No,1 needs further inquiry do not appear to be correct. The scope of the expression "further enquiry" used in section 497, Cr.P.C. Have been subject of in depth discussion in many cases but here I will refer only to the following observations in the case of Muhammad Sadiq v.
Sadiq and others (PLD 1985 SC 182):-- "So far as the scope of the phrase "further inquiry" is concerned its true meaning is explained as follows:-- "497. When bail may be taken in case of non-bailable offence.--(1)..
(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.
' This provision does not leave it to the discretion of the Court to withhold bail to a person accused of a non-bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the Officer Incharge of police station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that 'there are no reasonable grounds for believing that the accused has committed a non- bailable offence'. Without such fmding by such officer or the Court the accused would not be released on ground of further inquiry under subsection (2). And similarly if such a fmding is recorded that accused cannot be denied the right of to him by the same provision. In the present case neither the officer nor the Court concerned recorded the prerequisite finding. That being so the respondent could not be released on bail on ground of so-called 'further inquiry' under subsection (2) of section 497, Cr.P.C."
It is, therefore, quite clear that a case would only fall within the scope of further inquiry under section 497(2), Cr.P.C. If the Court reaches the conclusion that on the material before it, there are no reasonable grounds to believe that the accused is guilty of a non-bailable offence or an offence punishable with death, imprisonment for life or imprisonment for 10 years. In the absence of a fmding to this effect, there will be no occasion for the Court to hold that the case is one of further inquiry. It may be mentioned here that in order to ascertain that no reasonable ground exists to believe that the accused is guilty of a non-bailable offence or offence punishable with death, life imprisonment or imprisonment for 10 years, the Court, if the case is still at the stage of investigation will make a tentative assessm ent of the allegations against the accused person in the light of the material so far collected by the investigation agency to connect him with the offence. In case the trial has commenced, the Court taking cognizance of the case may, in addition to the material collected by the police, also take into consideration the evidence produced before it. In the case before me, respondent No,1 is specifically charged with the firing from his arms alongwith the absconding accused on the deceased, both in the F.I.R. As well as in the statements of witnesses recorded under sections 161 and 164, Cr.P.C. The fact that in the F.I.R. And in the statement of prosecution witnesses there is only general allegation of firing by the respondent No,1 and the co- accused on the deceased and no specific injury on the deceased is attributed to respondent No,1, would not make the case against him, one of further inquiry as held by this Court in the case of Shahzaman and 2 others v. The State and another (PLD 1994 SC 65) as follows:-- "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."
' The learned counsel for respondent No,1, however, contended that two prosecution witnesses examined under section 164, Cr.P.C. Made improvement in their statements by stating that the first shot on the deceased was made by respondent No,1. Firstly, the question whether the witnesses while examined under section 164, Cr.P.C. Made improvement on their earlier statements recorded by the police under section 161, Cr.P.C. And what is the effect of this improvement on the case of prosecution, is a matter of deeper appreciation of evidence which can only be done at the trial.
Secondly, for the present even if the alleged improvement made by the witnesses in their statements under section 164, Cr.P.C. Are ignored, there are definite allegations of firing by respondent No,1 on the deceased which would prima facie connect him with the offence alleged against him. The learned counsel for respondent No,1, also contended that there was delay of about 4 hours in lodging the F.I.R. For which no plausible explanation was offered by the prosecution. The F.I.R. In the case was lodged by Haji Gulu Khan cm being informed by his relative Saleh Muhammad who in turn was informed by Missal Khan who was allegedly present with the deceased at the time of incident. Whether these circumstances justified the delay in registering the F.I.R. In the G case or there were other plausible explanations for the delay in filing the F.I.R. Is once again a question which can be gone into at the trial only and not at the stage of decision of the bail application in the case. No doubt, the benefit arising from the delay in lodging the FIR. Goes to the accused which could also be taken into consideration alongwith other circumstances in the case at the stage of deciding the bail application, but delay in lodging the F.I.R. Alone is never considered a circumstance sufficient for grant of bail in a case involving capital punishment.
' It is lastly, contended by the learned counsel for respondent No,1 that grant of bail is discretionary with the High Court and Supreme Court rarely interfered with the discretion exercised by the High Court. There can be no cavil with this general proposition. However, the discretion must be exercised judiciously and according to well-settled principles of law. Therefore, where the High Court exercises discretion in a case on assumptions which are contrary to the principles laid down by this Court, such exercise of discretion is open to correction moreso as every decision by a Judge of the superior Courts serves as a binding precedent for the lower Courts. In the present case the learned Judge in Chambers exercised the discretion by granting bail to respondent No,1 in a murder case on a totally wrong premises.
' As a result of above discussion, I convert the above petition into appeal, allow the same and set aside the impugned order of High Court granting bail to the respondent No,1. The bail bonds of respondent No,1 are, accordingly, cancelled.
' ORDER OF THE COURT ' In view of the difference of opinion between the learned Judges of the Bench, the case is referred to the Hon'ble Chief Justice for further orders.
' (Sd.)
' Saiduzzaman Siddiqui, J.
' May be placed before Mr. Justice Munir Khan for further proceedings according to law.
' (Sd.)
' Chief Justice.
' MUHAMMAD MUNIR KHAN, J.---This petition for leave to appeal has been referred to me for hearing as a result of a difference of opinion between my learned brothers Fazal Ilahi Khan, J. And Saiduzzaman Siddiqui, J., over question of cancellation of bail of Gul Daraz Khan respondent No,1.
2. The petition is directed against the order dated 7-7-1994 of the High Court of Sindh, Karachi, whereby Gul Daraz Khan respondent No,1 (hereinafter referred to as the respondent) was granted bail in a case under section 302/34, P.P.C. Registered on 17-1-1994 at Police Station Quaid-e-Abad vide F.I.R. No, 24/94 on the report of Haji Gulu Khan brother of the deceased.
3. The prosecution case briefly stated is that in the presence of Missal Khan son of Wasal Khan and Abdul Khaliq P.Ws., on 16-1-1994 at 10-00 p.m. Near Gul Ahmad Centre, Gul Daraz Khan respondent and two absconders/accused namely Missal Khan son of Muhammad Zaman and Sher Nawab, in furtherance of their common intention caused the death of Nawab Khan by firing from their pistols, on account of quarrel over the route of their vehicles. It may be mentioned that the parties are transporters.
4. Gul Daraz Khan respondent was arrested on 30-3-1994. He applied for bail which was refused by the Additional Sessions Judge, Karachi East on 22-6-1994. He then filed Criminal Miscellaneous Application for grant of bail in the High Court which was allowed vide impugned order mainly on the grounds "there are general allegations in the F.I.R. As well as in the 161, Cr.P.C. Statements of P.Ws. Missal Khan and Abdul Khaliq, that all the three accused including applicant (Gul Daraz Khan) fired at the deceased. In such circumstances, as to which of the accused could be saddled with the liability of causing fatal blow to the deceased would be a matter requiring further inquiry". The High Court has also observed that by stating in their statements under section 164, Cr.P.C. On 7-5- 1994 that Gul Daraz Khan fired the shot at the deceased, the eye-witnesses have tried to improve upon their statements under section 161, Cr.P.C.
5. Before me, learned counsel for the petitioner has argued that in view of the promptly lodged F.I.R.
Containing the names of the eye-witnesses, name of the respondent-accused and the part played by him in the occurrence and the circumstance that the two empties lifted from the spot were found to have been fired from the licensed pistol of the respondent, there was no legal justification to release him on bail. Learned counsel for the State has supported this petition.
' Conversely, learned counsel for the respondent has vehemently opposed this petition on the grounds that the F.I.R. Was lodged after a delay of four hours although the police station was at a distance of one furlong from the place of occurrence; that Missal Khan and Abdul Khaliq were not present on the spot; had they been present, they would have gone to the Police Station to lodge the report without any loss of time; that the post-mortem examination report shows that the dead body was brought by the police to the Hospital, whereas the eye-witnesses claimed to have themselves taken it to the Hospital before the registration of the case; that the eye-witnesses have made dishonest improvements, as in their statements recorded under section 161, Cr.P.C. They stated that all the three accused had fired shots at the deceased but subsequently in their statements recorded under section 164, Cr.P.C. They stated that the first shot was fired by Gul Daraz Khan respondent which hit face of the deceased. Learned counsel for the respondent was of the view that since the question whether he was guilty or not needed further inquiry, therefore, the impugned order was unexceptional.
6. Keeping in view that the considerations for grant of bail and those for cancellation of bail are different and that once the bail is granted by a competent Court this Court will interfere only in exceptional cases, I have appreciated the arguments addressed by the learned counsel for the parties and find that Missal Khan and Abdul Khaliq, whose names appear in the F.I.R. As eye- witnesses, have stated in their statements recorded under section 161, Cr.P.C. That the three accused started firing at Nawab Khan, who, on receiving bullet injuries fell down. In their statements recorded under section 164, Cr.P.C., they stated that the shot fired by Gul Daraz Khan hit Nawab Khan and thereafter the remaining accused fired at him from their pistols and then Nawab Khan fell down. In cross-examination, Abdul Khaliq stated. Missal Khan P.W. In his cross-examination stated: ' So, it is very much obvious that the improvement, if any, from the statements under section 161, Cr.P.C. Has been brought in the cross-examination for which the prosecution should not suffer.
7. The medical evidence shows that the deceased had received three firearm wounds of entry. The respondent allegedly was not only armed with pistol but had also fired shot at the deceased. The companion accused also fired shots from pistols at the deceased. The Forensic Science Laboratory Report revealed that the two empties recovered from the spot were fired from the licensed pistol of the respondent. On the tentative assessment of the evidence collected against the accused it is not possible to hold that there appear no reasonable grounds for believing that the respondent has been guilty of the alleged offence which is punishable with death or imprisonment for life. The accused and his companions allegedly fired shots from their pistols at the deceased as a result whereof he fell down and died. So, it is wholly immaterial at this stage as to whose shot proved fatal. It would be premature to hold the respondent not vicariously liable for the offence. The submissions made by the learned counsel for the respondent travel beyond the scope of tentative assessm ent and require deeper appreciation of evidence which is neither permissible nor desirable at this stage. The reasons given by the High Court in support of the impugned order are not convincing and also are not sufficient for releasing an accused on bail in a murder case.
8. The observations made in this order are without prejudice to the merits of the case and shall not influence the trial Court in any manner.
9. For all these reasons, I would support the order of my learned brother Saiduzzaman Siddiqui J., although on grounds of my own. Accordingly, the petition is converted into an appeal and allowed.
The impugned order of the High Court granting bail to the respondent is set aside and the to him is hereby cancelled. He is not present in the Court. The trial Court will get him arrested and detain in the jail as an undertrial prisoner, till the conclusion of the trial.
Bail cancelled.