ARBAB ALI vs KHAMISO And Other

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.-- This is a petition for leave to appeal from the Order, dated 12-8- 1984 of the Sind High Court; whereby the respondents Nos.1 and 2 were allowed bail in a case under section 307 , read with section 34, P . P . C .

2. The brief facts noted in the impugned order are that both the respondents allegedly made murderous assault (alongwith to unknown persons) on the petitioner Arbab Ali during night between 20th and 21st of June, 1984, and caused him injuries by means of hatchets and lathis. The said to respondents had allegedly used hatchets while the unknown persons were assigned the part of causing injuries by means of lathis. The doctor on medical examination observed five injuries on the victims out of which to were incised wounds, to lacerated wounds and one swelling.

3. After radiological examination to of these injuries one by sharp-edged weapon and the other by a blunt weapon, were declared grievous in nature. The grievous sharp-edged weapon injury was found on the nose of the victim.

4. Various arguments were raised before the High Court including that "the medical evidence does not support the allegations that the assailants had intention of causing death of the deceased and that the grievous injuries found on the complainant does not stand attributed to the accused applicants". The position taken by the learned Assistant Advocate-General was also noted. It is to the effect that although according to the F.I.R. Both the accused applicants had given hatchet blows to the complainant with their sharp side but the medical evidence shows that he had sustained only one injury caused by means of a sharp cutting weapon. On this the learned Judge in the High Court made the following observation and allowed bail to the respondents: "It appears from the medical certificate that the injuries attributed to the applicants, alleged to have been caused on head of the complainant, were not grievous in nature. The injuries of the complainant which have been classified to be grievous, were caused on his nose and left forearm.

5. It is, accordingly, a case for further inquiry for determining the nature of the offence committed by the applicants."

6. The learned counsel has in order to support his contention that it was a case under section 307 and in any case under section 326 and as both the offences are punishable with imprisonment for life the reason given for allowing bail to the respondents is unsustainable, relied on the following particulars in the medical certificate: "(1)Incised wound 10 c.m. x 3 c.m. x 1.5 . c.m. On left side of parietal region of scalp.

7. (2)Lacerated wound 3 c.m. x 2 c.m. x 1 c.m. On left side of occipital region of scalp.

8. (3)Lacerated wound 3.5 c.m. x 1.5 c.m.- x I c.m. On frontal area of scalp.

9. (4)Incised wound 3 c.m. x 1 c.m. x 1 c .m. On root of nose (transversely).

10. (5)Swelling 5 c.m. Is 5 c.m. On interior aspect of distal one-third of left forearm Note:- The injured has been referred for X-Rays. The nature of all the above injuries will be communicated after the receipt of X-Rays.

11. L. Nature of injuries. Reserved for X-Ray.

12. (Simple, grievous or dangerous). probable duration of injured.

13. The kind of weapon used or poison Injuries 1 and 4 are caused by suspected in case of poisoning. SHARP CUTTING WEAPON.

14. Injuries Nos. 2, 3 and 5 are cussed by HARD BLUNT SUB--STANCE."

15. It is clear that the learned Judge was not correctly informed about the particulars and nature of the injuries found by the doctor on the body of the victim. Thus for that reason it appears to be a simple case of genuine mistake. The injury No. 4 which is 3 x 1 x 1 c.m. Is on the root of the nose and caused by a sharp-cutting weapon. The other injury with sharp-edged weapon is on the left side of head (partietal region). This incised wound is 10 x 3 x 1.5 c.m. Even if one of these injuries is grievous it would make a case at least under section 326/34, P.P.C. Therefore no further inquiry was needed in this behalf. Be that as it may there is no mention in the impugned order as to why injury No.1 which was with a sharp-edged weapon and appears to be a substantial wound, could not be treated as one which would have endangered life. Nor it has been mentioned that, even if it is a simple injury, section 307 would not be attracted on account of the nature and location of this injury.

16. There are certain other features also in this case, which have not been attended in the High Court before giving a verdict that was a case of "further inquiry". It needs to be clarified that bail ca be allowed (in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 467) under subsection (2) o section 487, Cr.P.C. When there are sufficient grounds, for further inquiry into the guilt of the accused but only on the condition when the Police Officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a non-Bailable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds f further inquiry. This aspect of the relevant law has also not bee brought to the notice of the learned Judge of the High Court.

17. It is not the normal practice of this Court to interfere with the orders in bail matters passed by the Nigh Court, even in cases falling within the prohibition contained in subsection (1) of section 487.

18. Cr.P.C. However in cases of grave injustice or clear departure from law, this Court interferes with such an order or leaves the complainant party to the remedy provided by law under subsection (5) of section 487, Cr.P.C. In the circumstances of this case we do not consider it just and proper to grant leave to appeal and instead consider it a fit case where the petitioner should move the High Court under subsection (5) of section 487, Cr.P.C., for the cancellation of bail.

19. With these observations this petition is dismissed.