1980 P Cr (PLP)

‑‑‑ S. 497 (5)‑Cancellation of bail‑‑Bail not to lie cancelled as a matter of course, grant of bail being a matter of discretion‑Arbitrary exercise of discretion alone attracts cancellation of bail‑No hard and fast rules for cancellation of bail and decision depends upon circumstances of each case. (g) Criminal Procedure Code (V of 1898)‑

‑‑S. 497 (5)‑Cancellation of bail‑Manner of incident showing no premeditation on part of petitioner and petitioner not liable to be sentenced to death‑Such consideration hardly sufficient to grant bail in view of Exception IV to S. 300, P. P. C.‑Sessions Judge failing to take into consideration fact of injured eye‑witness naming only one accused and recoveries of weapon of offence and positive report of Ballistic Expert burdening petitioner with commission of crime- Reasonable grounds of accused being connected with commission of offence punishable with death existing‑Case against petitioner prima facie, held, established‑‑Bail cancelled, in circumstances -Penal Code (XLV of 1860), S. 300, Exception IV. Karamat Ali v. State 1979 S C M R 438 ref. (h) Criminal Procedure Code (V of 1898)‑

‑‑--S. 497 (5)‑Name of petitioner not finding mention in F. I. R. and no incriminating articles recovered from him‑Bail, held, not granted to petitioner in an arbitrary or capricious manner‑ Cancellation of bail declined, in circumstances. (i) Criminal Procedure Code (V of 1898)‑

‑‑‑S. 497 (5) ‑ Sessions Judge in granting bail making detailed appreciation of evidence and giving definite findings in case at bail stage‑Such course unjustified and uncalled for ‑ Ground of inordinate delay in lodging F. I. R. also not proper ground for consideration at bail stage‑Recovery of unlicensed crime weapon also not considered by Sessions Judge‑Case against petitioner, held prima facie made out‑Bail cancelled, in circumstances. Khalid Javed Gillan v. State P L D 1978 S C 256 ref. Samiuddin Sami through A. Q..Halepota for Appellant. Mohd. Sharif for. Respondent No.

1. Manzoor Hussain and Abdul Sattar Shaikh, Addl. A.‑G for the tale Dates of hearing : 5th and 9th September, 1979. These are two separate Criminal Miscellaneous Applications Nos. 463!79 and 663179 for the purpose of cancellation of bail which has been granted to accused in two separate murder cases. The facts in each case are different and they are dealt with separately, but they were heard together on the point as to what are the considerations which should weigh with the High Court in cancelling a bail. Another law point urged was that if bail has been rejected by a Sessions Judge than he or his predecessor should not allow bail in the same manner, unless there is a fresh material for his considera tion. 1 have heard Mr. A. Q. Halepota, Mr. Samiudhin Sami, Mr. Sharif, Mr. Manzoor Hussain and Mr. Abdul Sattar Shaikh, Additional Advocate. General on these two law. points and I will deal with theft arguments. Mr. Halepota placed his reliance upon Saiful Khan v. Crown (P L D 1955 Pesh. 50), showing that the order granting or refusing bail without any fresh material being placed on record was, if so .not illegal, at least, grossly, irregular, and that no second petition on identical ground was competent without fresh material giving rise to a fresh cause of action. He also relies upon Muhammad Aslam v. The State (1968 P Cr. L J 152) where it has been held that no second petition for bail on identical ground was competent without fresh develop ment. It was held in Shahbaz Tufail v. State (P L D 1978 Lah. 725), which was fairly brought to my notice by Mr. Sharif that Ilnd bail application is competent only on new and genuine grounds or fresh development. Mr. Halepota has also placed reliance upon Gul Nawar v. State (1970 S C M R 667) where it was observed that repeated applications for bail on the same facts did not lie. Mr. Halepota however, fairly placed before me Gulzar Hassan Shah v.Ghulam Murtaza (P L D 1970 S .C 335) where it was observed that High Court can review its order if the earlier order was passed without hearing the parties, and he therefore contended that only if party had not been heard then the IInd bail applicant can be entertained. However, I find that in Sabahuddin alias Chabbi v. State (P L D 1979 Lah. 220), it was held that the Court is entitled to entertain fresh bail application and to consider fresh material or grounds or to consider the piece of evidence which was not considered earlier. Mr. Sattar Shaikh referred in detail P L D 1970 S C 335 where it was held that section 369 of Cr. P. C. does not control section 498 and applications for bail can be. repeated on fresh material or new grounds. In Zahur Ilahi v. State (PLD1977SC273) the following observations are found. "There is no mention in the order of Single Judge that he has also examined the statement of witnesses other than Manzoor" Supreme Court therefore directed the counsel .to make fresh application. Mr. Sharif; therefore argues that this clearly visualises making of the 2nd application if certain circumstances of the case have not been considered. Therefore, I am of the view that a fresh bail application can be moved on the ground that a particular circumstance has either not been brought to the notice of the Judge or it has not been considered by the Judge. It is agreed on all hands that 4f there is a fresh material then of course a bail application can always be repeated. It is only the question of appropriateness which is to be considered by the second Court whether in view of the previous application having been considered on merits he should consider a fresh application without any fresh, material having been introduced. There is no bar in law to such application being made, if a party can show that his case has not been properly considered in all its aspect. In respect of the grounds for cancellation of bail the counsel of different sides have produced innumerable authorities and I find that the view seems to be that the grant of bail is essentially a matter within the discretion of the High Court and in respect of the grounds for cancellation of bail in Anwarud Din v. State (P L D 1977 S C 602), the majority view was that the High C our was empowered to cancel the bail earlier granted by itself and that there was no finality attached to the order of granting or rejecting a bail. In that case however the minority view was that the order granting bail must be perverse before the bail could be cancelled. In Muhammad Shahbaz v. State (1979 S C M R 146), it was observed that since the High Court did not act arbitrarily and the matter of bail was within the discretion of High Court and there was no violation of any fundamental principle of administration of justice, therefore, application of cancellation of bail is dismissed. Again in Muhammad Ismail v. Patten Malak (1979 S C M R 91), it was observed that the matter of bail was essentially in the discretion of High Court and there was no legal and factual infirmity of any fundamental nature in the order of the High Court therefore it was held that the bail did not suffer from infirmity. Again in Abdul Rashid v. Mushtaq Ali (1979 S C M R 362), where bail had been granted by the High Court on account of delay in trial, it was held that the question of bail is essentially a .matter of discretion for the High Court and Supreme Court did not think that the High Court had committed any fundamental error of law or procedure in granting bail to respondent. In Ghulam Nabi v. Muhammad Shafiq (1979 S C M R 479) it was observed that the view of the High Court that the bail once granted could not be recalled in the absence of cogent reasons such as misrepresentation or suppression of facts or the concession of bail being abused by the accused. In that case the bail had been granted by the High Court on the basis of delay in trial of two years. But I find that in Barkat. Bibi v. Gulzar (1979 S C M R65) shown to me by Mr. _ Samiuddin where the High Court had granted bail on the ground that no particular accused had been assigned the part of giving vital blow, the Supreme Court cancelled the bail on the ground that it was in disregard of some of salient facts of the case and legal principles applicable to them and that section 34 had been disregarded in respect of joint responsibility of all accused in the causing of death. Again in 'Imam Bakhsh v. Muhammad Bakhsh (1979 S C M R 519), it has been observed that if discretion has been exercised against patent facts of the case it would be the capricious exercise of discretion. Mr. Halepota relied upon Major (Retd.) Aurangzeb v. State (1979 S C M R 197) where the bail had been granted by the High Court on the ground that the respondent was not armed, had no motive of his own, and had not caused any injury to the deceased .and that the challan had been submitted for trial. The Supreme Court cancelled the bail on .the ground that the respondent had colluded with his co‑accused and played an active role in the transaction by catching hold of the deceased while co‑accused inflicted the hatchet blow. Therefore, provisions of section 34 were prima facie attracted. In the light of these rulings it is apparent that the High Court is entitled to cancel the bail clearly in those cases where there is any perversity in the order granting bail. It is also permitted to cancel the bail where the bail has been granted in disregard of some of the salient facts of the case and legal principles applicable to them and also if the discretion has been capriciously exercised. It was also an established proposition that if discretion has been exercised against patent facts of the case it would amount to capricious exercise of discretion and may entitle the High Court to cancel the bail. It is however also clear from these judgments that the bail should not be cancelled as a matter of course, as the grant of bail is a matter of discretion and it is the arbitrary exercise of discretion which should attract the cancellation of bail. Therefore, it is apparent that no hard and fast rule has been laid down in respect of the matter of cancella tion of bail by the High Court and it would depend upon the circumstan ces of each case whether the bail should be cancelled or not. In the matter of Cr. Misc. No. 463/79 1 find that the first order rejecting the bail was passed by the Additional Sessions Judge on 18th May, 1978 where he rejected the bail of the respondent on the ground that evidence against him consisted of 4 eye‑witnesses, namely (1) Ghulam Hyder Panwhar, (2) Usman Jat, (3) Saddiq Jat, (4) injured complainant Vikio. It was also observed that there was a recovery of crime empty found at the vardat and pistol had been produced by accused Abdullah at the time of his arrest and report of ballistic expert showed that the chime empty and the revolver recovered from the vardat matched with each other and the medical certificate showed that the injury upon Talib was by Revolver which confirmed the statement of the complainant in the F. I. R. that Abdullah accused had caused the revolver injury upon the chest of Talib deceased. The Additional Sessions Judge had also considered delay in trial upto 18th May, 1978 and had also held that although the incident is of 5th August, 1976 yet the delay in the trial was on account of the accused's counsel seeking adjournments, therefore, bail could not be granted. The learned Sessions Judge on 25th April, 1979 granted the bail on the grounds (1) possibility of victimisation by police, (2) theory of self‑defence, (3) no independent witness, (4) no eye‑witness from village, (5) inconsistency between F.

1. R. .and statement under section 164, Cr. P. C., (6) manner of incident showed no premeditation, therefore, capital punishment could not be awarded, (7) delay of 3 years. I find that the accused alleged enmity with A. S. I. Police m 1974 but that A. S. 1. had nothing to do with the investigation of the case, and therefore, it was not the relevant consideration at the stage of bail. The theory of self‑defence had no basis merely on account of the fact that the incident had taken place in the hotel‑of accused Abdullah. There was no injury alleged to have been caused to the accused, and therefore, at that stage there was no material or circumstance which could lead to the theory of self‑defence. The factor that there was no independent witness or no local witness was not really of such a significance that it could be considered on ground of granting bail more particularly so when P. W. Ghulam Hyder Panwhar belongs in a different caste. It was only after it has been established that the prosecution witnesses had no business to be available at the site of the offence that their presence could be disbelieved and until then it had not become a matter of further inquiry into the guilt of the accused. Moreover I find that in respect of inconsistency of F. I. R. and statement under section 164, Cr. P. C. the learned Additional Sessions Judge has unnecessarily gone into such details that F. I. R. states accused fired from the pistol while the 164, Cr. P. C. statements states that he took out pistol from counter. Such minor difference in the view of the P. Ws. could no be regarded as inconsistency for the purpose of bail. The consideration that the manner of incident showed no premeditation and the accused could not be sentenced to death was hardly sufficient to grant bail as exception 4 to section 300 required that the offence should not only be without premeditation but it should also be shown that it was not a sudden fight in the heat of passion upon a sudden quarrel and that offender had not taken undue advantage or acted icy a cruel or unusual manner. Therefore merely acting without premeditation did not attract exception and it was only after evidence had been recorded that the said exception could be attracted in this case. The last ground that there was a delay of three years had failed to take into consideration that up to 18th May, 1978 in the last order rejecting the bail application the delay had been attributed to the defence. In any case delay per se of one year would hardly be a ground of giving bail as in Karamat Ali v. State (1979 S C M R 438) it was held that the delay to constitute a ground for bail must be unconscionable delay. The learned Additional Sessions Judge, had not observed that there was any unconscionable delay, on the part of the prosecution. In any case the learned Additional Sessions Judge has failed to take into consideration that there were eye‑witnesses one of them was the injured complainant who had named only one accused and that the recoveries of the crime empties at the vardat and the pistol from accused Abdullah complied with the report of the ballistic expert, which was positive, had burdened accused Abdullah with the. commission of the crime and at this stage, there appeared reasonable grounds for believing that he had been connected with offence punishable with death. I am unable to find that there were sufficient grounds for enquiry into the guilt of the accused, in the circumstances of the case, and bail had therefore been granted to him against the patent facts and in disregard of these fact which had clearly established the prima facie case against the appellant. The bail granted to accused Abdullah is therefore, cancelled. I may however observe that my above observations are merely tentative and they will not be referred at all at the trial of the accused. In respect of Criminal Misc. 663/79 1 find that there was a dispute between the complainant side and the accused‑ side on the question of land and in the F. I. R. which was lodged on 20th June 1977, accused Ghulam Miran and Gul Babar with one unknown person were alleged to have fired at the complainant party and killed three of them and also looted their property. Gul Hassan was not named, the evidence was witnessed by two. eye‑witnesses Ismail and Mohammad Ali. Ghulam Miran, Gul Hassan and Gul Bahar, the three accused are real brothers. Bail was granted to Gul Hassan on 10th April, 1979 on the ground that he was not named in the F. I. R. and in 164, Cr. P. C. statements of the witnesses, although his other two brothers were clearly named. There was also no recovery of any incriminating articles from him and only circumstance against him was that he had been identified in an identification parade after two years of the incident. I do not find that bail has been granted to Gul Hassan in an arbitrary or capricious manner or even in disregard of the salient facts of the case and I therefore do not consider it a fit case to cancel his bail. On 30th June 1979 bail was granted to Gul Bahar on the ground that Ismail and Mohammad Ali who are the only two eye‑witnesses are chance witnesses and their presence at the scene of offence was doubtful and that P. W. Karamullah in his 164, Cr. P. C. statement had stated that accused had muffled faces and that the F.

1. R. was filed after consultation with Atta Mohammad Lund and that F. I. R. had been lodged after 5J hours: I find that the Additional Sessions Judge has taken very great pains in proving at the. stage of bail that Ismail and Mohammad Ali could not be at the scene of offence. I am conscious that in Khalid Jared Gillan v. State (P L D 1978 S C 256) Mr. Justice Dorab Patel had observed that there is a duty cast on the Court of making tentative appreciation of evidence of the material produced before it by the parties even at the time of bail, and therefore, the Sessions Judge could make a tentative appreciation, but in fact what he has done is that he~ has concluded the matter about presence of the eye‑witnesses at the trial by saying that it was doubtful whether they could be present at the scene of offence, therefore, there was hardly any scope left for further enquiry on this account. 1 his has been done without considering the explanation offered by Mohr] : Ali and without making of the inspection of the relevant area which was. considered necessary at one time by the learned Judge himself, and without even recording the statement of the other eye‑witness Mohd. Ismail, Such definite finding at this stage, was, therefore not justified and such detailed appreciation was uncalled for. The learned Judge has also considered a delay of 51 hours in the filing of the F. I. R. while the distance was 12 miles from the village to the police station and three miles between the scene of offence and the village, therefore, for the purposes of bail 5 hours delay when the distance is about 15 miles is not such an inordinate delay that it could be taken as the ground of the granting bail. In Hakim Ali v. State (1979 S C M R 114) it was held that the delay in filing the F.

1. R. should be considered at the stage of trial and not at the stage of bail. Moreover, the learned Judge has stated that the F. I. R. was filed after consultation with Atta Mohammad. Again this factor could not be considered as the ground of bail as it is not uncommon in Sind with the parties to go to their Nekmard before filing the report. Moreover, the learned Judge has failed to give any consideration to the fact that there are recoveries from accused Gul Babar of unlicensed revolver with live bullet and licensed revolver of the deceased Mohammad Ali as well as the licence of deceased Barkat Ali and also his wrist watch. The recoveries of these articles and the report of ballistic expert which is shown to be positive from the statement made by the A. P. P., show that a reasonable prima facie case has been made out against accused Gul Bashir by the prosecution under section 302, P. P. C. and there were no sufficient grounds for further inquiry or justifying the grant of bail. The bail should not therefore have been granted in disregard of the recoveries of the articles of the deceased which reasonably connect accused Gul Bahar with the crime. Therefore, bail granted to respondent Gul Bahar is cancelled and he is directed to be taken into custody. These observations would, however, not be used to the prejudice of the accused Gul Bahar at the trial of the case nor would this order deter the trial Court from considering a fresh bail application, if the introduction of any fresh material justifies the same. Order accordingly,