P L D 1977 Supreme Court 602 (PLP)

In the first order made by the High Court on 11-2-1977 bail was allowed to the petitioner mainly on the ground that the only part assigned to. him was that he shouted the proverbial Lalkara but had not taken pact in the actual firing which killed the deceased. However, in the subsequent order of cancellation of bail, the same learned Judge took note of the fact that the petitioner was armed with a revolver when he raised the Lalkara, and that he was alleged to have come out of his house with his co-accused who were: also armed. Leave to appeal is sought on the following grounds ; (a) That the High Court had no power to review its earlier order granting bail, as that was a final order within the meaning of section 369 of the Code of Criminal Procedure; (b) That the bail cool) not be cancelled even under subsection (5)of section 497, Cr. P. C., as bail had been allowed by the High Court under section 498 of the Code; and (c) That on merits the learned Judge in the High Court was in error in thinking that the Lalkarta attributed to the petitioner was anything mote than the proverbial Lalkara, which is usually mentioned by the complainant pasty to implied to the innocent elders of the accused party so as to deprive them of their assistance in prosecuting their case. After hearing the learned counsel for tile petitioner at some length, I have formed the view that there is no merit in any of these submissions. The contentions that the order granting bail to the petitioner was a final order within the meaning of section 269 of the Cr. P. C. and could not be reviewed by the High Court at a subsequent stage, and that the bail could not have been cancelled under subsection (5) of section 497, Cr. P. C. after it had been allowed by the High Court under section 498 of the Code, are clearly misconceived. At one time the different High Courts in this sub-continent were inclined to hold that the provisions for bail contained in section 498 of the Code of Criminal Procedure were entirely distinct from those in section 497 -thereof; that the High Court in directing the release of a person accused of a non-bailable offence in the subordinate Court on bail acted u-)de section 498, and that the order was not one under section 497 so that it might be canceled under subsection (5) of that section. The view gained ground that the High Court was not specifically empowered by section 498 to cancel bail granted by itself but the recourse can be had to the inherent powers preserved in the High Court under section 561-A of the Code for cancellation of the bail allowed by it. But the Federal Court of Pakistan in Gushtashab khan v. The Crown (PLD 1956 FC 117) made a radical departure in discarding dais view that had prevailed amongst the High Courts. In thus forming its opinion the Court relied on the observations of the Judicial Committee in Jai Ram Day v. Emperor (AIR 1945 PC 98)I to the effect that the Scheme of Chapter 39 of the Code of Criminal Procedure is that sections 496 and 497 thereof provide for the granting of the bail to accused persons before trial, and the other sections of the Chapter deal with matters "ancillary or subsidiary to that provisions." In the light of these observations the Federal Court held that the power conferred upon High Courts and Courts of Session try the latter portion of section 498 was in the nature of a corollary or rider to the power conferred upon Courts in general by section

497. In other words, a High Court or Court of Session, when it takes action to grout bail does so under section 496 or 497, read with section 498, and must not be assumed to be drawing its capacity from a source wholly distinct from the two earlier section . Therefore, in the opinion of the Federal Court the earlier view that action by a High Court or by a Court of Session acting otherwise than as a Court of original criminal jurisdiction, for the granting of bail was quite distinct from action to grant bail under section 497. could not be sustained and such action by a High Court or Court of Session must b?: regarded as falling within section

497. It would seem that in this connection the High Court and the Court of Session have no less power to cancel bail granted by them in a case pending before a Magistrate than the Magistrate himself possesses, for the simple reason that all the three Courts derive their power from the same statutory provision, namely, subsection (5) of section 491. la conclusion the Federal -Court held that the correct view of the matter was that a Court of Session acting to cancel bail granted by another Judge, also acting as a Court of Session. did not act under section 498 but under sections 4)7 read with section 498 of the Code of Criminal Procedure, so that the powers conferred by subsection (5) of section 497 were available to a High Court or a Court of Session when it granted bail its a case before a subordinate Court. Even prior to the above pronouncement by the. Federal Court of Pakistan, Tayabji, C.J. in his painstaking and elaborate judgment in Karim Bux Jatoi v. Crown (P L D 1952 Sind 43) had propounded a similar view, He observed that there was a great deal of authority in support of the proposition that when a Sessions Court or a High Court grants bail to a person accused of a anon-bailable offence, while the investigation, enquiry or trial was proceeding against the accused before the police or a subordinate Court, the release on bail was not a release ;'under this section" within the meaning of these words in clause (5) of section

497. Bat ire his opinion this view was erroneous and do longer tenable after pronouncement of their Lordships of the Privy Council in Jairam Das v. Emperor (AIR 1945 P C94). In leis opinion there is nothing in sections 496 and 497 to show that these sections were intended to apply only to the investigating police and the Courts holding an enquiry or trial. On the contrary the language used makes it clear that they were intended to contain the entire law relating to the granting and cancelling of hail to accused (not convicted) persons, which had to be applied by all the Courts alike. Section 498 confers on the High Court and the Court of Session the jurisdiction to hear and grant, inter alia, applications for bail made by persons accused (not convicted) of non-bailable offences, bait when disposing of these applications those, Courts have necessarily to apply the relevant law applicable in such cases which is contained in the provisions of section

497. Any order regarding bail by such a Court is therefore necessarily an order granting a release "under this section" within the meaning of these words in clause (5) of section

497. It must be regarded as a legal. anomaly, if not an: absurdity, that there should be one law for the -Magistrate compelling him to keep an accused person in custody under certain circumstances, and another law for the Sessions Court or the High Court under which the accused person might under the same circumstances be regarded as entitled to bail. Another anomaly would be that while bail could always be cancelled when the accused was released on bail by the police or the trial Court, no Court could tinder any circumstances cancel hail if the accused was admitted to bail by the Sessions Court or the High Court, not even when it peas clearly necessary to cancel bail in order to ensure that the trial was properly conducted and the ends of justice were not defeated. The view that section 498 of the Code is to be read as "ancillary or subsidiary" to sections 496 and 497 is also supported by the majority judgment in Mohammad Ayub v. Mohammed Yaquob and another (PLD 1966 SC 1003) followed by this Court in Vohzr.Tma3 .4:,tarn and others v. The State (PLD1967SC539). On this view, in law the High Court is empowered under the provision contained in subsection (5) of section 497 of the Code to cancel the bail earlier canted b itself under section 498 read with section 197 of the granted by Code. According to section 369 of the Code no Court when it has signed its "judgment", shall alter or review the same except to correct a clerical error. But strictly speaking an order allowing or can-felling bail does not amount to a judgment within the meanings of this section. In Gulzar Hassan Shah v. Ghulam Murtaza and 4 others (PLD 1973 SC 335) this Court has hold that an order passed under section 498 of the Code is not a "judgment" within the meanings of section 369 of the Code so as to operate as a bar against its alteration or review. In this connection the Court further observed that the general principle of finality of judgment no doubt attaches to the decisions or orders of the High Court passed in criminal cases. Nonetheless, in the opinion of the Court in rare and exceptional cases the 1Sigh Court has inherent power to revoke, review or alter its own earlier decisions in cases which were not governed by sections 369, 424 and 430, with a view to give effect to any order under the Code or to prevent abuse of the process of the Court or otherwise to secure the ends of justice. At the same time the Court further observed that it was not possible to enumerate the circumstances in which the inherent power can be invoked. In that case before the Supreme Court it was conceded that application for bail can be made from time to time on fresh material. But in the context of the observations made by the Supreme Court this concession does not necessarily connote that in the absence of any fresh material under no circumstances a second application for bail or for the cancellation of bail already allowed can be entertained. In Mian Mahmood Ali Kasuri and another v. The State ( PLD 1963 SC 478) the facts were that the appellant were prosecuted under section 124-A.P.C on the basis of resolution alleged to have been passed at a meeting of the National Democratic Front which was allegedly attended by them. In that case a bail application under section 498 of the Criminal Procedure Code was made on behalf of the appellants before the High Court. At the hearing the senior counsel for some of the appellants appealing before the Court expressed his agreement to the incorporation of a condition ire the bail bond to the effect that they will undertake not to deliver any speech of the kind reflected in the resolution in question. After the conditional bail was thus granted the accused persons repudiated the undertaking given by their learned counsel at the hearing and they declined to avail themselves of the conditional bail granted in consequence. In the circumstances, another application was then moved in the High Court for their bail unconditionally. In bar of the second petition before the High Court it was urged by the learned Additional Advocate-General that what the appellants sought would amount to a review of the previous order passed in a criminal matter and this was not permissible under the law. The point w-a however, overruled on the ground that the second petition could be treated as a trash application for bail and If it was found that the condition subject to which the bail was granted was not warranted by law, a fresh bail order omitting the condition could be passed. In Mohammed Ayub v. Mohammad Yaqub and another this Court observed that the bail, granted by the learned single Judge to the respondent, on submission of grounds almost identical to those which were mentioned in his previous application and which was rejected by another single Judge, was not justified. No reasons were mentioned by the learned single Judge for the grant of bad in a case of murder in which the commitment order Lad already been passed, though subsection (3) of section 497 prescribes that an officer or a Court, releasing any person on bail under subsection (1) or subsection (2) of that section, shall record, in writing, his or its reasons for so doing. There were no circumstance, brought out in respondent's favour, which could justify leniency, on the ground of age, or sex or health, within the meaning of the proviso to subsection (1) of section

497. Continuing the Court further observed that the case also did not fall within the exceptions visualised in subsections (2) and (4) of section

497. There were affidavits, filed in support of the petition for cancellation of bail in the High Court alleging that the respondent was attempting to tare-per with the witnesses for the prosecution. This was denied in a counter-affidavit. Considering however, that there had been an order of commitment passed, that no fresh grounds bad been urged for bail, before the second learned single judge, over and above those considered by the first Judge and that "no exceptional circumstances existence, justifying the grant of bail", this Court held that the exercise of discretion by the accord learned Judge in allowing. hail was open to exception, on the legal plane. In my respectful opinion these observations do go to show that it really rests era the propriety or impropriety in each case for the grant or cancellation of bail on a second application, otherwise there does not appear to be any absolute legal bar against it. In exceptional circumstances and possibly in the circumstances justifying leniency, on the ground of age, or sex or health, within the meaning of the proviso to subsection (1) of section 497, a second application for bail by the accused would be competent, in case he had perchance failed to rely on them while his first application was dismissed. In this connection the reported authority in Mohammad Aslam and others v. The State is also to the point. In that case the appellants were accused of the offence of murder. On 25-8-1965 a learned Judge of the High Court allowed bail to the accused when on the appraisal of the medical evidence a plea was advanced before him that the offence, it any, committed fell primarily within the purview of section 326, P. P. C. This order for bail ,was subsequently cancelled by the same learned Judge of the High Court and it was thereupon contended that the appraisal of the medical evidence continued to hold good and therefore, notwithstanding the subsequent order of committal there was no jurisdiction to cancel their bail. On appeal the Supreme Court observed that there was some force in the contention raised that all the medical evidence had remained unaltered there was no justification to cancel the bail but it did not necessarily mean that order granting bail was in the circumstances of the case properly made. In conclusion the: Court held that toe order dated 25-8-1966 granting bail to the appellants was this not warranted in law and "rightly set aside by the same Judge by the High Court." This authority lends support to the view that in case an order granting bail was not properly made then the same learned judge of the High Court was not debarred from cancelling it even on the game material before him. However, in cancelling the bail previously allowed by him he must not act arbitrarily bat with judicial discretion and circumspection. In doing so he should not lightly interfere with the order already passed by him with due regard for the general principle of finality that usually attaches to orders passed by the High Court in criminal cases. ' As to the merits of the cases, it is true that there is enmity between the parties, and accordingly the possibility of false implication cannot be ruled out. However, at this stage we find that the allegations against the petitioner are that all the five assailants emerged from the house of the petitioner, and all of there were armed. If this allegation is correct, then the presence of common object on the part of the petitioner is prima fact made out. it is also alleged that after two of the co-accused had fired upon the deceased with their weapons, the remaining accused also fired with their respective weapons, and this would clearly show that accordingly, to the allegations made in the first information report the petitioner also fired at the deceased, although he is not named specifically, nor any injury is attributed to him. The phrase "the remaining accused" would appeal to include the petitioner. In these circumstances, it does not appear to be a case where there are reasonable grounds for believing that the petitioner is guilty of as offence punishable with death or transportation for life. The question whether the allegations made by the Prosecution are eventually proved or not is one to be decided by the trial Court, and we cannot pre-empt its function in the present proceedings. For the foregoing reasons, I consider that the petitioner's bail war rightly cancelled by the High Court, and no justification is made out fog our interference in the matter. The petition is, therefore, dismissed. DORAB PATEL, J.-The question in this petition is of the proper construction of subsection (5) of section 4977 of the Criminal Procedure Code. There is no doubt that bail can be cancelled under this subsection on the basis of material or grounds which were not available when bail was allowed and according to Mr. Shaukat Ali the subsection was intended to apply only to such caves. My learned brother Akram, J., has rejected this submission and I also do not agree with it. My learned brother is of the view that section 369 of the Criminal Procedure Code does not apply to bail orders but that, nonetheless, the principle of finality attaches to such orders. I respectfully agree with both these propositions, and I would observe here that the question before us is covered by an authority of this Court to which my learned brother has referred. In Gulzar Hassan v. Ghulam Murtaza (P L D 1970 S C 335) after pointing out that section 369 of the Criminal Procedure Code did not apply to orders passed under section 498 of the Criminal Procedure Code, Waheeduddin, J., observed "I am conscious of the fact that general principles of finality of judgment attached to the decision or order of the High Court passed in criminal cases. But it wilt not apply to casts when an order is passed without jurisdiction or without giving any opportunity to the parties of being heard". His Lordship further observed that in rare and exceptional cases "the High Court has inherent power so revoke, review or alter its own earlier decisions . . . . : ' And it was held that Guzlar Hassan's case was an exceptional case. because the Court had itself violated, the rule audi alteram partem. Now whilst I would not presume to give a definition of rare and exceptional cases, I would only observe that not every erroneous order cars be tie-tied as a rare and exceptional cases, and the real question for determination in this petition is whether the High Court's order of 11-2-1977 granting bail suffered from such art illegality that it came within mischief of the rule laid down by the full Court in Gulzar Hassan's case. As the reasons which led the learned Judge to review on 23-2-1977 his order of 11-2-1977 have been set out in my learned brother's order, I would only observe that if the order of 23-2-1977 is correct, then it follows that the earlier order of 11-2-1977 sag passed erroneously or negligently. But clan a Court cancel the bail granted by it merely because it has acted erroneousely or negligently in granting bail? After all the Legislature has provided a remedy for challenging orders both of the Sessions Courts and of the High Courts, and on the other hand it is significant that successive Constitutions have expressly conferred only on this Court a power to review its own orders. Therefore, in my humble opinion, the principle of finality attaches to bail orders, and that is the ratio of the Full Court's Judgment in Gulzar Hassen's case, then it follows that bail cannot be cancelled merely because an order granting bail is erroneous. I now turn to the instant case. The material on which bail seas cancelled was before the learned Judge when he had granted bail twelve days earlier. But as in granting bail, the learned Judge has referred to the enmity between the parties, I have to point out that the petitioner and others in their applications for ball, which had been allowed on 11-2-1977, had expressly referred to this enmity. Additionally, Mr. Shaukat Ali submitted that the impugned order was erroneous, because the statements of tire witnesses under section 161 of the Criminal Procedure Code were tainted by enmity, therefore, they were not fit to be accepted without corroboration, and as there was no corroboration of these statements, because the empties recovered from the place of occurrence did not match with the firearm alleged to have been used by the petitioner, the submission was that the impugned order was illegal. The learned Judge has rejected these submissions in passing impugned order, and I will not examine there, lest my observations prejudice the case of the parties in the Sessions Court. However, even if it is assumed for the sake of argument that the order granting bail was erroneous, the question was of the Court's discretion and in view of the material relied upon by Mr. shaukat Ali the grant of bail was a possible exercise of the Court's discretion. Learned counsel also submitted that the petitioner's case was supported by this Court's judgment in Amir v. The State (P L D 1972 S C 277). Once again lest 1 may prejudge the case o1.' the parties I will refrain from examining the question whether the petitioner's case is supported by this judgment and I will only observe that learned c3unsel's submission merited serious examination. Accordingly even if the order granting bail was erroneous it cannot be described as a perverse or grossly unreasonable exercise of the Court's discretion, therefore, in my humble opinion, it did not suffer from such an illegality that a departure from the principle of finality in decisions in criminal cases was necessary or justified. However. in holding that the High Court was justified in recalling its order of 11-2-1977, by learned brother has relied on this Court's judgment in Mahmood Ali Kasuri's case but in my humble opinion, this judgment is distinguishable on two grounds. In the fast place, Mr. Mahmood Ali Kasuri had repeated his application for bail; and this Court held that lie was entitled to do so. No reasons were given for this view which perhaps had reference to the Common Law practice according to which in habeas corpus cases the detenu was entitled to go from Judge to Judge of the King's Bench Division in order to obtain his release. This practice was some time allowed by the High Courts as is apparent from this Court's observations, in Muhammad Khan v. Muhammad Aslam and others (1971 S C M R 789). Secondly, Mr. Mahmood Ali Kasuri had taken objection to the fact that his learned counsel had, without his instructions accepted conditions to the grant of bail which he as a political leader was not willing to accept, therefore, he had filled a second application for the grant of bail subject only to the conditions prescribed in law. Now whilst we do root convict a mar for murder measly because he pleads guilty, the detenu in a political detention is entitled to contend that his advocate must follow his instructions. On this ground also, this case is distinguishable. The other judgment relied upon by my learned brother is that of Mohammad Aslam and others v. The State and for the purpose of this order it is sufficient to stage that several accused had been arrested on a charge for murder. Some of them had applied for bail, and apparently their contention was that even on the prosecution evidence the case against them could fall only under section 326 of the Penal Co&. The High Court accepted this contention and granted bail and as in the instant case, an application for the cancellation of bail was filed, which was allowed. 'her order cancelling bail was challenged in this Court in an appeal on the ground that "as the medical evidence had remained unaltered, there was no justification to cancel the bail". Yaqub Ali, J. (as he then was now the Chief Justice) rejected this plea with the observation that tie argument " . . . . does not necessarily mean that the order granting bail was in the circumstances of the case properly made". And, as this Court dismissed the appeal, my learned brother has taken the view that bail can be cancelled on the same material on which it has been granted. Now apart from the fact that this would be contrary to this Court's view in Mohammad Ayub v. Mohammad Yaqub and another (P L D 1966 S C 1003), in dismissing the appeal, Yaqub Alit J., examined Mohammed Ayub s case aced other pronouncements of this Court L and then observed. "The High Court is thus not to examine the merits of the prosecution case or the plea of defence in finding whether reasonable grounds appear for believing that the accused person has been guilty. otherwise any expression of opinion about the merits of the case by the High Court may dispose of the case before the trial has started." In my humble opinion these observations contain the true ratio of the case; because the earlier order granting bail had been written in a manner which could not but prejudice the cage of the prosecution in the Sessions Court.; and I may further observe that in Galzar Hassan's rain also, this Court had repeated the warning that High Courts should not make observations in bail orders which are likely to prejudice the case of the parties in the Sessions Courts. Obviously a bail order which contains unnecessary observations likely to prejudice the case of the prosecution or of the accused in the Trial Court would be in flagrant violation of the law repeatedly declared by this Court, and such an order would suffer from a gross illegality which would justify its review, even though it involved a departure from the principle of the finality of decisions. But in the instant case the order of 11-2-1977 granting bail was written in a very circumspect manner, therefore, even on the assumption that it was erroneous, it did not suffer from such an illegality as would have justified a departure from the principle of the finality of decisions in bail orders. Accordingly, with the utmost respect, I cannot agree with my learned brother's order, bit in accordance with the majority view of the Court, the petition must be dismissed. S.A.H. Petition dismissed.