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‑‑S. 497 (1) & (2)‑Bail, grant of‑Provisions of S. 497 (2), held, entitled accused person charged of a non‑bailable offence to a bail. if it appeared to officer‑in‑charge of police station or to Court that there were no reasonable grounds for believing that accused had committed a non‑bailable offence, but there were sufficient grounds for further inquiry into his guilt.

(b) Criminal Procedure Code (V of 1898)‑

‑‑S. 497 (2)‑Bail, grant of‑Court, even at bail stage, was to sift evidence on record tentatively in order to arrive at a tentative finding whether case fell under subsection (1) of S. 497, Criminal Procedure Code, 1898.

Muhammad Sadiq v. Sadiq and others P L D 1985 S C 10 Ibrahim v. Hayat Gul and another 1985 S C M R 382 ; The State v. Aziz alias Abdul Aziz P L D 1985 Kar. 27 ; Babar Rashid v. The State P L D 1985 Lab. 288 ; Nawah Khan and another v, The State P L D 1985 Lab. 211 ; Noor Ahmad and another v. The State P L D 1985 Lah. 414 ; Nazir Ahmad v. Latif Hussain and 3 others P‑L D 1974 Lab 476 ; Ziaul Hassan v. The State P L D 1984 S C 192 ; Ch. Abdul Malik v. The Sate P L D 1968 S C 349 ; Khalid Saigol v, The .Stale P L D 1962 S C 495 ; Khalid Javed Gillan v. he State P L D 1978 S C 256 ; Piaro v. The State and another 1984 P Cr. L J 149 ; Nasai v. The State 1984 P Cr. L J 2541 and' Muhammad Shard' v. The State 1984 P Cr. L J 1191 ref.

(c) Criminal Procedure Code (V of 1898)‑

‑‑ S. 497(5)‑Bail, cancellation of ‑Once an accused person is admitted to bail by a competent Court, High Court would be slow in interfering with discretion exercised by bail granting Court in case order can be sustained on basis of material on record.

(d) Criminal Procedure Code (V of 1898)‑

‑‑ S 497 (5)‑Bail‑Application for cancellation‑Prior enmity existing between complainant party and accused party‑Complainant party alleging conspiracy on part of accused and his two younger brothers to kill deceased but allegation of conspiracy prima‑facie not fitting in circumstances of case and material on record‑Statement of complainant, only incriminating material on record against accused and statement of a prosecution witness, which was recorded after more than three weeks from date of incident, attributing to accused that he had ordered his elder brother to fire upon deceased but name of said witness not mentioned in first information report and he was not referred to by any witness‑Implicit reliance could not, therefore, be placed on statement of complainants‑Complainant unable to point out any act or omission on part of accused which would justify refusal of bail to him‑No material placed to indicate that accused abused concession of bail granted to him by Sessions Judge‑Com plainant party also unable to cite any concrete example whereby it might be inferred that police was partisan or had not investigated case properly‑Police record showing that there was nothing irregular in investigation ‑ Operative portion of order of Sessions Judge, granting bail, in relation to compliance of subsection (2) of S. 497, although not couched in words as to conform to terms of subsec tion (2) of S. 497, yet taking into consideration statement of prosecu tion witness, whose statement was recorded by police after three weeks of incident, whereby overt act was attributed to accused, and for good reasons not relying upon same ‑Perusal of entire material on record of investigating agency as also material placed by parties counsel before Court showing no reasonable grounds for believing that accused had committed a non‑bailable offence sufficient grounds on other hand existing for further inquiry about his guilt as to entitle him to nail under subsection (2) of S. 497, Criminal Procedure Code, 1:898‑Application for cancellation of bail dismissed in circumstances.

(e) Criminal Procedure Code (V of 1898)‑

‑‑‑S. 497‑Bail‑Motive alone, held; would not disentitle accused to bail if, on basis of material on record, there did not appear any reasonable ground for believing that he had committed offence Motive at same time also provides a reason to complainant party to rope in more than one Member of accused party. ‑ [Motive].

Yahya Bakhtiar, Iftikhar Muhammad and Khalid Malik for Appellant.

Muhammad Aslam Chishti and Shakeel Ahmed for Respondent.

Amirul Mulk Mengal, A.‑G. for Respondent No. 2.

Dates of hearing :17th, 18th and 19th August, 1985.

JUDGMENT

This is an application under subsection (5) of section 497, Cr. P. C. filed by the applicant Dr. Behram Khan, brother of deceased Muhammad Sadiq son of Malik Taj Mir Khan, for the cancellation of bail of respondent No. 1 Naseer Ahmed arms Bacha Khan son of late Barat Khan, caste Achakzai, M. P. A. resident of Chaman, granted by the learned Sessions Judge. Quetta by his order, dated 22nd July, 1985. The brief facts leading, to the filing of the above application are that on 25th June, 1985 at 9‑25 p. m. Basher Ahmad son of Ha 6 Habibullah Khan, caste Achakzai, resident of Murda Karez Road, Chaman lodged F.I.R. with the Police Station, Chaman. which was recorded by the S. H. O. Muhammad Jan, under section 302/109, P. P. C. against the respondent No.1 and his three brothers stating as follows :‑

Upon lodging of the above report, the S.H.O, visited the place of incident and sent the dead body of the deceased Muhammad Sadiq for post‑mortem to the Civil Hospital, Chaman. He recorded the statements of Bashir Ahmed son of Haji Habibullah Khan, the complainant. Manzoor Ahmed son of Haji Habibullab Khan, Sher Muhammad son of Muhammad Raheem and Ubedullah sod of Haji Abdul Zahir on the same night. On the same day, at' midnight, he arrested the respondent No. I from his house in Chaman. On the following day, he prepared the 'Mushirnama' of the recoveries of the blood‑stained earth of the place of incident, blood‑stained shirt of the deceased, blood‑stained bullets and also recorded the statement of the ' Mashers'. He also got the sketch prepared by the Patwar, of the place of incident. On 26th June, 1985. he also obtaiced remand of the respondent No. 1 for five days from the Assistant Commissioner/S.D.M., Chaman. On 3rd July, 1985, he sent three sealed parcels of the recovery for transmitting to the Chemical Analyser. On 11th July, 1985, be obtained search‑warrants of the respondent No. 1's house for arresting the respondent No. 1's three brothers, who were absconding, but in spite of the search carried out, be was unable to arrest them. On 15th July, 1985, he recorded 161 statements of three more witnesses, namely. Allauddin son of Lala Khan caste Ashezai, Zafrullah son of Taj Muhammad, caste Hameedzai and Jalaluddin son of Hai, Muhammad Khan.. On the following day, i.e. 16th July, 1985, he recorded 161 statement of Abdul Ali son of Haji Abdur Raheem, a close relation of the applicant.

It seems that the respondent No. 1 on the expiry of the above five days police remand on 30th June, 1985, by an order of the Assistant Commissioner, S.D.M., Chaman was shifted to the judicial custody. He moved an application for bail before the learned Sessions Judge, Quetta on 8th July, 1985. He had come up for hearing on 14th July, 1985 when it was submitted by the two counsel for the complainant party and the District Attorney that the Police papers were not available. Thereupon, the case was adjourned to 20th July, 1985. However, the learned counsel for the respondent No. 1 found that factually the Investiga ting Officer was seating in the office of the District Attorney with the relevant Police papers. H e, therefore, requested the learned Sessions Judge to heat the bail application. The same was ante‑dated for 15th June, 1985. It is the case of the respondent No. 1 that on the latter date, at the request of the District Attorney, the case was adjourned to 20th July, 1985. The learned Sessions Judge, Quetta after hearing the learned counsel for the parties by his above order, dated 22nd July, 1985 had admitted the respondent No. 1 to bail on the condition that if subsequently, the material evidence is collected against the accused /respondent No. 1, the prosecution can move for cancellation. The operative portion of the order reads as follows .

"Considering all the arguments of the Advocates for the parties and of the District Attorney, I find that there is solitary evidence of P.W. Abdul Ali, whose evidence has been attached by the defence Advocate on a number of grounds. I refrain from making any comments regarding the evidence of P. W. Abdul Ali. The case is still under inv estigation and as such I find that it is a case of further inquiry. As such I find that the accused/applicant is entitled to bail. To safe guard t he interest of the prosecution, the accused/applicant is ordered to be released on bail after furnishing two sureties in the sum of Rs. 50,000 each with P. R. bonds in the like amount.

The prosecution can move for the cancellation of the bail of the accused, if subsequently material evidence is collected against the accused/applicant ."

The applicant has, therefore, filed tae present application.

2. In support of the above application, Mr. Yahya Bakhtiar, learned counsel for the applicant assisted by Messrs Khalid Malik and Iftikhar Muhammad, Advocates has urged as follows :‑‑

(i) that on the basis of ,the material on record, the learned Sessions Judge could not halve pressed into service subsection (2) of section 497, Cr. P'. C.

(ii) that even otherwrise the requirements of above subsection (2) of section 497, Cr. P'. C. have not been complied with, and

(iii) that the police has not investigated the case properly because the respondent No. 1 being M.P.A. has considerable influence.

3. Mr. Amirul Mulk Mengal, learned Advocate‑General appearing for the State has adopted the arguments of Mr. Yahya Bakhtiar. Advocate subject to his submission that the allegation of the applicant that the Police has not investigated the case properly or is not taking proper interest because of the influence of the respondent No. 1, is untrue.

Mr. Muhammad Aslam Chishti, learned counsel for respondent No. 1 has submitted as under :‑

(i) that the learned Sessions Judge was justified in pressing into service subsection (2) of section 497, Cr. P. C. on the‑basis bf the material available;

(ii) that the learned Sessions Judge has substantially complied with the‑requirements of subsection (2) of section 497 , Cr. P. C. ; and

(iii) that the allegation of the applicant that the Police has not inves tigated the case properly, is incorrect.

4. Before going into the details of the above submissions, it may be pertinent to reproduce the relevant portion pf subsection (1) and subsec tion (2) of section 497, Cr. P. C. which reads as follows/':‑

"497 (1) When any person accused of any nod‑bailable offence is arrested or detained without warrant by an officer‑in‑charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. .

Provided .. released on bail.

Provided further .

not be so released.

Provided further ..

shall be released on bail.

(a) who being .. has not concluded ; or

(b)who, being

offence has not concluded.

(2) If it appears to such officer or Court at any stage of the investiga tion, inquiry or trial, as the case may be that there are no reasonable grounds for believing that the accused has committed a non‑bailable offence, but that there are sufficient grounds for further inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail, or at the discretion of such officer o Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided." '

A perusal of the above‑quoted relevant portion of subsection (1). of section 497. Cr. P. C. indicates that when any person accused of any non bailable offence is arrested or detained without warrant by an officer‑in charge of a police station or is brought before a Court, he may be released on bail, but he shall not he released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, whereas subsec tion (2) of the above section provides that where it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be (i) that there are no reasonable grounds for believing that the accused has committed a non‑bailable offence, but (ii) there are sufficient grounds for further inquiry into his guilt ; in such event, the accused shall pending such inquiry, be released on bail at the discretion of the officer‑in charge or the Court on execution by him a bond without sureties for his appearance.

It is, therefore, evident that whereas subsection (1) prohibits the grant of bail to a person accused of any non‑bailable offence if there appear reasonable grounds for believing that be is guilty of the offence, whereas. subsection (2) entitles an accused person charged of a non‑bailable offence to a bail if it appears to the officer‑in‑charge of the police station or to the Court that there are no reasonable ground for believing that the accuse: has committed a non‑bailable offence, but there are sufficient ground for further inquiry into his guilt.

5. The moot question in the instant case, therefore, is as to whether the above subsection (1) of section 497, Cr. P. C. was attracted to the facts of case or whether subsection (2) of the above section has been properly pressed into service by the learned Sessions Judge.

In order to arrive at the correct conclusion it will be necessary to refer to the material on record. It comprises of the police statements of the above witnesses referred to hereinabove. The complainant Bashir Ahmed and Manzoor Ahmed were with the deceased at the time of the incident. Both have stated that they were going with the deceased at 8‑15 p. m. on Taj Read towards the hospital and on the way while Noorul Haq was embracing Muhammad Sadiq at the street of Peromal Road, a silver gray car having Monogram of M.P.A. from the north side of Peromal Road came into Taj Road and hit Muhammad Sadiq and Noorul Haq who fell down on the ground. Thereupon, Manzoor Ahmed, remarked that "KOI INSANIAT BI HAI-KYON TAKKAR MARI . After that the deceased Muhammad Sadiq went to the side of the person driving the car and inquired " KYON TAKKAR MARI " Thereupon, Jamal Nasir, the elder brother of the respondent No. I who was driving the car, all of a sudden, took out white colour revolver and fired two shots, one of which was hit at the chest of the deceased resulting into his death. Both have stated that the respondent No.. 1 alongwith two younger brothers was sitting on the back seat of the car. None of the above two witnesses has attributed any overt act on the part of the respondent No. 1. However, Bashir has repeated the allegation of conspiracy by stating that;

The other three eye‑witnesses i. e. Noorul Haq, Ubedullah and Sher Muhammad, whose statements were also recorded on the day of incident, describe the occurrence in more or less in the' identical terms. but .without stating that the respondent No. I was present on the back seat of the car. Noorul Haq, Ubedullah have stated that after offering their ' Asar' prayer at the shop of Muhammad Akbar a local Councillor, they were going towards the Trench Road alongwith Muhammad Saleem. When they were passing by the side of the bungalow of the respondent No. 1, he greeted them. Thereafter, all the three, went inside the Bungalow where they offered 'Maghrib' prayer. They were entertained with soft drink. After that they got up and went from the side of Peromal Road to Taj Road, where the aforesaid incident had occurred in the manner already stated hereinabove. Whereas, Sher Muhammad has stated that he was about 15‑16 paces from the place of incident. The other three witnesses, namely, Allauddin, Zafrullab and Jalaluddin whose police statements were recorded after 3 weeks on 15th July, 1985, have also not in any way attributed any overt act to the respondent No. 1. Messrs Allauddin and Jalaluddin have stated that when they reached at the crossing of Peromal Road, they heard shots and they saw a grey car with the monogram of M. P. A. coming out from Peromal Road into Taj Road. They were told by Zafrullah that the deceased was shot by Jamal Nasir. Zafrullah has stated that he on 25‑6‑1985 at 8‑45 p. m., Sadiq and Manzoor at the shop of the Ice Cream at Peromal Road were having soft drink (Jim), grey car' which was driven by Jamal Nasir and in which the respondent No. I and his two other brothers were sitting. hit Noorul Haq and Muhammad Sadiq, resulting into their falling down on the ground. Thereupon, Sadiq went to the side of the driver and asked, why it was done, thereupon, Jamal Nasir fired two shots resulting into his death. However, Abdul Ali whose statement was recorded as stated hereinabove on 16th July, 1985 and who is a close relation of the applicant has attributed to the respondent No. 1 that he had ordered Jamal Nasir to fire upon the deceased.

6. The learned Sessions Judge for the time being has not believed the above statement. It is an admitted position that the name of the above witness namely, Abdul Ali son of Haji Abdur Rehman was not mentioned in the F.I.R., nor he has been referred to by any of the above witnesses. It has, therefore. been contended by Mr. Aslam Chishti, Advocate that the complainant party and the District Attorney obtained adjournment on 15th July, 1985 in the bail application and got the above statement of witness Abdul Ali recorded on 16th July, 1985. Without expressing definitely on the above point, it will suffice to observe that the above contention is not devoid of force.

In addition to the, above material in the investigation record Mr. Yahya Bakhtiar has placed on record on 17th August, 1985, a copy of Jamal Nasir's application, dated 2nd July, 1983 filed by him before the Assistant Commis sion, r suspecting, inter alia, the applicant for the murder of his father, which was committed on 19th June 1983 and his statement before the Crime Branch. dated 9th August, 1983,‑Inter alia suspecting the applicant as one of the murderers. He has also filed copy of Additional Commissioner's order dated 10th August, 1983 confirming the bail granted to the applicant in connection with the above murder of respondent No. 1's father. In reply to the same, Mr. Aslam Chishti, learned counsel for the respondent No. 1 had placed on record Abdul Halim's 164 statement recorded on 19th', February, 1984 showing himself as an eye‑witness of the murder of respon dent No 1's father and implicating four persons Amanullah, Haji Saeed Muhammad alias Saidko, Saifullah and Barat Khan, the High Court order,' dated 1 7th November, 1984 passed on the application filed by Jamal Nasir for the cancellation of the bail of the above four persons. It was, there fore. contended by Mr. Aslam Chishti, Advocate that after 164 statement of Abdul Halim. the respondent No. 1's elder brother Jamal Nasir had not moved any application for the cancellation of the bail against the applicant as is evident from the above High Court order, dated 17th November, 1984 and, therefore, the statement of the respondent No. 1 in his bail application that be had no motive to commit murder of the applicants's brother, was justified,: whereas, Mr. Yahya Bakhtiar, learned counsel for the applicant has placed on record today a copy of order, dated 27th March, 1984 passed in Constitutional Petition No. 41 of 1984 by the Baluchistan High Court filed by Muhammad Anwar son of Taj Muhammad against six private per sons including the respondent No.1's elder brother Jamal Nasir for the abduction of the petitioner's brother, the statement of the abductee Raz Muhammad, dated 15th May, 1984 and certain other statements to indicate that even after the above 164 statement of Abdul Halim, the respondent No.1's brother attempted to rope in the applicant in the murder case by coercing the witness to implicate him. He has also placed a copy of the complaint under sections 171 and 118 filed by Abdul Halim in the Court of Assistant Commissioner/Magistrate First Class, Chaman against eight persons including the respondent No. 1 and his brothers for illegally detaining him and getting his thumb‑impression on some statement.

It will suffice to observe that at the most, on 'the basis of the above material it can be urged that there was prior enmity between the complainant party and the accused party.

7. The question which requires consideration is as to whether there is material on record to indicate, prima facie, that on the day of incident, the respondent No. 1 had conspired with his elder brother Jamal Nasir and his two younger brothers for the commission of the offence.

Before dealing with the above question, it may be pertinent to refer to the latest pronouncement of the Honourable Supreme Court on the cons truction of subsection (2) of section 497, Cr. P. C. in the case of Muhammad Sadiq v. Sadiq and others (PLD1985SC182), which has been relied upon by Mr. Yahya Bakhtiar, learned counsel for the applicant. The relevant observations of which at pages 188 and 190 are as follows :‑

"As regards the first question whether the term further inquiry' has been correctly construed by the learned Judge in the High Court is concern ed, we note that according to him 'ordinarily' bail is not allowed in a murder case especially in the case when the allegations against the person mentioned in the F. 1. R., if left unrebutted render him liable to a sentence of death or transportation for life. However, if the allegations against a person require further enquiry to connect him with the commission of the offence as in the present case, bail is to be allowed to such a person."

This enunciation of the law, evidently is not in accord with the interpretation of this phrase given by this Court in the aforementioned case of Ibrahim v. Hayat Gul and another (Cr. Appeal No. 16‑P of 1984) 1985 S C M R 3b2. Herein, as it has been seen, it is observed that bail under subsec tion (2) of section 497, Cr. P. C. is to be allowed only if the prior condition is fulfilled, namely. that the officer‑in‑charge of the Police Station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that there are no reasonable grounds for believing that the accused has com mitted a non‑bailable offence' and the 'further inquiry', that is necessary, is only with respect to the question whether there are sufficient grounds for believing that the accused has committed a non‑bailable offence. Thus, the view taken by the learned Single Judge on this question that bail will not be allowed in a case when the allegations against the person mentioned in the F. I. R. it left unrebutted, render him liable to be sentenced to death but neverthe less may be allowed bail if further inquiry is necessary to connect him with the commission of the offence cannot he accepted as correct. As pointed out already, bail is to be allowed only Where no reason able grounds exist for believing that the accused has committed a non‑bailable offence, but there are sufficient grounds for further inquiry into his guilt. Normally, if reasonable grounds exist for believing that the accused has not committed a non‑bailable offence he should not be tried at all for having committed any such offence. But if, however, sufficient grounds for further inquiry into his guilt exist there would then be some justification for putting him an trial for the offence for which he is charged but in such an eventuality the law entitled him to bail during the pendency of the trial, subject,, of course, to cancellation of bail under section 497 (5). Cr. P. C. on availability of the evidence or other sufficient cause

"Coming to the contention that the learned Judge in the High Court has not properly construed the provisions of ,subsection (2) of section 49'x, Cr. P. C. which is evident from a perusal of this Court's recent judgment in Ibrahim v. Hayat Gul and another (Cr. Appeal No. 16‑P of 19841 suffice it to say that a perusal of the judgments relied upon by the learned counsel for the respondent and some other judgments delivered on the subject shows that Courts while allowing bail under section 497(2), Cr. P. C. have not been pleased to use such language as may exactly conform with the terms of subsection (21 of section 497, Cr. P. C. But a careful perusal of these judgments also reveals that bail was allowed only in those cases where the prior con dition, namely, that on consideration %of the entire material there was no reasonable grounds for believing that the accused had com mitted a non‑bailable offence was fulfilled, but further inquiry into his guilt was still necessary. Thus, in determining whether the power under section 497(2), Cr. P. C. has been exercised properly or not by a Court it will be the substance rather than the form in which the order is couched that will have to be seen.

In the present case. the impugned order of the learned Judge, read as a whole. shows that he was satisfied that there were reasonable grounds for believing that the accused had not committed a non bailable offence, but further inquiry into his guilt was still necessary. Hence, his order cannot be held to be bad on the ground that the phrase further inquiry' occurring in subsection (2) of section 497, Cr. P. C. has not been correctly construed by him, though it would have been preferable if he had employed the correct formulation for expressing his intention. We would expect that in future the learned Courts dealing with this question shall conform to the terms of the law on the subject more accurately in the light of the observations made in this judgment."

In view of the above pronouncement of the Honourable Supreme Court, I will have to examine the impugned order from the angle whether there has been compliance of the requirements of subsection (2) of section 497 as laid down by their Lordships.

8. In the above judgment, the Honourable Supreme Court has relied upon the case of lbrahim v. Hayat Gul and another (1985 S C M R 382), which the fonourable Supreme Court has pointed out that section 497. Cr. P. C. does not leave it to the discretion of the Court to withhold bail to a person accused of a non- bailable offence, if he fulfilled the requirements of its subsection (2). It was also pointed out that the above section cannot be pressed into Service unless on the basis of the material, the Incharge Police Officer or the Court taking cognizance of the matter comes to a definite conclusion that "them' are no reasonable grounds for believing that the accused has committed a non‑bailable offence".

9. Mr. Yahya Bakhtiar, learned counsel for the applicant has also referred to the following cases :‑

(i) The State v. Aziz alias Abdul Aziz P L D 1985 Kar. 27, to which a D. B. of the Sind High Court has taken the same view as to the construction of subsection (2) of section 497, Cr. P. C. which had found favour with the learned Judges of the Honourable Supreme Court in the above two cited cases.

(ii) Babar Rashid v. The State P L D 1985 Lab. 288. ' In the above case, a learned Single Judge of the Lahore High Court has held that the Court while considering a bail application is bound to apply the principles of law laid down by the superior Courts and should take into consideration all the relevant and important facts of the case. It was further held that the expression further inquiry' employed in subsection (2) of section 497, Cr.P.C. is to be construed with reference to the context especially in a murder case.

(iii) Nawab Khan and another v. The State f,' L D 1985 Lah. 211, in which, a learned Single Judge of the Lahore High Court has held that bail in a murder case cannot be granted on labourer: pretext, such as, concept of further inquiry, ineffective firing and divisibility of evidence. It was further held that the High Court in bail matters should not pre‑empt or usurp jurisdiction vesting in the trial Court .to give considered findings after appraisal of evidence.

(iv) Noor Ahmad and another v. The State P L D 1985 Lah: 414. In the above case, it was held by the learned Single Judge of the Lahore High Court that an accused person applying for bail before arrest must come with clean hands and must throw himself completely at the mercy of the Court. It was further held that the absence of the accused from the trial Court on the pretext that they were likely to he apprehended by the Police persons outside the said Court, was a lame excuse and that a accused were not entitled to bail in a murder case..,,,"

(v) Nazir Ahmad v. Latif Hussain and 3 others P L D 1974 Lah. 476, in which, a learned Single Judge of the Lahore High Court cancelled the bail, inter aria, on the ground that the bail before arrest was granted even without referring to the material on record. The accused was charged of assaulting a woman and obtaining her photograph in naked condition on the point of knife.

(vi) Ziaul Hassain v. The State P L D 1984 S C 192. In the above case, the Honourable Supreme Court declined leave to appeal against an order of a learned Single Judge of the High Court cancelling the bail before arrest granted to a Police Head Constable. The distinc tion between the bail before arrest and after arrest has been highlight ed in the above case. It was held that the High Court was justified in cancelling the bail when no mala fide was alleged by the accused on tile part of the prosecution.

On the other hand, Mr. Aslam Chishti, learned counsel for the respon dent No. 1 has relied upon, the following cases :‑

(i) Ch. Addul Malik v. The State P L D 1968 S C 349, in which, the Honourable Supreme Court was pleased to observe, inter alia that the bail should never be withheld as a punishment and that in cases of non‑bailable offences, the grant of sail is a relief resting primarily in the discretion of the Court to be exercised with due care and caution as a fundamental incident of exercise of judicial power taking into account the facts and circumstances of each case.

(ii) Khalid Saigol v. The State P L D 1962 S C 495. In the above case, the Honourable Supreme Court was pleased to hold upon cons truing subsection (1) of section 497, Cr. P. C. that while considering a bail application, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence, but nevertheless, it is necessary part of its function to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded that the accused committed offence punishable with death or imprisonment for life. It was further held that to form the above belief Court is to look at the material placed before it by the Investigating Agency and be, prima facie, satisfied that some tangible evidence can be offered which, if left unrebutted. may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists in terms of subsection (1) of section 497, Cr. P. C.

(iii) Khalid Javed Gillan v. The State P L D 1978 S C 256, in which the Honourable Supreme Court while granting bail to the applicant who was charged under section 302, P. P. C. held that bail either be allowed or to be rejected on the basis of evidence produced by the parties and the Court is bound to make tentative assessment of its evidentiary value. It was also pointed out that tentative sifting of evidence at the above stage is altogether different from elaborate sifting of evidence at the regular hearing.

(iv) Piaro v. The State and another 1984 P Cr. L 1 149. In the above case. it has been held by a learned Single Judge of the Sind High Court that the concession of bail ranted by the trial Court should not be withdrawn unless it is misuse by the accused.

(v) Nasar v. The State 1984 P Cr. L J 2541, in which, it was held by a learned Single Judge of the Lahore High Court that the accused who was attributed role of raising 'Lalkara' at the time of incident in a case under section 307. P. P. C. and no other overt act was attributed to him, was entitled to bail.

(vi) Muhammad Sharif . v. The State 1984 P Cr. L J 1911. In the above case, a learned Single Judge of the Lahore High Court dismissed the application for cancellation of bail and held that a person once enlarged on bail by the order of a competent Court, a valuable right accrue to him and the 'bail cannot be cancelled on the basis of bald allegations involving suborning of witnesses or holding out threats.

10. From the above‑cited cases, it is evident that even at the bail stage, the Court is to sift the evidence on record tentatively in order to arrive at a tentative finding whether the case, falls under, subsection (1) of section 497, Cr. P. C. which prohibits the grant of bail as pointed out hereinabove when there appear reasonable grounds for believing that the person ac used of any non‑bailable offence has been guilty of it or whether it falls under subsection (2) of the above section for forming the opinion, whether there are no reasonable grounds for believing that the accused has committed a non‑bailable offence, but that there are sufficient grounds for further inquiry into the guilt of the accused. It is also evident that once an accused person is admitted to bail by a competent Court, the High Court will be slow in interfering with the discretion exercised by the granting Court in case the order can be sustained on the basis of the material on record.

11. The case of the complainant party is that Jamal Nasir, the respondent No. 1 and their two younger brothers conspired to kill the applicant's younger brother Muhammad Sadiq, who had come from Karachi where he was studying in the N. E. D. Engineering University and D for that object, they came in the car together which was driven by Jamal Nasir. He first attempted to run over the deceased and thereafter fired upon the deceased. The above allegation of conspiracy does not, prima facie, fit in the circumstances of the case and the material on record for the following reasons :‑

(i) From the sketch of the place of 'Vardat' which is available in the police record, it is evident that the incident had taken place on the turning from the Peromal Road into Taj Road where Noorul Haq was embracing the deceased Muhammad Sadiq.

(ii) That though the car bad pushed Noorul Haq and Muhammad Sadiq, with the result, they fell down on the ground but they had not received any injury which is evident from the fact that in the post mortem report only one injury on account of fire‑arm at the chest of the deceased, is mentioned and no other injury. This is also corroborated by the fact that Noorul Haq had run away according to his statement and though he was examined by the Investigating Officer on the following day of the incident, but no injury was found. Additionally. Muhammad Sadiq went towards the side of the driver and made the aforesaid remark.

(iii) That though Muhammad Sadiq and Noorul Haq had fallen on the ground, they were not crashed under the wheels, but the car was halted.'

(iv) That Jamal Nasir did not fire upon Muhammad Sadiq immediately upon geeing him, but according to the above witnesses, he whipped out the revolver when Muhammad Sadiq went to his side and, asked, why he had done that.

(v) That the respondent No. 1 had no motive to run over Noorul Haq, who was entertained by him alongwith his two friends with soft drink at his house about half an hour before the incident.

(vi) That the respondent No. I and his brothers could not have known that at 8‑15 p. m. Sadiq would be coming alongwith his friends on Taj Road towards the hospital side.

(vii) That the murder of respondent No. I's father had taken place on 19th June, 1983, there was no immediate cause for the respondent No. 1 to have conspired with his brothers on the fateful day after the expiry of nearly two years to kill the deceased Muhammad Sadiq, who was not even suspected as an accused by Jamal Nasir.

In nutshell, the only incriminating material on record against the respondent No. 1 is the bare statement of the complainant Bashir referred to hereinabove in para. 5, namely,

and the statement of ‑ Abdul Ali recorded after more than three weeks from the date of incident attributing to respondent No. 1 that he had ordered his elder brother to fire upon the deceased.

12. It has already been pointed out hereinabove that his name was not mentioned in the F. I. R. He was not referred to by any of the P witnesses and his statement was recorded after more than three weeks from the date of incident by the Police and, therefore, at this stage, no implicit reliance can be placed' on his statement.

13. Mr. Yahya Bakhtiar, learned counsel for the applicant has vehe mently contended that inter alia, for the following reasons the respondent No. 1 should not have been granted bail by the learned Sessions Judge :‑

(i) that there was strong motive on the part of four brothers to kill the deceased ;

(ii) that Jamal Nasir and his two younger brothers have been abscond ing from the date of incident ;

(iii) that according to Noorul Haq and Ubedullah all the four brothers were together at their Bungalow fifteen minutes before the incident and, therefore, had occasion to conspire ;

(iv) that the respondent No. 1's three brothers have been absconding with his consent and knowledge;

(v) that the respondent No. 1's car was used in the commission of the offence and till today, it could not have been recovered by the police; and

(vi) that the police is partisan.

In my view, the motive alone will not disentitle the respondent No. 1 to the bail if on the basis of the material on record. there does not appear any reasonable ground for believing that he has committed the offence. At the same time, motive also provides a reason to the complainant party to rope in more than one member of the accused party. Similarly, the) factum of abscondence of respondent No. 1's three brothers cannot be construed against the respondent No. 1. Learned counsel for the applicant was unable to point out any act or omission on the part of the respondent No. 1 which will justify the refusal of bail to him. On the contrary, on the date of the incident at midnight, he was found at his house from where he was arrested. He remained in police custody for five days from 25th June, 1985 to 30th June, 1985 and from 1st July, 1985 upto the date of grant of bail on 22nd July, 1985 in the judicial custody. No material has been placed before me to indicate that he has abused the concession o bail, granted by the learned Sessions Judge to him; nor this is an issue before me. Learned counsel for the applicant has also not cited any concrete example whereby, it may be inferred that the police is partisan or has not investigated the case properly. I have examined the police papers referred to hereinabove and found that, prima facie, there was nothing irregular in the investigation. The factum that the respondent No. 1's car has been used in the commission of the crime will also not be itself sufficient to deny bail keeping in view the fact that Jamal Nasir was his real elder brother and according to the respondent No. 1's statement recorded by the police on 30th June, 1985, his brother had borrowed his car for attending some feast.

14. Adverting to the question, whether the learned Sessions Judge has complied with the provision of subsection (2) of section 497, Cr. P. C. it may be observed that from the operative portion of the order quoted hereinabove, it seems that the same is not couched in the words as t conform to the terms of the 'above subsection (2) of section 497, Cr. P. C., but the learned Sessions Judge has taken into consideration the statement of Abdul Ali in which, the overt act is attributed to the respondent No. 1 and for good reasons, he has not relied upon the same. Even otherwise, I have examined the entire material on the record of the Investigating Agency and also the material placed by the learned counsel for the parties during the arguments and I am of the view that there are no reasonable grounds for believing that the respondent No. 1 has committed a non bailable offence, but there are sufficient grounds for further inquiry in his guilt, as to entitle him to bail under subsection (2) of section 497, Cr. P. C.

Before parting with the above discussion, I may point out that I have not heard an application for the grant of bail, but an application for the cancellation of bail granted by a competent Court. A High Court generally does not interfere with the exercise of discretion by a competent Court in respect of bail matters, unless it finds that the bail could not have been granted at all on the basis of the material on record or was granted in violation of some provision of law.

15. For the aforesaid reasons, the above application for cancellation of bail is dismissed. However, I may observe that the observations contained hereinabove are of tentative nature and are not to be referred to at the trial of the case or in connection with the other co‑accused.

M. Y. H. Application dismissed.

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