PLJ 2022 SC (Cr.C.) 12
[Appellate Jurisdiction]
Present: Mazhar Alam Khan Miankhel
and Qazi Muhammad Amin Ahmed, JJ.
Haji SHAH
BEHRAM--Petitioner
versus
STATE
and others--Respondents
Crl. P. No. 893 of 2020, decided on 3.2.2021.
(Against
the order dated 07.07.2020 passed by the Peshawar High Court, Bannu Bench in Crl. Misc. BA No.
307-B/2020)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Cancellation of post arrest bail--Respondents
admitted post arrest bail in a case or murderous assault--Medical Officer
confirmed receipt of fire-arm injuries on the right medial forearm as well as
deltoid area with corresponding exits--Mere possibility of further inquiry
which exists almost in every criminal case, is no ground for treating the
matter as one under subsection 2 of section 497 Cr.P.C.--Nature
of injury as “Jurh Ghayr Jaifah Badiah” being punishable
under section 337 F(ii) brought respondents’ case outside the remit of
prohibitory clause of section 497 of the Code is also unsustainable--Criminal
petition is converted into appeal and allowed; impugned order is set aside and
bail granted to the respondents is cancelled. [Pp.
12, 13, 14 & 15] A, B, C, D & E
Mian Muhammad Zafar Iqbal, ASC for
Petitioner.
Mr. Salauddin Malik, ASC for
Complainant.
Mr. Arshad Hussain
Yousafzai, ASC for State.
Date of hearing: 3.2.2021.
Order
Qazi Muhammad Amin Ahmed, J.--Impugned
herein is order dated 07.07.2020 by a learned Judge-in-Chamber of the Peshawar
High Court Bannu Bench, admitting respondents to post
arrest bail in a case of murderous assault wherein they were arrayed on
petitioner’s complaint. It is alleged that on the eventful day at 4:30 p.m, respectively armed with a Kalashnikov and .12 caliber
gun, they targeted the petitioner within the remit of Police Station Gambela, District Lakki Marwat, in the backdrop of an ongoing feud over the
property; he was medically examined under a police docket same day when the
Medical Officer confirmed receipt of fire-arm injuries on the right medial
forearm as well as deltoid area with corresponding exits, designated as Jurh Ghayr Jaifah
Badiah. The reasons that weighed with the High Court
to allow the motion are as follows:
“In
the instant case, the occurrence had reportedly taken place at 16:30 hours with
a considerable unexplained delay of three hours. The I.O has recovered only two
crime empties of 7.62 bore from the place of accused/petitioner Umer Jan, while no empty whatsoever has been recovered from
the place of accused/petitioner Hameedullah who was
attributed firing with DBBL shot gun. All the above noted facts cast grave
doubt on the veracity of prosecution case and needs further inquiry into the
guilt of accused/petitioners. As per medico legal report, the nature of injury
sustained by complainant “Ghayr Jaifah
Badiah” is covered by Section 337 F(ii)
which does not fall within the prohibitory clause of Section-497 Cr.P.C.”
Learned counsel for the petitioner while referring to a string
of identical criminal cases registered against the respondents has primarily
argued that there was no occasion for the High Court to release the respondents
on bail as the statements of the witnesses supported by medical evidence and
investigative conclusions, squarely constituted “reasonable grounds” within the
contemplation of section 497 of the Code of Criminal Procedure, 1898, standing
in impediment to their release on bail in the absence of any space admitting
consideration for “further inquiry”, a sine qua non, for favourable
exercise of discretion; the bottom line is that the impugned order being
nugatory to the settle norms of exercise of discretion warranted interference.
Learned counsel for the respondents has defended the impugned order on the
grounds that once bail is granted by a competent tribunal, exceptionally strong
grounds are required to recall interim freedom, adding that final adjudication
can always remedy interim release of an offender even if erroneous in case the
prosecution succeeds to drive home the charge at the end of the day; the
impugned order being within the four corners of law, particularly in the wake
of submission of report under section 173 of the Code is not open to exception,
concluded the learned counsel.
2. Heard. Record perused.
3. Section 497 of the Code of Criminal Procedure, 1898 places
an unambiguous bar on grant of bail to an accused, “……… if there appear
reasonable grounds for believing that he has been guilty of an offence
punishable with death or imprisonment for life or imprisonment for a term for
ten years”: However, subsection 2 thereof provides an escape route to him
if, at any stage of the investigation, inquiry or trial, it is observed that
there are no reasonable grounds for believing that he had committed a non-bailable offence and instead there were sufficient grounds
for ‘further inquiry’ into his guilt. It is in this clearly demarcated
statutory framework that an accused charged with an offence punishable with a
term of 10 years or above has to make out a plea for his release on bail.
Criminal
cases, invariably resting upon vastly distinguishable facts, do not admit space
for hard and fast rules, empirically applicable with any degree of unanimity in
every situation; in each case culpability of an accused is to be assessed,
having regard to its own peculiar facts and circumstances, therefore,
determination of “sufficient grounds” in contradistinction to “further
inquiry” has to be essentially assessed, with a fair degree of objectivity
on the basis of evidence collected during the investigation; wording employed
as “there are no reasonable grounds for believing that the accused has
committed a non-bailable offence” is an
expression of higher of import and, thus, cannot be readily construed in the
face of material, prima facie, constituting the offence complained. “Every
hypothetical question which can be imagined would not make it a case of further
inquiry simply for the reason that it can be answered by the trial subsequently
after evaluation of evidence”.[1]
Similarly, “mere possibility of further inquiry which exists almost in every
criminal case, is no ground for treating the matter as one under subsection 2
of section 497 Cr.P.C.[2]
It clearly manifests that expression “further inquiry” is a concept far
from being confounded in subjectivity or to be founded upon denials or parallel
stories by the defence; it requires a clear finding
deducible from the record so as to be structured upon a visible/verifiable
void, necessitating a future probe on the basis of material hitherto
unavailable. With the available statement of the injured supported by the eye
witnesses, “who cannot be stamped as false witnesses at bail stage”,[3]
confirmed by medical evidence. The High Court has clearly misdirected itself in
holding that respondent’s culpability warranted further inquiry. It cast away
the very basis of the impugned order. Argument that exceptionally strong
grounds are required to cancel bail
