KHUDA BAKHSH Versus THE STATE

ORDER

MUHAMMAD AFZAL ZULLAH, J.‑‑After hearing both the learned counsel, we have converted this petition into appeal. The petitioners Nos.1 and 2, who are father and son, respectively, are accused in a murder case: An alleged absconding assassin and another accused in the case are not before us.

2. The learned Judge in the High Court, after noticing that there is no allegation or evidence of direct participation in the crime A of appellant No.1 and further that appellant No.2 also has not been attributed any injury to the deceased, dismissed their petition for, bail.

3. It was asserted on behalf of appellant No.2 that he was of 13 years of age. Without rejecting this plea, the learned Judge thought it proper to dismiss his petition with the following observation:‑

"In view of the role allegedly played by Muhammad Tariq, petitioner in the commission of the crime, I do not think that even if he was thirteen year. of age at the time of the incident, he is entitled to the concession of bail."

4. As already noted Tariq appellant has not been attributed any injury to the deceased. The 'presence' attributed to him at the spot is not such that the, learned Judge should have denied him the consideration under First Proviso to section 497(1), Cr.P. C. without assigning any other reason. After hearing both the learned counsel we accept his appeal by application of the said proviso.

5. It is not denied that the only evidence so far collected against appellant No.l is: .suspicion expressed by the deceased prior to the occurrence. The learned counsel for the State expressed the view that section 34, P.P.C. could be applied in his case. After hearing him, it appears to be a case of abetment and/or conspiracy, against appellant No.1; but for that the Investigating Agency would have to collect more evidence to justify refusal to grant bail in his case. Police might be able to arrest on such or similar material and even on reasonable suspicion. But considerations regarding bail under section 497(1) and (2) are different:‑

(i) If, "there appear reasonable grounds for believing ...." as visualised in prohibitory part of section 497(1) bail shall not be granted (exceptions apart):

(ii) If, no such positive finding, though tentative, can be rendered against the accused then bail can be refused but ordinarily i ' is not refused without some cogent reasons:

(iii) If, however, there is a negative finding though tentative, on consideration of entire material, as envisaged by section 497(2) that "there are no reasonable grounds for believing then bail shall not be withheld:

(iv) If, there is no finding as is mentioned above in category (iii). bail cannot be granted in a case falling in the prohibitory part of section 497(1? (exceptions apart) merely on the ground that there is scope f or "further enquiry". There will hardly be any case in which there is no scope or further enquiry. This is often being ignored the Courts.

6. This is a case clearly of category (ii), for appellant No.1. The circumstances about divorce and renunciation with his wife are relevant regarding motive, but they are not such as to withhold bail. It should not have been denied to him on the present state of the material, on mere suspicion. His appeal, therefore. is also allowed.

7. Both the appellants shall be released on bail on furnishing bail bonds and sureties in the sum of Rs.20,000 each to the satisfaction of the learned A.C concerned‑

8. The observations made in this order or the orders passed by the learned Courts below shall not influence the course of the trial of the main case. It is further observed that if the investigating agency collects sufficient further material against appellant No.1 and an application for cancellation of his bail (Hafiz Khuda Bakhsh) is moved this order shall not bar the cancellation of bail, if a case then is made out in that behalf.

M.B.A. /K‑55/S Bail granted.