P L D 1963 (W (PLP)

Raza for Petitioners. Abdul Kader Sheikh for the State. Date of hearing : 15th May 1963. In this case the petitioners are apprehending that they will be arrested in furtherance of a complaint made by one Murad son of Gulzar on the 20th April 1963 at 10 p.m. The incident is alleged to have taken place at the shop of Vikio Umrani. It is now stated that this Vikio has died as a result of the injuries he received in the course of the incident that day. A bare reference to the F. I. R. indicates that the present applicant Ghulam Ali Shah and Anwar, the latter described as a hotelier, are alleged to have incited their men not to spare Alinawaz, and at their incitement Abbas, Bashir Hussain Shah, Sadik and others grappled with Alinawaz and stabbed him with knives. It appears that Illahibux was also seriously injured and his dying declaration was recorded on the day of the incident. He is a tonga‑driver, and on being questioned has stated that he saw Ali Nawaz bringing one person caught by him. In the meanwhile he also received blows and fell down at a distance. He stated that he received blows with a "lorh". On being further questioned, as to who inflicted injuries on him, he stated that he could not say who precisely inflicted the blows as there was a crowd, but added at the end that if he was shown the aggressors he would be able to identify them, although he did not know their names, In the course of arguments, Mr. Raza for the petitioners has urged that the petitioner Ghulamali Shah, who is the Chairman of the Union Council has had a running dispute in the past with several officials, specially with the present S. P. of Sanghar against whom he had filed a complaint in 1956 when the present S. P. was posted in that district. On the aspect of whether this Court has jurisdiction to grant bail in such matters or not, I have been referred to P L D 1956 Kar. 381, where Wahiduddin, J. observed that the High Court has unfettered discretion under section 498 and is not precluded from taking special circumstances into consideration for granting bail. The rule of general law laid down in section 497, Cr. P. C. is not binding on the High Court. The question of granting or refusing bail depends upon the particular circumstances of each case ; the mere fact that an offence is punishable with death or life imprisonment is not by itself sufficient to refuse bail under section 498, Cr. P. Code. The policy of law is to grant bail, rather than refuse it in the case of under trial prisoners, and the Courts should be lenient until they are convicted. In the case of Khalid Saigol v. The State (P L D 1962 S C 495), Hamoodur Rehman, J. observed that under section 497 (1), in the case of an offence punishable with death or transportation for life, the mere heinousness of the offence is not by itself sufficient to take away the discretion of the Court to grant bail, but in addition thereto, there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. Subsection (1) of section 497 evidently applies to a stage where the accused is first brought before the Court, or his arrest is brought to the notice of the Court, and, as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. Conceding, therefore, that this Court has unfettered powers in the matter of granting bail, and bail before arrest, the point for consideration is whether, in the circumstances as urged before me, this Court at the stage at which the investigation of the case is alleged to be, should consider the question of granting bail. I wish to make it clearly understood that whatever reference I have made in this order should not be taken to be an expression of opinion on any aspect of the case, but from all points of view, as have now been urged before me, I would, for the present, confirm the grant of bail initially given to the applicant, although I do feel that normally in such a case, without the other circumstances, such an application should initially have been made to the original Court, namely, the Court of the committal Magistrate. This order is subject to the condition that if during the trial in the committal Court in the[ Sessions Court, it is felt that a strong prima facie case has been made out for remanding the applicants to custody, their bail may be cancelled. Order accordingly.