1988 PLP 1129 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑This is an appeal by leave against the order of a learned Single Judge of the Peshawar High Court, dated 3‑8‑1985, whereby respondent Liak Khan and his co‑accused Rashid Ahmad (since dead) were allowed bail.

2. The respondent is charged under section 302, P.P.C. for committing the murder of Muhammad Aslam Khan. The occurrence was alleged to have taken place at night between the 16th and 17th of March, 1985, the report of which was made by the father of the deceased on 17‑3‑1985 at 7‑00 in the morning. The respondent having failed to secure his release on bail from the Court of the Magistrate and the Sessions Judge, Bannu, approached the High Court for his release on bail. The learned Judge in his Chambers vide his order dated 3‑8‑1985 admitted the respondent to bail.

3. On the appeal by the State, leave was granted to consider the propriety of the order of the learned Single Judge in allowing bail to the respondent under section 497(2), Cr.P.C.

4. We have heard the learned counsel for the parties. The learned Judge in his Chambers after discussing the available evidence while observing: "The accused party and their relations had taken an oath o the Holy Quran before the gathering of the tribesmen proclaiming the innocence of the accused petitioners." held that the case of the respondent is covered by the provision of section 497(2), Cr.P. C. and allowed him bail.

5. The provision of section 497(2), Cr.P.C., which has received careful consideration by this Court in a number of cases and has been interpreted time and again, reads: "

497. When bail may be taken in case of non‑bailable offence ******** (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non‑bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided." In the case of Ibrahim v. Hayat Gul and others reported in 1985 SCMR 382, while interpreting the phrase "further inquiry" it was held: "This provision does not leave it to the discretion of the Court to withhold bail to a person accused of a non‑bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the officer incharge of Police Station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that 'there are no reasonable grounds for believing that the accused has committed a non‑bailable offence'. Without such finding by such Officer or the Court the accused would not be released on ground of further inquiry under subsection (2). And similarly if such a finding is recorded the accused cannot be denied the right of bail granted to him by the same provision. In the present case neither the officer nor the Court concerned recorded the prerequisite finding. That being so the respondent could not be released on bail on ground of so‑called further inquiry under subsection (2) of section 497, Cr.P.C." This was followed in the case of Muhammad Sadiq v. Sadiq and others reported in P L D 1985 S C

182. Again, in the case of Dr. Behram Khan v. Nisar Ahmad Bacha and others P L D 1986 S C 118 it was observed: "The judgment of the High Court is too elaborate to suit the required needs of either of the provisions. The points involved in the case could have been disposed of in a shorter judgment as well by taking into consideration the main grounds which ordinarily float on the surface of the case and deep analysis of the contentions raised by the parties on each point was not necessary. But that by itself is also no ground for coming to the conclusion that the case could not be dealt with under subsection (2) of section

497. We are conscious that the language used in subsection (1) and subsection (2) of section 497, in so far as the existence or otherwise of the reasonable grounds for believing that the accused has committed the offence, is similar; but the same has been used in both the provisions in different context. While in subsection (1) of section 497, the phrase has been used as a bar to the grant of bail, it is used in subsection (2) as a ground for allowing the bail to the accused as of right. It is not necessary to further discuss this aspect of the matter as the law has already been sufficiently clarified in the decisions of this Court. We, however, agree with the learned counsel that while examining the facts and circumstances of the case for the purpose of bail the case could also have been examined first under subsection (1) of section 497, Cr.P.C. as the offence was punishable with death or imprisonment for life and after having excluded the application of the barring provision contained therein, bail could be then granted under subsection (2) of section 497, Cr.P.C. But this is only a procedural technicality which does not furnish enough basis for setting aside the impugned judgment."

6. As for the merits of the case, the perusal of the record shows that though the investigating agency has taken note of the oath having been taken by the relatives of the respondent about his innocence but it did not express any opinion of the respondent being not guilty of the offence. The learned Judge too did not give and finding that there are no reasonable grounds for believing that the respondent has committed a non‑bailable offence. Therefore, in they absence of such a finding the respondent would not have been admitted' to bail on the ground for further inquiry under section 497(2), Cr.P.C.

7. We are, however, not inclined to cancel the bail of the respondent, for the case is of early 1985 and there is a possibility that the respondent either has stood his trial or that his trial is t D commence soon. Thus, we maintain the order of grant of bail to the respondent on the ground other than the one given by the High Court.

8. The appeal is dismissed. M.Y.H. /S‑139/S Appeal dismissed.