P L D 2005 Karachi 616 (PLP)

RAHMAT HUSSAIN JAFFERI, J.

The applicant has filed the application under section 561-A Cr.P.C. challenging the order dated 28-8-2004 by which the learned 1st. Additional Sessions Judge, Khairpur issued notice to the applicants to show cause as to why their bail should not be cancelled. The facts giving rise to the present application are that the applicants along with co-accused Bakhshal, juvenile offender Pervez and Deedar were challaned for committing offences punishable under sections 302, 201, 148, 149, P.P.C. The case was pending on the file of Additional Sessions Judge, Gambat. On 15-3-2004 Mr. Muhammad Yamin, the then Additional Sessions Judge, Gambat granted bail to the applicants and one Bakhshal. Subsequently, the case of juvenile offender Pervez was separated and was sent to Juvenile Court headed by 1st Additional Sessions Judge, Khairpur. In order to avoid conflict of decisions, the learned Sessions Judge recalled the case of the applicants and other co-accused from the file of Additional Sessions. Judge, Gambat and sent it to the file of 1st. Additional Sessions Judge, Khairpur. Co-accused Deedar moved a bail application before the 1st. Additional Sessions Judge, Khairpur. The learned Judge dismissed the bail application of Deedar. However, he issued notice to the applicants to show cause as to why their bail should not be cancelled under the impugned order. I have heard the Advocate for the applicants State counsel and perused the relevant provisions of law. Learned counsel for applicant has challenged the impugned order on two grounds: firstly, that the Additional Sessions Judge, Khairpur had no suo motu powers to issue show-cause notice for canceling the bail which was granted by another Additional Sessions Judge; secondly, that even if the notice was issued then the matter should have been referred to the Additional Sessions Judge, Gambat for decision of the bail application. In order to support his arguments on the first proposition, he has referred to the case of Dr. Waqar Hussain v. State (2000 SCMR 735) and on the second proposition he has referred to the case of Allah Bux v. State (1986 PCr.LJ 651). Conversely, the learned State counsel has stated that the Additional Sessions Judge was competent to issue show-cause notice as while deciding the bail application of Deedar he formed the opinion that the notice for cancellation of bail to other accused was required to be issued. He has further stated that Mr. Muhammad Yamin, Additional Sessions Judge, Gambat who had granted the- bail, has been transferred and some other Judge has been appointed; therefore, it will be futile to send the case to the Additional Sessions Judge, Gamabt. However, he has no objection if the matter of cancellation of bail is transferred to the Additional Sessions Judge, Gamabt. I have given due consideration to the arguments and gone through the various provisions of law and found that a bail can be cancelled under section 497(5), Cr.P.C. which reads as under:-- "497(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may con-unit him to custody." Under this provision, the High Court, Court of Session and any other Court, which granted the bail itself, have been given jurisdiction to cancel the bail. Under the Criminal Procedure Code there is only, one Sessions Court in a Sessions Division as envisaged under section 6 read with section 9 (1) of Criminal Procedure Code. There is no Court by the name of Additional Sessions Judge. As such, when a matter is sent up to the Court of Session for trial then the matter remains on the file of Court of Session. Under section 9(3), Cr.P.C., the Provincial Government is empowered to appoint Additional Sessions Judge or Assistant Sessions Judge to exercise jurisdiction in the Court of Session. As such when an. Additional Sessions Judge is appointed in any Sessions Divisions then he is empowered to exercise jurisdiction of Sessions Court. Whenever, he passes an order he passes it as a Court of Session and not that of any other Court/authority for the simple reason that under section 9(3), Cr.P.C. he is appointed to exercise jurisdiction of Court of Session. Keeping in view the above principle of law with regard to the Court of Session, it will be noticed that the Additional Sessions Judge, Gambat while granting the bail had exercised powers of Court of Session, Khairpur. As such, when he granted the bail, he granted it as a Court of Session, Khairpur. When the case was withdrawn or recalled from the file of Additional Sessions Judge, Gambat and sent it to the file of 1st. Additional Sessions Judge, Khairpur he was also exercising the powers of Court` of Session, Khairpur. As such, whatever the action or order of 1st. Additional Sessions Judge, Khairpur would be that would be done or passed as a Court of Session. As there is only one Court of Session in Sessions Division, Khairpur; therefore, the orders of both the Additional Sessions Judges would be the orders of Sessions Court, Khairpur. The Additional Sessions Judge, Khairpur while dismissing the bail application or Deedar issued show-cause notice to the applicants concerning their grant of bail. Under suo motu powers he is competent to B exercise such powers as provided under section 497(5), Cr.P.C. as a Court of Session. The learned counsel for applicant was enquired as to whether the Additional Sessions Judge, Khairpur was competent to issue such notice on an application if moved by the prosecution for cancellation of bail granted to the applicants. His answer was in affirmative but he took the plea that the matter should have been referred to the Additional Sessions Judge, Gambat because he had granted the bail. In any case the power rests with the Additional Sessions Judge to issue show-cause notice either on the application or while exercising suo motu powers. Under subsection (5) of section 497, Cr.P.C no bar has been created for exercising such powers if an application is not moved by any person. Perusal of various provisions of Criminal Procedure Code reveals that in some provisions the law provides that the powers should be exercised on moving application, filing complaint or appeal such as sections 195, 200, 339, 345, 410, 494, 502, 506, etc, Cr.P.C., and in some provisions jurisdiction has been conferred upon the Court to exercise such powers either on application moved by the complainant, prosecutor, accused or on own accord of the Court such as sections 249, 249-A, 265-K, 435, 439, 504 etc. Cr.P.C. Subsection (5) of section 497, Cr.P.C., comes within the category of latter provisions. As such the Additional Sessions Judge, Khairpur was competent to issue suo motu notice in such cases. The learned counsel for the applicant has referred to a decisions to Honourable Supreme Court of Pakistan in the case of Dr. Waqar Hussain (supra), a perusal of this decision reveals that under revisional jurisdiction the High Court took suo motu action for cancellation of bail. After discussing various provisions, the Honourable Supreme Court of Pakistan at page 281 observed as under: "In view of above discussion, there can be no cavil with the jurisdiction of the High Court to initiate suo motu proceedings for issuing notice to the petitioner." Even in the above authority, the suo motu powers of the High Court were found to have been correctly exercised but the order was set aside on altogether different grounds. It is pertinent to point out that suo motu powers to cancel the bail can be exercised by Sessions Judge or Additional' Sessions Judge (Court of Session) only on new, fresh and other grounds such as misuse of bail etc. which were not available or decided by the Court earlier. In the present case the learned 1st Additional Sessions Judge has made adverse comments and shown disagreement with certain observations made in the earlier order passed by the Additional Sessions Judge, Gambat, which he cannot do. Further, no new, fresh, or other grounds, such as misuse of bail etc. were alleged or found at the time of decision of bail application of accused Deedar, from the grounds earlier taken and decided in the earlier bail order, warranting issuance of notice for cancellation of bail to the applicants; therefore, the learned 1st. Additional Sessions Judge was not competent and justified to issue such notice. As regards the second submission made by the learned counsel for applicant, suffice it to say that Mr. Muhammad Yamin, Additional Sessions Judge, Gambat who had granted the bail to the applicants has been transferred and some other Judge has been posted in his place. The rule laid down in the authority referred to in Allah Bux (supra), is not applicable to the facts and circumstances of the present case. However, in the case of in re; To Revisit "The State v. Zubair", 2002 SCMR 171 the Honourable Supreme Court of Pakistan has held that now it is not necessary that the same Bench should hear the bail application which heard the earlier bail application but on fulfillment of certain conditions and situation deviation can be made from the rule laid down in the case or State v. Zubair, PLD 1986 SC

173. In the present case Mr. Muhammad Yamin, Additional Sessions Judge has been transferred: therefore, it will be futile exercise to send the matter to the Additional Sessions Judge, Gambat. Even otherwise, on the ground of misuse of bail, new or fresh grounds other than the grounds earlier taken and decided, the matter can be heard and decided by any other Additional Sessions Judge, pending adjudication of the case. In the light of what has been discussed above the application is disposed of in the above terms. N.H.Q/G-65/K Order quashed.