MIAN DAD vs THE STATE and another

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---Leave to appeal was granted in this matter as follows:-- "The bail in this case was granted on the consideration that although the case was registered under section 302, P.P.C. As of murder, the F.I.R. Which is the basis of the prosecution case (so far) made it a case under section 304, Part I, P.P.C. For the reason that the accused/petitioner claimed to have acted on grave and sudden provocation. And thus, caused injuries to his wife as well as her paramour who, according to him, was caught red-handed on surprise visit to his own house. The F.I.R. Is also based on the statement of the accused to the above fact. The High Court on difference of opinion held that the offence in any case being also punishable with imprisonment for life the accused would not be entitled to bail.

2. ' Learned counsel has argued that it may be possible to hold that when a case is made out under section 304, Part 1, P.P.C., the offence being punishable with imprisonment for life bail is prohibited under subsection (1) of section 497, Cr.P.C. But, according to him while under subsection (1) of section 497, Cr.P.C. The Court has no jurisdiction to grant bail if on merits such a finding is rendered, as the word used for such command is "shall". But, he further argued the considerations when determining the question of "cancellation" are different because subsection (5) of section 497, Cr.P.C. Under which power is exercised, does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life and further even if the grant of bail is prohibited under subsection (1) of section 497, Cr.P.C. According to him the discretion left in the Court under subsection (5) of section 497, Cr.P.C. Is pari materia with the principles which apply to the setting aside of the orders of acquittal.

3. "The proposition advanced by the learned counsel has, prima facie, force and also support of the authorities of this Court."

4. ' During the hearing of the case it transpired that the challan having been submitted in Court the trial is going to commence. The learned Advocate-General has relied on Akmal Masih and others v.

5. Salamat Masih and 4 others 1988 SCMR 918 in support of the contention that this Court ordinarily does not consider it appropriate at the stage as in present case to interfere with the orders of the High Court relating to bail -- particularly in cases of murder. So far as it goes the contention raised by the learned Advocate-General has the support of the judgment cited by him.

6. ' After hearing both sides we do not consider it fit and proper in the circumstances of this case which would involve some discussion and remarks on the merits of the case, to decide them at this stage when the trial is going to commence. It might prejud ce either party. Accordingly, this appeal is dismissed.