1981 PLP 35 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal is sought 1-.y a com plainant from the order of the Sind High Court dated 17-9-1979, refusing to cancel the bail granted by the same Court to the respondents in a case of attempted murder. The respondents were allowed bail by the Sessions Court. It was cancelled by the High Court mainly on the ground that the petitioner was then under 'medical treatment' and that the delay in the trial by then occasioned was not such as to exercise discretion in favour of the accused. However, bail was allowed to the respondents subsequently on consideration of the facts that the complainant side was not serious in producing the witnesses and that the injured was not in danger. The petitioner moved an application for cancellation which has been dismissed on the ground that in the circumstances of the case, the reversal of bail order would amount to review, which not being permissible, the remedy of the complainant was by way of appeal in the Supreme Court. Learned counsel for the petitioner contended : that the respondents had not surrendered after the cancellation of bail by the High Court, therefore, there was no justification for allowing them pre-arrest bail ; that they misused the concession of bail by absenting during the trial on account of which non -bailable warrants of arrest were issued against them that the nature and number of injuries as also the circumstances of the case did not justify grant of bail to the respondents particularly, when earlier the same Court had cancelled the bail granted to them by the Sessions Court ; and that the learned High Court failed to exercise jurisdiction under subsection (5) of section 497, Cr. P. C., on a wrong assumption that it would have amounted to a review of an earlier decision by the same Court. We agree with the learned counsel that in the circumstances of this case, the learned Single Judge was empowered under section 497(5), Cr. P. C. to examine the question of cancellation of bail from various angles. It would not have amounted to a review of the earlier order regarding grant of bail by the same Court. Otherwise too, the exercise of power under the said provision does involve some element of review. The High Court and Court of Sessions have been empowered not only to cancel the bail granted by any other Court but also the bail granted by themselves and even if section 369 of the Criminal Procedure Code which bars a review of a judgment in a criminal case, would have been applicable to orders regarding grant of bail, it would not have (in terms) applied to cancellation of bail under section 497(5), Cr. P. C., because it (section 369) saves what has been "otherwise provided fly this Code or any other law for the time being in force". Section 497(5) would thus be saved because it itself provides for the review of an older of bail passed by the High Court. While consider ing the effect of section 369, Cr. P. C. on the exercise of power under section 498, Cr. P. C. it was held in Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (P L D 1970 S C 335) that the former provision does not control the latter. It was also observed in this behalf that in the first place, an order passed under section 498, Cr. P. C. is not a judgment within the meaning of section 369, Cr. P. C. Moreover, section 369 of the Criminal Procedure Code is in the Chapter relating to original' trials and unless it is specifically applied to other proceedings under the Criminal Procedure Code, it cannot be said to have any application to other proceedings." It is now an accepted proposition of law that grant of bail under section 498, Cr. P. C. is ancillary to the provisions contained in that behalf in section 497, Cr. P. C. The rule laid down in the case of Gulzar Hassan Shah could thus also be attracted to the exercise of power by the High Court under sub section (5) of section 497, Cr. P. C. As a result of the view that we have taken on the question of review, this case could merit remand to the learned High Court. However, we have examined the question whether the bail granted to the respondents should now be cancelled. It is not necessary to make any comment on the merits of the case. It is admitted from the petitioner's side that the challan was submitted nearly three years ago and only one witness has so far been examined. The complaint of the learned counsel for the respondents is that the petitioner has intentionally prolonged the trial and that is why the pro secution has failed to produce the evidence. After hearing the learned counsel for the petitioner on this point, we are not satisfied with the bona fide of the petitioner in so far as the progress of the trial is concerned. In the circum stances of the case, therefore, we do not consider it a fit case for grant of leave. This petition accordingly is dismissed. Petition dismissed.