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Criminal Bail Application No. 479 of 1981, decided on 26th January, 1982.

‑‑ S. 497‑Bail‑Petitioner, accused of offence under S, 307, P. P. C. and case pending trial in Court of Asstt, Sessions Judge riot competent to award more than seven year, imprisonment ---Case, held, would stand excluded from prohibitory limits imposed on bail by subsection (1) of S. 497, Cr. P, C., in circumstances.

Amir v. State 1973 P Cr. L J 205 rel.

Awan Aehmatullah, Nadeem for Applicant.

Agha Salfuddin, Bar‑at‑Law for the State.

Date of hearing : 26th January, 1982.

The applicant Hoti is facing trial under sections 148, 307 read with 149, P. P. C. and 13‑1), Arms Ordinance before the Asstt. Sessions Judge. Kandhkot, alongwith four others who have since been released on bail by the trial Court. While enlarging the co‑accused on bail, the learned trial Court distinguished the applicant's case on the ground that the Ere‑arm injuries found on the person of Jamal were caused by the applicant. The learned Judge therefore thought that he did not deserve to be released on bail.

It is of course true that the use of gun by the applicant was presum ably enough to saddle him with the intention of murder. But the question for consideration is whether the applicant had fired gun at Jamal in the alleged situation. First of all the motive attributed to the accused is too vague. All that is disclosed in the F. I. R. in this respect is that 2/3 months prior to the occurrence, a quarrel had taken place between the parties over exchange of cattle and they were not on talking terms since then. But the matter did not look so serious that accused would suddenly think of settling score with the complainant's party, without any immediate cause of provocation. The witnesses cited in support of the prosecution case are obviously interested. In the circumstances of the case, whether their interested evidence can form safe basis for conviction does call for further enquiry.

The next point stressed by the learned counsel for the appellant is that since the case has been shifted to the Asstt. Sessions Judge for trial, the maximum punishment that can be awarded to the accused will not exceed more than seven years' imprisonment and therefore in view of the decision of the Sind High Court in the Cr. Bail Application No. 560/80, the applicant is entitled to be released on bail. The said application was disposed by my learned brother, S. A. Nusrat, J. (as he then was). The portion of his order relevant for the purpose of this case may be reproduced as under:‑

"Mr. Usman Ghani, learned counsel for the applicant contended that notwithstanding the charge under section 457, P. P. C. since the case was pending trial in the Court of the F. C. M. the jurisdiction of that Court by virtue of section 38 was limited to award Imprisonment for a term not exceeding three years. This according to the learned counsel, would take the case out of the restriction contain ed in section 457, P. P. C. The learned Additional Advocate- General had no answer to this legal contention and I am also inclined to agree with this proposition of law."

My attention has also been drawn to the Lahore High Court case reported as 1973 P Cr. L J 205. In that case, his Lordship of the Lahore High Court, Mr. Justice Mohammad Afzal Zullah, took the view that while considering the question whether the case fell within the prohibition contained in sub‑section (1) of section 497, Cr. P. C., the Courts are not supposed to keep in view only the maximum sentence (of transportation of life) provided in the relevant law. According to the learned Judge if the Court is in a position to come to the conclusion on the date placed before it even at the bail stage that the prosecution case taken to its extreme would not entail the maximum punishment it would go out of the prohibition and then the Court would have the Jurisdiction to grant or refuse the bail in exercise of its discretion.

I fully share the views expressed in above two cases. In the instant cafe since the Court in which the case is now pending (i. e. Court of Asstt. Sessions Judge) is not competent to award more than seven years' imprisonment, the case would stand excluded from the prohibitory limits imposed on bail by subsection (1) of section 497, Cr. P. C.

For the above reasons the applicant is allowed bail on furnishing surety in the sum of Rs. 25,000 and P. R. of the same amount to the satisfaction of the trial Court.

Bail allowed.

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