MUHAMMAD SHAKIL vs SAKHI ZAMAN and 3 others

ORDER

' MUHAMMAD BASHIR JEHANGIRI, J.--This is a petition for leave to appeal against the order of the Peshawar High Court, D.I. Khan Bench, dated 2-3-1998 whereby the respondents were allowed bail pending trial in case F.I.R. No,78 registered under section 324/34, P.P.C. At Police Station Kaki, District Bannu on 14-3-1997.

2. Shorn of unnecessary details the facts of the case are that after refusal of concession of bail by the learned Special Judge under the Suppression of Terrorist Activities (Special Courts) Act, 1975 Bannu, the respondent approached the Peshawar High Court, Peshawar. There arose difference of opinion between the two learned Judges comprising the Division Bench on the question as to whether there appeared reasonable grounds for believing that the accused-respondents have been guilty of an offence punishable with imprisonment for 10 years or life. One of the learned Judges of the Peshawar High Court answered the question in the affirmative while the other learned Judge reached at a contrary conclusion. In consequence, the matter was referred to a learned third Judge who without assessment of the evidence extended the concession of bail to the accused-respondents on the reasoning which is as under:-- "in my humble opinion, the mere fact that the two learned Judges have arrived at different conclusion would automatically make the existence of reasonable grounds to connect the petitioners with the commission of the crime pretty doubtful. Accordingly the petitioners would be entitled to the benefit of doubt because they have successfully made out a case of further inquiry within the meaning of section 497(2), Cr.P.C. Entitling them to be released on bail."

3. Mr. Zafar Abbas Zaidi, learned Advocate Supreme Court for the petitioner-complainant contended that the learned Referee Judge instead of appraising tentatively the material collected by the prosecution against the accused-respondents for their involvement in the offence under section 324/34, P.P.C. Had gone wrong merely to take into consideration the difference of opinion between the learned Judges of the Division Bench of the High Court on the crucial question as to whether there appeared reasonable grounds for believing that the respondents had been guilty of an offence punishable with ten years' R.I. Or life imprisonment.

4. Mr. Muhammad Arif, learned Advocate Supreme Court, appearing for accused-respondents Nos.1 to 3 had attempted to defend the impugned order on the merits of the case.

5. After hearing the learned counsel for the parties, leave to appeal is granted to consider, inter alia, the question whether difference of opinion between the learned Judges of the Division Bench in the High Court on the question as to whether, there appear reasonable grounds for believing that the accused-respondents have been guilty of an offence punishable with rigorous imprisonment for ten years or with life imprisonment is tantamount to "further inquiry" within the contemplation of section 497(2), Cr.P.C.