1998 P Cr (PLP)

5. It may be stated at the very outset that it would be appropriate to reproduce the relevant portion of the impugned order here, by which the Special Judge had refused to enlarge the petitioners on bail, in order to find out as to whether or not the Special Judge had taken into consideration the conditions laid down, in section 497, Cr.P.C., for refusing bail. The relevant portion of the said order is as under:‑‑ ..... Contentions of either sides heard. I tend to agree with the arguments advanced on behalf of the prosecution. The petitioners are directly charged in the report for causing the murder of Noor Wali Khan in furtherance of their common intention. P.W. Saddar Nawaz has also supported the version of the complainant. The medical evidence is in the tune with the prosecution's case. Furthermore, the petitioners remained fugitives from law for about 7 months. An absconder loses some of his normal rights granted to him by procedural as, well as substantive law as laid down in the case of Awal Gul v. Zawar Khan and others reported in PLD 1985 SC

402. As such reasonable grounds exist that the petitioners have committed a non bailable offence and are adjudged not entitled to the concession of bail, Petition in hand is accordingly rejected."

6. From a plain reading of the order, as well as the perusal of the relevant record, I am convinced in my mind, that the Special Judge has duly taken into consideration all the material facts of the case and after doing so has recorded a speaking order. This is the result of proper/appropriate application of judicial mind. Since the impugned order is neither arbitrary nor perverse, therefore, it is not liable to be set aside.

7. Besides, the submission of the learned counsel for the petitioners that the case of the petitioners is that of further inquiry would require deeper appreciation of evidence which is neither desirable nor permissible at this stage, Needless to mention that a case would fall within the scope of further inquiry, under section 497, Cr.P.C., only if the Court reaches the conclusion that on the material, placed before it, it appears that there are reasonable grounds for believing that the accused is not guilty of an offence punishable with death/imprisonment for life or 10 year. In other words, in the absence of a finding to this effect there would be no occasion to hold that the case is that of further inquiry and that, therefore, the accused are entitled to be released on bail. In the case in hand all the Petitioner have been directly charged for having murdered the father of the complainant with lethal weapons (klashnikovs) not only in the F.I.R. but also in the statements of the P.Ws. recorded under section 161, Cr.P.C. In the circumstances, it would be wholly immaterial as to whose shot proved fatal.

8. On a tentative assessment of the material/record it is not possible for me to come to the conclusion that reasonable grounds do not exist for believing that the petitioners have committed the offence with which they have been charged. I am, therefore, of the view that the discretion exercised by the Special Judge, in refusing the bail, has been exercised judiciously and in accordance with the well established principle of law. The exercise of discretion by the Judge, in the circumstances, is not liable to be interfered with. Besides, the reasons given by him for not releasing the petitioners on bail are quite sufficient/convincing. Reliance is placed on the following cases:‑‑ (i) Ijaz Ali Khan v. The State 1968 SCMR 1168(1): "The petitioner who is charged with the offence of murder has been refused bail by the Courts below from which he now seeks leave to appeal. On examining the facts appearing in the order of the learned Judge in the High Court we are inclined to the view that the conditions laid down in section 497, Cr.P.C. for refusing bail to the petitioner were amply fulfilled in this case. The petition is dismissed." (ii) Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182: (b) Criminal Procedure Code (V of 1898)‑-- ‑‑‑‑S. 497(2)‑‑‑Phrase "further ‑inquiry", scope and meaning of‑‑‑Bail under S.497(2), Cr.P.C. can be granted to accused as of right if Officer Incharge of Police Station or Court taking cognizance of matter comes to a definite conclusion on consideration of entire material that there are no reasonable grounds for believing that accused has committed a non‑bailable offence'. Accused cannot be released on bail on ground of 'further inquiry' without such finding of said authorities. (d) Criminal Procedure Code (V of 1898)‑-- ‑‑‑‑S. 497(2) & (3)‑‑‑Penal Code (XLV of 1860), S.302/148/149‑‑‑Bail to. be allowed only where no reasonable grounds exist for believing that accused has committed a non‑bailable offence but there are sufficient grounds for 'further inquiry' into his guilt‑‑‑When sufficient grounds for ' further inquiry' into guilt of accused exist there would then be some justification for putting him on trial for offence for which he is charged but in such eventuality law entitles accused to bail during pendency of trial, subject to cancellation of bail under S.497(5), Cr.P.C. on availability of evidence or other sufficient cause." (iii) Mian Gul Jan v. Muhammad Ali Jan and another 1995 SCMR 1103. ‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Constitution of Pakistan (1973), Art.198(3)‑‑‑Bail‑‑‑Complainant himself before his death had specifically charged the accused in his F.I.R. with the firing‑‑‑Courts below had rightly exercised discretion in refusing bail to accused‑‑‑Contentions that the manner in which the incident allegedly took place was not possible and that the deceased could not suffer the injury from the place where accused were shown to be present, required appreciation of evidence which was not possible at bail stage‑‑‑Leave to appeal was refused accordingly." (iv) Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765; (b) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 497(2)

Further inquiry'‑‑‑Scope explained‑‑‑Guidelines. A case would only fall within the scope of further inquiry under S.497, 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 finding to this effect, there will be no occasion for the Court to hold that the case is one of further inquiry. In order to ascertain that no reasonable grounds exist to believe that the accused is guilty of a non -bailable offence or offence punishable with death, imprisonment for life or imprisonment for 10 years, the Court, if the case is still at the stage of investigation will make a tentative assessment of the allegations against the accused persons 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 for cognizance of the case, may, in addition to the material collected by the police, also take into consideration the evidence produced before it."

9. This bail petition does not merit consideration and is accordingly dismissed. N.H.Q./2208/P Bail refused.