1990 SCMR 83 (PLP)

Nemo for Respondents. Date of hearing: 24th June, 1989. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the complainant side in a case of murder; against the grant of bail by the High Court to respondent No.l, an accused in the case. The learned Judge while concluding the impugned order made observation with regard to the existence of cross-cases between the parties and treated this circumstance as also the further circumstance that the case need further "investigation" (he probably meant "inquiry") and thus allowed bail to the respondent/accused as follows:- "The registration of both the cases would reveal that both the parties had attacked each other. The petitioner herein and his father were injured by the accused of F.I.R. No. 408 by sharp edged weapon whereas the petitioner has been charged in F.I.R. No. 407 for firing at and injuring Abbas Shah who subsequently succumbed to his injuries. "Since both the F.I.Rs. show that there were two cross cases, the vital question for determination is which of the parties was the first to start the occurrence. As such it was a case of further investigation. I will, therefore, accept this petition and admit the petitioner Banaras to bail in the sum of Rs.30,000 with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Magistrate." Learned counsel has argued that it appears from the aforequoted observations that the learned Judge in the High Court was under impression that the respondent's case was covered by subsection (2) of section 497, Cr.P.C. In this behalf he argued; firstly, that when the challan has been submitted the said provision is not attracted as according to him no further "investigation" can be conducted. Secondly, he contended that if the learned Judge was of the view that it was a case of "further inquiry", section 497(2), Cr.P.C. was applicable only when the learned Judge had found it as a fact that the case against the respondent did not disclose "reasonable grounds' for believing that the accused has committed (a non-bailable offence) but there are sufficient grounds for further inquiry into his guilt. As argued, there being no such finding the respondent could not be allowed bail. Thirdly, the learned counsel argued that the main reason which prevailed with the learned Judge was: 'Since both the F.I.Rs. show that there were two cross-cases the vital question for determination is which of the parties were the first to start the occurrence'. This, by itself. according to learned counsel, is hardly a ground for bail either under subsection (1) of section 497 or for giving the necessary finding referred to above in subsection (2) of section 497, Cr.P.C. Last two contentions raised by the learned counsel require examination. Leave to appeal, accordingly, is granted. M.A.K./A-607/S Leave granted.