1992 PLP 1286 (SCMR)

‑‑‑‑S. 497(1)‑‑-Penal Code (XLV of 1860), Ss. 302 & 304, Part‑II‑‑‑Constitution of Pakistan (1973),, Art. 185(3)‑‑‑Leave to appeal was granted to examine the proposition advanced that it might be possible to hold that when a case was made out under S.304‑1, P.P.C., the offence being punishable with imprisonment for life bail was prohibited under S.497(1), Cr.P.C. but while under S. 497(1), Cr.P.C. the Court had no jurisdiction to grant bail if on merits such a finding was rendered, as the word used for such command was "shall"; considerations when determining the question of "cancellation" were different because S.497(5), Cr.P.C. under which power was exercised did not command the Court to cancel the bail even when the offence was punishable with death or imprisonment for life and even if the grant of bail was prohibited under S.497(1), Cr.P.C. and discretion left in the Court under S. 497(5), Cr.P.C. was pari materia with the principles which apply to the setting aside of the orders of acquittal. Muhammad Munir Peracha, Advocate Supreme Court, M. Bilal, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record (absent) for Petitioner. Nemo for Respondents. Date of hearing: 21st July, 1991. MUHAMMAD AFZAL ZULLAH, C.J.‑‑‑Leave to appeal has been sought in this bail matter; against the order of the High Court; whereby the bail granted to the petitioner was cancelled. The bail in this case was granted on the consideration that although the case was registered under section 302, P.P.C. as of murder, the F.I.R. which is the basis of the prosecution case (so far) made it a case under section 304, Part 1, P.P.C. for the reason that the accused/petitioner claimed to have acted on grave and sudden provocation. And thus, caused injuries to his wife as well as her paramour who, according to him, was caught red‑handed on surprise visit to his own house. The F.I.R. is also‑based on the statement of the accused to the above fact. The High Court on difference of opinion held that the offence in any case being also punishable with imprisonment for life the accused would not be entitled to bail. Learned counsel has argued that it may be possible to hold that when a case is made out under section 304, Part 1, P.P.C. the offence being punishable with imprisonment for life bail is prohibited under subsection (1) of section 497, Cr.P.C. But, according to him while under subsection (1) of section 497, CI.P:C. the Court has no jurisdiction to grant bail if on merits such a finding is rendered, as the word used for such command is "shall". But, he further argued the considerations when determining the question of "cancellation" are different because subsection (5) of section 497, Cr.P.C. under which power is exercised, does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life and further even if the grant of bail is prohibited under subsection (1) of section 497, Cr.P.C. According to dim the discretion left in the Court under subsection (5) of section 497, Cr.P.C. is pari materia with the principles which apply to the setting aside of the orders of acquittal. The proposition advanced by the learned counsel has prima facie force and also support of the authorities of this Court. Leave to appeal accordingly, is granted.' M.BA./M‑1618/S Leave granted.