1997 P Cr (PLP)

Shah Zaman v. The State PLD 1994 SC 65 ref. Ch. Muhammad Ashraf Mohandara for Petitioner. Atta Muhammad Baloch for the State. Heard.

2. Petitioner alongwith others is facing trial of a case under section 302/109/148/149, P.P.C. registered at Police Station Saddar Khanpur vide F.I.R. No. 118 of 1996, dated 1‑5‑1996, allegedly for causing/committing murder of Manzoor Ahmad by cutting his nose, on account of his suspected illicit liaison with Mst. Bano, wife of Rahim Bakhsh petitioner and sister of Qasim and Hakim Ali, his co‑accused. '

3. Concession, asked for, has been claimed on the pleas that entire prosecution version/case stands impaired beyond repair, bail of some of co- accused was confirmed on 15‑9‑1996, no injury towards deceased has been attributed to the petitioner; only role ascribed to him is of holding of deceased from his arms; being night occurrence, identification of accused is doubtful, benefit of doubt, how slight if may be has to go to accused, petitioner has been roped in due to party faction, his case is on better footing than that of coo‑accused namely, Ayub, who stands enlarged on bail, petitioner is no more required by police for any purpose and, in any event, his case falls within the ambit of "further inquiry". Reliance has been placed on Shahid v. The State 1994 SCMR 393, Muhammad Haroon and another v. The State 1994 SCMR 216,'Mehmood Akhtar and another v. Nazir Ahmad and 4 others 1995 SCMR 310 and Koochi v. The State 1995 PCr.LJ 912 in support of his contention.

4. It has been opposed vigorously with the assertions that the petitioner specifically stands nominated in F.I.R. it was not possible for co‑accused to cut the nose of deceased without active assistance of petitioner, who, caught hold of Manzoor Ahmad deceased from his arms, Mst. Bano being wife of present petitioner, there is igniting motive behind the occurrence and particularly with petitioner, and that case falls with prohibitory clause of section 497, Cr.P.C.

5. According to subsection (2) of section 497, Cr.P.C., where there are reasonable grounds for believing that the accused has committed a non‑bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail. While interpreting above provisions in the case of Arbab Ali v. Khamiso and others 1985 SCMR 195, it was held by august Supreme Court that bail can be allowed in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 497, Cr.P.C. when there are sufficient grounds for further inquiry into the guilt of the accused, but only, on the condition when the Public Officer or the Court at any stage of investigation, inquiry or trial, as the case may be comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a non‑bailable offence. Without such finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry. In Azmat Ullah Khan v. Bazi Khan and another PLD 1988 SC 621, illuminating observations are to the effect "mere possibility of further inquiry which exists almost in every criminal case, is, no ground for treating the matter as one under section 497(2), Cr.P.C. Such a question also came up for examination before learned Division Bench in the case of State v. Aziz alias Abdul Aziz PLD 1985 Kar.

27. It was held in this case that the question of further inquiry would only arise of the Court first comes to the conclusion that reasonable grounds do not exist for believing that a person has committed a non‑bailable offence. On the other hand, if the Court comes to the conclusion that there are reasonable grounds to believe that the accused has committed the offence, there is no question to Court holding a further inquiry into the matter for the purpose of grant or refusal of bail. "

6. In the instant case, prosecution is apparently equipped with sufficient material in different shapes to connect the petitioner with the commission of offence with which he stands charged. Tentative assessment of the same, at this juncture, does not lend any support to the cause of petitioner as reasonable grounds exist for believing that he has committed a non‑bailable offence of the nature, which, falls within prohibitory clause.

7. Be that as it may, provisions of section 497(2), Cr.P.C. are neither attracted or entailed to the facts of case against petitioner nor the same can come into play or pressed into service. As enunciated in Shah Zaman v. The State PLD 1994 SC 65, "Now, what will constitute as sufficient grounds for further inquiry, would depend upon peculiar facts of each ease and no hard and fast rule can be laid down for the purpose. Every hypothetical question which can be imagined would not make a case of further inquiry 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 inquiry, into his guilt which means that the question should be such which has nexus with the result of the case and may show or lead to show that accused is not guilty of the offence with which he is charged". Same is lacking in instant case, inasmuch as, Mst. Bano happens to be wife of petitioner, who seemingly has every reason not only of sharing common intention but also of facilitation of crime ascribed to him.

8. In these circumstances, he cannot be taken to be entitled to the concession asked for on the pleas including of "further inquiry" advanced on his behalf. Application, accordingly, merits rejection and is hereby turned down. N.H.Q./R‑33/L Bail refused.