1993 PCr (PLP)

Syed Ayyaz Zahoor for Petitioner. M. Zafar for Respondent No.1. Raja M. Afsar A.-G. for the State. Date of hearing: 20th August, 1992. Petitioner on 7-5-1992 made a report to Police Station Chaman that while polling of Local Bodies Election was being held at Ladies Polling Station established in Primary School Boghra Road, 17/18 persons attacked him causing several injuries. Petitioner alleged that Ghulam Farooq son of Haji Jalat Khan (respondent No.7) armed with daggers was amongst the assailants. Medical Officer, Civil Hospital Chaman issued certificate which contained following details: -- Injuries. Incised wound and muscle deep on upper lip. Traima/swelling on left cheek bleeding/mouth. Weapon. Sharp. Remarks. Patient ref. to S.P. Hospital, Quetta after first and given in emergency.

2. Accordingly petitioner was shifted to Sandeman Civil Hospital, Quetta. Medical Certificate finally issued from Quetta indicates that injury near the lip was of grievous nature. Concerned police after completion of investigation has submitted challan before Sessions Court, Quetta. Ghulam Farooq (respondent No.7) applied for bail which was granted to him by Assistant Commissioner Chaman vide order dated 9-6-1992. -Petitioner feeling aggrieved moved an application before Additional Sessions Judge III, Quetta seeking cancellation of bail granted to respondent No.7 and other co-accused. Said application was, however, rejected on 20-7-1992. Present petition is directed against above-referred decisions, of both the Courts below.

3. Syed Ayyaz Zahoor, Advocate for petitioner Mr. M. Zafar counsel for respondent Ghulam Farooq and learned Advocate-General Balochistan were heard. Firstly it was emphatically argued that learned Additional Sessions Judge III, seriously erred in rejecting petition for cancellation of bail, on the assumption that private parties could not move such application. Learned subordinate Judge, to supplement his stand has relied on following observations in case Nazar Muhammad v. State 1977 P Cr. L J

277. Once the accused person is admitted to bail, he cannot be deprived of his liberty without there being tangible evidence to the effect that he misused that liberty to the prejudice of due administration of justice. The provision regarding cancellation of bail cannot be made available to private parties to satisfy their grudges against each other or to use as a means of taking their vengeance. Of course in case where there is reliable evidence that the accused was misusing the liberty to divert the course of justice the Court would be competent to deprive him of that privilege. I am, therefore, clear in my mind that the reports constitute merely allegations by private individuals, the veracity of which was not above board as no evidence was produced in support of the facts, before the learned Sessions Judge, I also find no justification for cancelling bail of the applicant for his non-appearance at the time of hearing of the applications he was represented by counsel and there appears to be no specific direction given to him to that effect.

4. It appears that learned trial Court has misconstrued the import of above report. Factually it aims at restricting and discouraging tendency of misconceived applications of private persons which may be motivated with mala fide desire of merely satisfying grudges; vindicating their vengeance; or causing harassment to accused person. It may further be noticed that plain reading of section 497(5), Cr.P.C. concerning cancellation of bail, as well as revisional jurisdiction conferred upon the Courts under Cr.P.C. does not place any embargo on the private persons in pointing out grave improprieties committed by subordinate Court. Therefore, any person primarily interested in the prosecution of case against the accused cannot be restrained from knocking, the door of justice. It cannot be overlooked that public prosecutors at times I show indifference to challenge decision which may otherwise be defective. Therefore; outright exclusion of aggrieved person from approaching Court of law in pointing out, gross illegalities, misexercise of powers or arbitrary assumption of jurisdiction by the trial Court can be detrimental to effective administration of justice. Learned Advocate-General also unequivocally confirmed that right of private party though is controlled, yet not ousted in the proceedings drawn under Criminal Procedure Code. For the above reasons, I am inclined to hold that impugned order of Additional Sessions Judge III, Quetta completely depriving the private party for bringing grievance concerning cancellation of bail, is devoid of, lawful authority and negates principle of justice.

6. As regards merits, referring to observation in cases (i) Pirdad v. Muhammad Umar and another 1992 P Cr. L J 122 and (ii) Afzal and others v. The State 1992 P Cr. L J 403 it was canvassed that prosecution evidence clearly establishes heinousness of offence committed by Ghulam Farooq, therefore, his bail ought to be cancelled. On the other hand Mr. M. Zafar, Advocate strenuously opposing the petition argued, that- medical certificate constitute either Shajah-i-Khaf1fah or at best Shajah-i-Khafifah, but complainant has tried to exaggerate the accusations which does not justify cancellation as rightly observed in the impugned order. He stressed hard that main object was to cause embarrassment to respondents for vindicating political grievance. Learned Advocate-General, however, supported impugned order and opposed this petition on merits.

7. Carefully scrutinising the evidence and rival contentions, I am satisfied that case of further enquiry within the purview of section 497(2), Cr.P.C. exists. Therefore, unless glaring irregularities materially affecting proceedings or patent improprieties vitiating impugned decision are pointed out, revisional jurisdiction cannot be sought in every case of mere procedural irregularities, routine, defects, or technicalities. Circumstances so far reflected from record do not warrant interference in the matter. Case-law referred by learned counsel for petitioner also has no applicability. Accordingly subject to observation in para. 4 petition is dismissed at this stage. However, during trial if evidence is brought on record, petitioner shall be competent to move the trial Court, who shall consider question of cancellation or otherwise, on its own merits without being influenced by observation made hereinabove. N.H.Q./428/Q Petition dismissed