1988 PLP 1743 (SCMR)

NASIM HASAN SHAH, J.‑‑This appeal, by leave of this Court, is directed against the judgment dated 22‑9‑1985 of the Peshawar High Court, whereby bail was allowed to Said Muhammad Khan, respondent, in a case of murder wherein he had been attributed a direct role of having caused fatal hurt to the deceased. In an earlier round of litigation, Said Muhammad was allowed bail at lower forums, the High Court cancelled the said bail by its judgment dated 7‑4‑1985. It took note of the fact that although the police officer who appeared in Court expressed the opinion that the accused Said Muhammad was innocent on the basis of plea of alibi and that his name might be mentioned in Column No.2, yet there was sufficient direct evidence against him so as to justify the assumption that reasonable grounds existed that he had committed the offence. Accordingly, his case was treated as one covered try to be prohibition contained in subsection (1) of section 497, Cr P.C. and the bail was cancelled. This order of the High Court (dated 7‑4‑1985) was challenged by the accused respondent in this Court but after some arguments the petition for leave to appeal was withdrawn. After the withdrawal of the petition for leave to appeal from this Court, it appears that another bail application was moved in due course in the High Court on the basis of an actual entry of the name of accused respondent in Column No.2 on the basis that the police thought him to be innocent. This application was allowed by the High Court by judgment dated 22‑9‑1985. Hence this appeal. The judgment dated 22nd September, 1985, it appears, takes note of the first part of subsection (2)'of section 497 where under if a police officer investigating the case comes to the conclusion that n reasonable grounds exist to believe that the accused has committed a non‑bailable offence he shall then be released on bail. But it appears that the learned Judge in the ‑High Court failed to notice another part of subsection (2) of section 497, Cr.P.C. namely, that not only the police officer is empowered to express the opinion that reasonable grounds do not exist for believing that the accused is guilty of the offence under subsection (2) of section 497, Cr.P.C. but also that the Court is competent to express a similar opinion. Thus where the Court expresses a similar opinion in a given case even then the r accused shall be released on bail. However, the question is as to what will happen if the police officer is of the opinion that there are no reasonable grounds to believe that the accused has committed the offence, while the Court expresses a contrary opinion and whose opinion will be entitled to more importance? In other words, how shall the controversy be resolved? It is true that a person accused of a non‑bailable offence is entitled as of right to bail if the officer incharge of the Police Station comes to a definite conclusion on consideration of entire material that "there are no reasonable grounds for believing that accused had committed a non‑bailable offence". Column No.2 of the Challan Form relates to the names and addresses of the accused persons not sent up for trial. According to the learned Judge in the High Court if an accused is placed in Column No.2 the effect is that until an alteration is made in the challan by the investigating agency or the trial Court decides to summon the accused it shall be presumed that there are no reasonable grounds for believing that the accused has committed a non‑bailable offence. But he has gone on further to opine that it is only the trial Court which can take a 'different view from the point of view expressed by the police officer and no other Court including the High Court can take a different view therefrom. This conclusion does not appear ‑to be in accord with the intendment of the relevant statutory provision. Subsection (5) of section 497, Cr.P.C., for instance, provides chat "a High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody". But, according to the learned Judge in the High Court, no Court, except the trial Court, can act against the opinion of the investigating officer and even the High Court must surrender its discretion in favour of that of the Investigating Authority. This is not the intendment of the law. The High Court is certainly not denuded of the authority to see and assess whether the material already on the record was sufficient for the investigating officer come to the conclusion that no reasonable grounds existed for believing that the accused had committed a non‑bailable offence. In our view there was no bar upon the High Court from evaluating the material on the record to see whether the investigating authority was justified in thinking that the accused was innocent, on the basis of the said material. The learned Judge in the High Court was not, therefore, right in refusing to go into this aspect of he matter because the material could clearly be examined by it and the opinion of the police officer directing that the accused be placed in Column No.2 did not stand in the way of making such an evaluation. In our opinion, the existing material on the record did not warrant the conclusion that the accused could not reasonably be believed to have committed a non‑bailable offence. Accordingly, we would set aside the order of the High Court and cancel the order of bail granted by it. The trial, however, should be disposed of at an early date strictly on its own merits in the light of the evidence which is brought at the trial. M.B.A./I‑38/S Appeal accepted.