P L D 1988 Karachi 148 (PLP)

This is an application under section 497(5), Cr.P.C. for cancellation of bail granted to the respondents Nos.1 to 12 by the learned Additional Sessions judge, That a, in S.C. No.117 of 1986 under sections 307, 324, 147, 148 and 114, P.P.C. The brief facts giving rise to the present application are that on 9‑10‑1996 applicant Muhammad~ Ali lodged a report at P.S. Gharo which reads as under:‑ "The report is that I am a Zamindar and own land in Deh Gharo. My brother Haji Mehar has got a plot of land in Survey No.102 in Gharo town. We have Laid the foundation on the said plot and for raising structure we have collected the buildings material. Mr. Jumman have been telling us that he would not allow us to raise the construction on the plot and have been making preparations to fight. Today, 1, my brothers Haji Mehar, and Allah Bachayo were taking tea in the hotel of Hassan Mundair at about 12‑30 noon. We saw Mir Juman armed with revolver, Khan Muhammad armed with gun, Allahdino armed with gun, Bachal armed with gun, Allahdino son of Bidu armed with hatchet, Khuda Bux armed with revolver, Hyder armed with hatchet, Ali Muhammad armed with hatchet, Kadir Bux armed with hatchet, Hassan armed with gun, Minhawasaya armed with hatchet, Murad armed with lathi, Notak armed with hatchet alongwith 7‑8 others unknown persons. Mir Jumman called my brother Haji Mehar while abusing him, he said that ‑for so many times I have been telling you to leave the possession of the plot but you are not coming round. Whereupon my brother told him to behave properly and not to abuse; That the plot was ours, and we will not give up the possession. Mir Jumman immediately fired 2‑3 successive shots at my brother Haji Mehar who fell down. In the meanwhile 1, my brother Abdul Wahid and cousin Allah Bachayo hurriedly went there. Mir Jumman instigated his companions whereupon Amir fired revolver shots at my brother Abdul Wahid which hit Abdul Wahid who also fell down. Rest of the culprits gave us hakals and fired in the air. Accused Hyder Hajano and Minhwasayo inflicted hatchet injuries to me and Allah Bachayo. Allah Bachayo fell down, and I sustained the injury on my left leg. I entrusted the accused whereupon they left while abusing us, and firing shots in the air. They further said if we did not vacate the plot, we will be dealt with severely. Having left the injured at the vardat, I have come to lodge the report. The matter may be investigated. 11 That the respondents Nos. 1 to 5 moved an application for bail before the learned Additional Sessions Judge, who was pleased to grant bail to opponents No.2 to 5 while application of opponent No.1 was rejected vide order dated 10‑10‑1986. That after about three weeks of the above order the opponent No.1 filed a fresh bail application before the learned trial Judge and the same was allowed vide order dated 24‑4‑1986. That later on the opponents Nos.6 to 12 applied for bail before arrest and they were allowed interim bail by the learned trial Judge vide order dated 27‑12‑1987. The applicant moved an application for cancellation o; bail granted to the opponents Nos.1 to 5 which was heard alongwith the plea for confirmation o pre‑arrest bail of the opponents Nos.6 to 12, and the learned trial Judge was pleaded to confirm the bail granted to the opponents No.6 to 12, while the application for cancellation was rejected vide order dated 15th June, 1987. The present application is directed against the above order. I have heard Mr. Aftab Ahmed Akhund, learned counsel for the application, Mr. Muhammad Hatif Khudai Ansari, learned counsel for the opponents Nos.1 to 12, and Mr,. Abdul Ghafoor Mangi learned Assistant Advocate‑ General appearing for the State. Mr. Aftab Ahmed Akhund Advocate did not press application against respondents Nos.2, 3, 4, 5, 7, 8, 9, 10, 11 and

12. As regards opponents Amir Bux and Mir Jumman it was contended by him that Amir Bux and Mir Jumman were armed with fire‑arms and that Amir Bux had fired at Abdul Wahid while Mir Jumman had fired at Mehar. That P.W. Abdul Wahid had four injuries on his person out of which injuries Nos.1 and 2 were caused with fire‑arm, and that the injury No. 1 on his chest was grievous in nature. As far as injured Mehar was concerned he had fire‑arm injury on his right thigh which was of course simple in nature. He further contended that the learned Additional Sessions Judge had committed an error by allowing bail to opponent Amir Bux on review application which was not maintainable in law inasmuch as there were no fresh grounds for granting bail to him. In support of his contentions the learned counsel has relied upon P L D l986 SC

173. Mr. Hatif Khudai Ansari Advocate for the opponents Nos.1 to 12 has contended that the review application was maintainable in law. That since the learned Judge had failed to consider certain points raised in the earlier application, the fresh bail application was maintainable. He has further contended that the injury received by Mehar was simple in nature and was not on vital part of his body. He has further contended that the medical certificate was at variance with the ocular evidence, and therefore, these respondents were rightly granted bail. In support of his contention the learned counsel has relied upon P L D 1970 S C 335, 1980 P Cr. L J 602, 1981 P Cr. L J 607 and 1983 P Cr. L J 2191. Mr. Abdul Ghafoor Mangi A.‑A.G. has contended that in view of the fact that injured Mehar had sustained simple injury, and that the same was not on vital part of his body therefore case of opponent Mir Jumman requires further enquiry. As far as opponent Amir Bux was concerned it was contended by him that he was responsible for causing grievous injury to injured Abdul Wahid with revolver and, therefore, his bail was liable to be cancelled. I have considered the contentions of the learned counsel and have gone through the documents produced by the parties. As far as the opponents Nos. 2, 3, 4, 5, 7, 8, 9, 10, 11 and 12 are concerned, the learned counsel for the applicant has not pressed the application against them, and, therefore, the application in respect of these opponents stands dismissal as not pressed. So far as opponent Mir Jumman was concerned the allegation against him was that he fired 2/3 shots at Haji Mehar and he had received one simple injury on his thigh and, therefore, it was yet to be seen as to whether his case will fall under section 307, or under section 324, P.P.C. Reliance is placed on Dhani Bux v. The State PLD 1964 (W.P.) Kar. 264 wherein it was held by Mr. A.S. Farooqui, J. (as he then was) that "from the mere fact that a pistol shot was fired it cannot be said that the inference which follows is that the intention was to kill. Such a shot can be fired in fit of temper, it can also be used in the same way for causing merely hurt, it may even be used in self‑defence without any intention to kill and so on." As far as the case of opponent Amir Bux was concerned he was responsible for causing 2 fire‑arm injuries to Abdul Wahid out of which one was on his chest which was found to be grievous in nature. Therefore, on one hand the injury was grievous in nature, and on the other hand it was on the vital part of the body of the injured. Secondly his first application was rejected on 30‑10‑1986 and he was granted bail on fresh bail application on 24‑11‑1986. There were in fact no fresh grounds for entertaining the second application for bail, and the learned Additional Sessions Judge committed an error by granting bail to him without there being any fresh ground. As far as the decisions relied upon by the learned counsel for the opponents were concerned, in GuIzar Hassan Shah v. Ghulam Murtaza Shah and 4 others P L D 1970 S C 335 it was observed by their Lordships that:‑ "there is no quarrel with this proposition of law. The question for consideration is whether section 369 of the Criminal Procedure Code controls section 498, Cr.P.C. or section 561‑A of the Criminal Procedure Code applies to it. In my opinion, section 369 of the Cr.P.C. does not control section 498 and in suitable cases section 561‑A of the Criminal Procedure Code can be invoked. 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 trial 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." In Vikio v. Abdullah and another 1980 P Cr. L J 602 it was observed by this Court that: "a fresh bail application can be moved on the ground that a particular circumstances 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 if there is a fresh 11 material then of course a bail application can always be repeated. There is no bar in law to such application being made, if a party can show that his case has not properly been considered in all respects." "while a person is in Jail custody an application for bail may be moved any time and can be repeated without restriction specially as and when there is any change in the circumstances of the case against him." The last decision relied upon by the learned counsel for the opponent 1983 P Cr. L J 2191, Bashir Ahmed v. The State wherein it was held that "injuries alleged to have been caused to the injured not declared dangerous to life, question‑of application of section 307, P.P.C. requires serious consideration." and bail was granted. In reply the learned counsel for the applicant has relied upon a Supreme Court decision reported as The State through Advocate General N.‑W.F.P. v. Zubair and 4 others P L D 1986 S C 173 and submitted that the fresh application could be moved only on fresh grounds, and even the fact that the some of the grounds urged by the accused were not considered by the Court while deciding the earlier bail application will not be a ground for entertaining fresh bail application. There is no cavil with the proposition that the accused has a right to move fresh bail application as and when any fresh ground is available to him. In the present case the decisions relied upon by the learned counsel for the opponents are distinguishable on number of grounds. As far as the first decision reported in P L D 1970 S C 335 was concerned it was a case in which the complainant had applied for cancellation of bail granted to the accused by the Sessions Judge, and the High Court was pleased to cancel bail of the accused without giving him an opportunity of being heard. However, the accused moved an application for recalling the order of cancellation, and the order was recalled and bail was granted by the High Court. This order was challenged before their Lordships of the Supreme Court where it was observed that section 369, Cr.P.C. does not control section 498, Cr. P.C. and in suitable cases section 561‑A of the Criminal Procedure Code can be invoked. In the first place order under section 498, Cr.P.C. is not a judgment within the meaning of the section 469, Cr. P. C. Moreover, section 369, Cr. P. C. is in the chapter relating to original trial, and unless it is specifically applied to other proceedings in the Criminal Procedure Code it cannot be said to have any application to other proceedings. It was further observed that "I am conscious of the fact that general principles of finality of judgment attaches to the decision or order of the High Court passed in criminal cases. But it will not apply to cases where an order is passed without jurisdiction or without giving any opportunity to the parties of being heard. In such cases section 561‑A, Cr.P.C. can be invoked for the purpose of doing justice between the parties and for seeing that the act of the Court does no injury to any of the parties. This is an inherent power of the Court and has been preserved by the above provision of law. In my opinion in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which are not governed by sections 369, 424 and 430, Cr.P.C. with a view to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is, however, not possible to enumerate the circumstances in which this provision can be invoked. It may, however, be mentioned that the learned counsel for the appellant has conceded that application for bail can be made from time to time on fresh material. There is thus, no difficulty in such cases. Their Lordships further went on to say that: ‑ "even otherwise the order dated 8th August, 1969 suffers from the principles of the natural justice. It was passed in absence of the respondents for no fault of theirs. It was, therefore, a nullity in the eye of law and the question involved should have been re‑examined and decided in the presence of the parties. In the light of the above discussion I am quite clear that the application under section 561‑A, Cr.P.C. was quite competent and the order passed by Shafiqur Rehman, J. (as his Lordship then was)., later on on, that the application does not suffer from 'any lack of jurisdiction." The above decision with utmost respect on one hand lays down that the order passed on bail application is not covered by the provisions of section 469, Cr.P.C. and on the other hand it has been observed that a fresh application can be made from time to time on fresh material. As far as the case reported in 1981 P Cr. 1, J 607 was concerned, it clearly shows that bail application can be moved any time and could be repeated without restriction, specially as and when any change in circumstances of the cases takes place. In the case reported in 1980 P Cr. L J 602 it has been observed that party showing his case having not been considered in all it's aspects, no bar in law for fresh application being made. While the decision in 1983 P Cr. L 3 2191 was given on merits and was distinguishable inasmuch as it was a case where the injuries were caused with blunt weapons and not with a fire‑arm. The decision in the case of the State through the Advocate General N. W. F. P v. Zubair and others reported in P L D 1986 SC 173 relied upon by the learned counsel for the applicant, it has been observed by their Lordships of the Supreme Court that‑ It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or w ' as not pressed it cannot be considered as a fresh and made the basis of any subsequent bail application. We may also point out, with respect to the learned Judge, who dealt with the second bail application that the mere fact that the learned Judge who had rejected the first bail application of the respondents with the observation that as far as the remaining petitioners (the respondents herein are concerned no case had been made out for their release on bail, does not mean that the application had not been disposed of on merits. It must 6e assumed that he had considered all the pleas or grounds raised by the applicant's counsel before him, and that the same had not found favour with him. It may be pointed out, with great respect, that the notion that each contention raised before the Court in a bail application must be dealt With separately or repelled by recording elaborate reasoning, is totally misconceived. We are of the view that in the present, case the learned Judge who dealt with the second bail application had, in fact, embarked on a review of the order of the learned Judge who had earlier dismissed the first bail application." ,In view of the above factual as well as legal position specially in view of the recent decision of their lordship of the supreme Court , cited by the learned counsel for the applicants, the bail application could not be repeated merely on the ground that some, points were not considered by the learned Judge while deciding the earlier bail application. As far as the contention of Mr. Hatif Khudai‑Ansari regarding medical evidence was concerned suffice it to say that the ocular evidence show that injured was fired at by Ameer Bux and the Medical Officer has found two fire‑arms injuries on the person of injured Abdul Wahid. So far as the weapon of offence was concerned, it was yet to be seen whether it was a foreign made revolver‑or a country,‑made revolver and the learned Additional Sessions Judge could not go into deeper appreciation of the evidence at this stage. In view of the above discussion I am of the considered view that the review application was not maintainable in law nor the application for bail on behalf of the opponent Ameer Bux, could be maintained on the ground that some points were not considered by the learned Judge while deciding the earlier bail application. Moreover, he was alleged to have caused grievous injury with' fire‑arm on the, chest of the injured, and, ' therefore, it was not a case where the learned Additional Sessions Judge could grant bail to Ameer Buxwithin 24 days of the rejection of the earlier bail application. The order granting bail to opponent Ameer Bux is perverse on the face of it, and is, therefore, hereby set aside, and bail granted to him is' cancelled. As far as opponent Mir, Jumman was concerned the injury attributed to him was not on the vital part of the body of the injured, and was simple in nature, and, therefore, am of the considered view that his case requires further : enquiry as to whether his case will fall under section 324,P.P.C. or under section 307,P.P.C.,and, therefore, the order in respect of this opponent does not call for any interference, and' the application against him is hereby dismissed. M. Y. H /N‑350/K Petition partly allowed.