P L D 1968 Supreme Court 310 (PLP)

MUHAMMAD YAQUB ALI, J. The High Court has refused to interfere with the order of the trial Judge granting bail to the respondent charged with offences under sections 302/149 and 148, P. P. C, Leave to appeal is asked for on the ground that in view of the decision of this court in Muhammad Aslam and others v. The state (P L D 1967 S C 539) and Muhammad Ayub v. Muhammad Yaqub (P L D 1966 8 E 1003) the stations judge has in granting bail acted without jurisdiction as the respondent is charged with as offence punishable with death. It would be incorrect to say that a person who of an offence punishable with death or transportation cannot be admitted to bail except on ground of age sex or infirmity, as section 497, Cr. P. C., envisages that bail shall be refused if there appears reasonable ground for believing that the person accused has been guilty of an offence punishable with death or transportation for life. It follows that if the 1 Sessions Judge or the High Court form an opinion that such reasonable grounds ,do not appear the prayer for bail may be allowed. The determination whether bail will be allowed to person accused of an offence punishable with death or transportation for life will thus depend on the facts of each case. In Muhammad Aslam's case the learned Judge in the High Court not only allowed bail, but further opined that the offence committed by the petitioner fell under section 325, P. P. C. This determination though expressed in a tentative form was beyond the scope of section 497, Cr. P. C., which does not contemplate appraisal of evidence recorded by the Inquiry Magistrate or the trial Judge while dealing with a bail appli cation. The belief that the person accused has been guilty within the purview of section 497 would at an early stage rest on they accusation levelled against him the report under section 173, Cr. P. C. and the evidence which the prosecution proposes to examine, the plea of defence if any raised during the investigation or any other special circumstance appearing in favour of the accused or against the prosecution. After the material witnesses in the case have been examined, the Sessions Judge or the High Court if satisfied that reasonable grounds do not appear for believing that the accused has been guilty of an offence punish able with death or transportation for life may grant bail to him. But as all Sessions cases are heard from day to day and judgment is pronounced either at the close of the hearing or soon thereafter, an occasion for granting bail to an accused person during the trial will not arise frequently. A large number of bail applications are however made during the pendency of an inquiry under Chapter XVII of the Code of Criminal Procedure. As seen above it would be wrong for the Courts to subject the evidence recorded during the inquiry to an appraisal or criticism for the trial has not yet opened and the statement made to the Inquiry Magistrate are for the pur poses of determining only whether the person accused of an offence punishable with death or transportation for life should be committed for trial and declaring with what offence the accused is charged. It is for this reason that the examination of the prosecution witnesses before the Inquiry Magistrate ii usually brief and often not subjected to cross‑examination by the defence counsel. Similarly the full and proper plea of the accused is charged fur the However, the possibility the evidence recorded during the inquire may persuade the Sessions Judge or the High Court to believe that reasonable to rounds do not appear for believing that the person accused has been guilty cannot be altogether excluded. Then comes the stage when the accused is committed to stand trial for an offence punishable with death or transportation for life. The scope of an) order of commitment under section 210 of the Code of Criminal Procedure no doubt differs front the conditions provided in section 497 that "there appear reasonable grounds for believing that he has been guilty" but ordinarily the framing of a charge upon taking evidence referred to in section 208 and examination of the accused would furnish a ground for such a belief. At the same time the person committed for trial may in an exceptional case be allowed bail if the evidence produced before the Inquiry Magistrate prima jade makes out that reasonable grounds do not appear for believing that had been guilty. There is a seemingly incongruity between an order commitment an accused person for trial and framing a charger against him and the view funned by the Sessions Judge or the High Court that for the purposes of bail, reasonable grounds do not appear for believing that he has been guilty. This is consequent upon the difference in the provisions of section 21 and section 497 but the two sections can be reconciles by giving the regard to the order of commitment in arriving at the conclusion whether the conditions provided in section 49 for granting bail are fulfilled in a given case or not. In the instant case the only empty cartridge recovered from the spot was found to match with the gun recovered from Abdul Ghani accused and no injury was alleged to have been caused to any one by the respondent though he too was said to have fired one or two shots. In the circumstances it was within the discretion of the learned Judge of the High Court to deter mine whether reasonable grounds appeared for believing that he had been guilty of an offence under sections 302/149, P. P. C., to refuse bail. We have not examined the evidence produced before the Inquiry Magistrate, but it appears that the Sessions Judge allowed the bail to the respondent primarily on the ground that the Investigating Officer had upheld his plea of alibi and the eye‑witnesses did not attribute to him the injuries caused by gun shot to the deceased. The High Court has declined to interfere with the order granting bail for the reason that the empty cartridge found from the spot matched the gun recovered from the other accused. We would not like to express any opinion about the merits of the prosecution ease against the respondent or the plea of defence raised by him and consider it sufficient to observe that the High Court having affirmed the order of the vial Judge, granting bail to the respondent this Court in the exercise of its special jurisdiction would not ordinarily interfere with that order. The petition is dismissed. A. H. Petition dismissed.