1968 PLP 1305 (SCMR)

(On appeal from the order of the High Court of West Pakistan, Karachi Bench, dated the 5th June 1968, in Criminal Miscellaneous Application No. 135 of 1968). -- S. 497 and Penal Code (XLV of 1860), S. 307‑3ah in non‑bailable offences‑Cancellation of bail‑Courts acting under S. 497, Cr. P. C. precluded from evaluating evidence for determining nature of offence‑High Court in cancelling bail evaluating medical evidence and characterizing injury as grievous‑Special Leave to Appeal granted by Supreme Court to consider whether High Court acted on correct principles of law in cancelling bail. Muhammad Aslam and others v. The State P L D 1967 S C 539 ref. ORDER SAJJAD AHMAD, J.‑A case has been registered against the petitioners under sections 307/34, 452 and 148, P. P. C. at the instance of Zamir Husain complainant, against whom a report was lodged for having injured Shakil, a brother of Riaz Ahmad petitioner, a few hours before the present occurrence. The petitioners applied for anticipatory bail to the Sessions Judge, Karachi, which was allowed. This has, however, been cancelled by the learned Single Judge of the High Court at Karachi on an application moved before him under section 497 (5) of the Criminal Procedure Code. There is only one incised injury on Zamir Hussain which is ascribed to the petitioner Shahid Umar and which according to the contention of the learned counsel for the petitioners, is simple in nature. Bail has been cancelled by the learned Single Judge because in his view this injury was grievous and each of the petitioners was liable to the sentence of transportation for life if the case under section 307/34, P. P. C. was proved against them as laid by the prosecution. He has referred to the Supreme Court Judgment in the case of Muhammad Aslam and others v. The State (P L D 1967 S C 539), for holding that the Courts acting under sections 497 and 498, Cr. P. C., were precluded from evaluating evidence including the medical evidence for determining the nature of the offence for purposes of granting bail which must be left for the trial Judge to decide without any prejudicial remarks from the higher Court. We are doubtful if the deductions made by the learned Single Judge in this behalf are correct. In fact, in cancelling the bail of the petitioners he has himself evaluated the medical evidence in characterizing the injury of Zamir Hussain to be grievous. We allow this petition to consider the question whether in the circumstances of this case the learned single Judge has acted on correct principles of law in cancelling the bail of the petitioners, as allowed to them by the learned Sessions Judge. We grant interim bail to the petitioners other than Shahid Umar who is charged for having caused the incised injury to the complainant. Bail bonds shall be furnished by them to the satisfaction of the learned Sessions Judge, Karachi. We would like to make it clear that refusal of interim bail by us to Shahid Umar does not fetter the discretion of the trial Judge to allow him bail at any stage, if after recording some evidence, wholly or in part, including the medical evidence, he comes to the conclusion that the facts and the circumstances of the case justify Shahid Umar's release also on bail. This order would in no manner prejudice the merits of the case. Leave granted.