NAJEEB GUL vs KHALID KHAN and another

' MUHAMMAD AFZAL ZULLAH, J.--This appeal is directed against order dated 28-2-1987 of the Peshawar High Court, whereby, the application for cancellation of to respondent No,1 in murder case, was dismissed.

2. No doubt there is some confusion as to how the name of the respondent (one amongst other accused) was omitted in the dying declaration, though the prosecution claims, he is mentioned as {{URDU TEXT}}. For purposes of bail, however, it was good reply that all the eye-witnesses, one of whom also got injured in the occurrence, named him specifically as an assailant. It is a daylight occurrence. First information Report shows that the deceased had no motive to falsely implicate anyone. Nor there is anything to suggest that the injured eyewitness or others had any enmity towards him.

3. The respondent also allegedly absconded for eight months. The High Court while observing that it might be due to the doubt his name, ignored the reference in the order of the learned Magistrate to issuance of search warrants and proclamation. In this background the appearance before the police could not be treated as voluntary without any further explanation.

4. Another aspect noticed by the High Court is that no empty of .12 bore gun was recovered from the relevant spot, despite the allegation that the respondent 'fired such a weapon. It hardly would furnish any ground for concession of bail in such case.

5. Unfortunately, it has been ignored that noticeable abscondence deprives an accused person of concession of hail unless he gets it as of right under subsection (2) of section 497, Criminal Procedure order the offence is bailable otherwise. The grant of bail as of right under section 197 (2) is possible only when a finding is rendered that "there are not reasonable grounds for believing that the accused has committed" the particular offence. When there is hesitation to record such a finding, one explanation might be that it is not possible. It is true that the higher Court might discover the material to sustain such a finding being recorded. Nevertheless, it would be more advisable, in order to show that the mind is applied to this aspect, to at least mention it. Without such a finding the remark that "it is a case for further inquiry" is least helpful. Who can deny that further inquiry is also possible rather necessary in all those cases, where bail is refused because of the prohibition contained in section 497(1), Cr.P.C.? The relevant context of further inquiry in section 497(2) is the existence of "reasonable grounds that the accused has not committed" the offence.

When a Court is not conscious or convinced of this aspect, mere further inquiry is of absolutely no avail to the accused for bail under section 497(2). Unfortunately, the Sessions Court and the learned Judge in the High Court have not understood the law in the right sense. The order of the learned Magistrate refusing hail was perfectly valid. The impugned orders suffer from serious infirmities and are, therefore, liable to he set aside. There is no alternative but to allow this appeal.

' We order accordingly.

' The to the respondent No,1, is cancelled. He shall be taken into custody in accordance with law.