1990 PLP 1290 (SCMR)

Raja Muhammad Anwar, Senior Advocate Supreme Court and Imtiaz M.Khan, Advocate‑on‑Record for Petitioner. Ch.M.Akram, Advocate Supreme Court, M.Bilal, Advocate Supreme Court and Manzoor Elahi, Advocate‑on‑Record for Respondents Nos.l and

2. Date of hearing: 9th April, 1990. ABDUL QADEER CHAUDHRY, J.‑‑‑Leave to appeal is sought against the order of the High Court dated 27‑2‑1990 whereby the bail granted to the petitioner by an Additional Sessions Judge, was recalled.

2. According to the prosecution, Muhammad Yasin deceased, had a dispute over property with his stepfather Sher Muhammad. The petitioner alongwith other accused caught hold of Muhammad Yasin, deceased, from this arm and pushed him towards the house of Sher Muhammad, accused. The petitioner was armed with a .12 bore gun. Sher Muhammad picked up a Band cut both the hands of the deceased from his wrist. Aslam, petitioner, pointed his gun towards P.W. Muhammad Lateef and warned him that if he raised alarm he will be dealt with in the same manner. Thereafter, Raza Sher, accused, cut the tongue of the deceased with a razor. The motive for the occurrence was that the petitioner and the co‑accused Sher Muhammad had got transferred property of Muhammad Yasin deceased in their names fraudulently and civil litigation was going on between the parties.

3. Learned counsel for the petitioner has submitted that the petitioner was admitted to bail by the learned Additional Sessions Judge under Section 497(2), Cr.P.C. The learned High Court should not have re‑called the said order. He has placed reliance on the following observations of this Court in Muhammad Ismail v. Muhammad Rafique P L D 1989 S C 585 wherein it was observed that: "(i) It is well‑known practice of the superior Courts of Pakistan that when a murder case is fixed for hearing ordinarily the bail applications are not decided on merits. and (ii) it is apparent that when the Court finds that the two essential conditions contained in section 497(2), Cr.P.C. are satisfied the accused shall become entitled as of right to bail."

4. As regards the first observation, the trial has not yet started, rather it is the grievance of the respondent that the hearing has been delayed on account of the conduct of the petitioner who had not appeared before the Court. No witness has so far been examined, therefore, the first observation is inapplicable to the present case.

5. As regards the second observation, the High Court is not precluded to consider the facts of the case. It is not a universal practice that once the Court of Session exercises its jurisdiction under section 497(2), Cr.P.C. the High Court should accept the findings without probing into the matter. Both the Courts have concurrent jurisdiction and while considering grant of bail to an accused under section 497(2), Cr.P.C. the merits of the case have to be considered though such observations may be tentative in nature. The High Court for sound reasons has re‑called the order passed by the learned Additional Sessions Judge. Section 497(2), Cr.P.C. according to the order of the High Court, does not apply to the case of the petitioner. We do not, therefore, see any reason to interfere with the order passed by the learned High Court.

6. The petition is dismissed and leave to appeal is refused. As the trial has already delayed, the trial Court is directed to dispose of the case as expeditiously as possible. N.H.Q./M‑1345/S?????????????????????????????????????????????????????????????????? Leave refused.