ASMATULLAH KHAN Versus BAZI KHAN

1. NASIM HASAN SHAH, J. ‑‑This appeal, by leave of this Court, is directed against the judgment and order passed by the Lahore High Court on 21‑2‑1988, whereby a learned Single Judge of the said learned Court allowed bail to respondent No.1 (Bazi Khan).

2. The relevant facts are that on 9‑7‑1987 Mst. Said Bibi aged 16/17 years was proceeding towards the factory of one Zaman alongwith her sister Mst. Wallan Bibi when Qadir Khan, Bazi Khan (respondent No.1 herein), Silla Khan and Mushtaq Khan forcibly abducted Mst. Said Sibi and took her alongwith them in a rickshaw. The occurrence was witnessed by Mst. Wallan Bibi, Dalair Khan and. Khan Mir. The First Information Report was registered on the written application of the father of Mst. Said Bibi (Asmatuallh Khan appellant herein) at 6 p.m. on 9‑7‑1987 at Police Station Lower Mall, Lahore.

3. Bazi Khan, respondent No.1, is said to have fled away to the tribal area and was apprehended by the Shabqadar Police on 24‑7‑1987. Thereafter, he was brought to Lahore for trial. The case was initially investigated by Muhammad Shabbir, A.S.I, Police Station Lower Mall, Lahore but subsequently the investigation of it was entrusted to Ch. Ghulam Rasool. D.S.P. (HQ), Lahore. The said police officer appear to have sent four persons to the tribal area to meet Mst. Said Bibi, These four persons, it is reported, met Mst. Said Bibi, abductee, there and according to them she exonerated Bazi Khan. The said four persons further stated on the Holy Quran before the D.S.P that Mst. Said Bibi had told them that she had gone to Qadir Khar (a relative and co‑accused of Bazi Khan) of her own accord and had contracted marriage with him and she was now pregnant. The D.S.P accordingly, found Bazi Khan to be innocent.

4. Bazi Khan, who was challaned under section 11 of the Offenc, of Zina (Enforcement of Hudood) Ordinance 1979, applied for bail but the same was refused by the learned Sessions Judge. He then approached the High Court and the learned Judge in the High Court allowed bail to Bazi Khan observing:‑

5. "The case was lastly investigated by the D.S.P. Headquarters Lahore. In the zimni dated 15‑2‑1988 it has been stated the during the investigation it was found that the Nikah of Mst Said Bibi was performed on 7‑6‑1987 in .Ward No.23, Peshawar City, whereas the present case was registered on 9‑7‑1987. 1 will not be out of place to mention here that according t complainant's version the alleged abductee was unmarried when this occurrence took place. According to the aforesaid zimni dated 15‑2‑1988, Bazi Khan petitioner was found innocent during the investigation. The bail application moved by him in the Sessions Court was dismissed on 27‑1‑1988 when this ground was not available to him. The S.H.O. has been directed the D.S.P. to place his name in Column No.2 of the challan On inquiry, the Inspector states that amended challan is yet to be submitted in Court. In the circumstances, I feel inclined to the view that the case of the petitioner needs further inquiry. I, therefore, admit him to bail in the sum of Rs.1,00,000 (one lac) with two sureties in the like amount to the satisfaction of the trial Court."

6. The complainant, Asmatullah Khan (appellant herein) moved a petition for leave to appeal against the above order of the High Court and leave was granted on 14‑5‑1988 to consider inter‑alia the following questions:‑---

7. "It seems that the police report relied upon by the learned Judge was submitted without the examination of the abductee by the Investigating Officer. It is not known whether the respondent was not accused by her of other offences also in addition to abduction.

8. The opinion of the 'Police' in favour of the respondent, as it appears from the order of the learned Additional Sessions Judge was not accepted by the said Court. Hence prima facie it was not a case covered by subsection (2) of Section 497 Cr.P.C.

9. Although the expression used in the impugned judgment of the High Court is that it "needs further enquiry", yet no finding has been rendered with regard to the other conditions necessary to be fulfilled under subsection (2) of Section 497 Cr.P.C. in addition to the fact that the case needs further enquiry.

10. This Court time and again has emphasized that mere possibility of further enquiry 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."

11. Warrants for arrest were also ordered to be issued against respondent No.1 (Bazi Khan).

12. Bazi Khan having been arrested in pursuance of the above order, passed on 14th May, 1988, moved a miscellaneous application (Cr.Misc.No.64‑R of 1988) praying for bail during the pendency of the appeal. When this application came up for hearing before this Court it was directed that instead of hearing the miscellaneous application the appeal itself may be fixed for hearing on 6‑7‑1988. Accordingly, the appeal has been taken up today and the learned counsel for the parties heard.

13. The relevant provision of law governing the matter is subsection (2) of section 497 Cr.P.C. This provides:

14. "497. When bail may be taken in case of non7bailable offence.‑

15. (1).......................

(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".

16. The import of this provision has been explained by M.A.Zullah, J. in Ibrahim v. Hayat ? Gul and others (1985 S C M R 382) as follows:‑

17. "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."

18. It is true that the learned Judge in the High Court while granting bail has observed "I feel inclined to the view that the case of the petitioner needs further inquiry". But reading the order as a whole it is clear that both the Officer‑in‑charge of the investigation and the Court (in this case the High Court) appear to be of the view in the facts and circumstances of this case "that there are not reasonable grounds for believing that the accused has committed a non‑bailable offence but there are sufficient grounds for further inquiry into his guilt". Hence in this case the accused was entitled to be released on bail pending such inquiry.

19. The result is that the appeal filed by the complainant is dismissed and respondent No.1 (Bazi Khan) is released on bail on furnishing fresh bonds in terms of the order of the High Court dated 21‑2‑1988.

20. M.A.K./A‑314/S ???????????????????????????????????????????????????????????????????? Appeal dismissed.