1980 P Cr (PLP)

(f) Criminal Procedure Code (V of 1898)‑

‑‑Ss. 497 & 498‑Powers under S. 498, Cr. P. C.‑Ancillary to powers under S. 497, Cr. P. C.‑‑.Sessions Judge or High Court have no higher power or less limited jurisdiction than powers or jurisdiction of trial Court under S. 497, Cr. P. C.‑High Court or Court of Session coming to conclusion of bail being granted wrongly, it would not only be justified but would indeed be duty bound to recall order of bail subject to provisions contained in S. 497, Cr. P. C.‑No further inquiry, held, called for in cases of cancellation of bail than that Contemplated by S. 497, Cr. P. C, in matter of grant of bail. Abdul Fateh Memon for Applicant. Azizulluh K. Shaikh for Respondents, Ali Bux Laghari for the State, Date of hearing ; 4th February, 1979. This is an application under section 497(5), Cr. P. C. filed by Ghulam Nabi (hereinafter referred to as the Complainant) seeking cancellation of an order of the Assistant Sessions Judge, Larkana dated 5th January, 1978 whereby respondents Ahrizad Hussain and Ghulam Mustafa (hereinafter referred to as the accused), were admitted to bail in a case under section 307/34, P. P. C. This application for cancellation was submitted on 7th March, 1978, viz. two months after the order of bail was passed. On the several dates of hearings when this case was fixed before the Court adjournments were sought either by consent or at the instance of one or the other party. I have now heard Mr. Abdul Fateh Memon for the applicant/ complainant, Mr. Azizullah K. Shaikh for the respondents/accused and Mr. Ali Bux Leghari for the State, The learned counsel for the State has supported the application.

2. The brief facts of the case are that on 28th December, 1977 at about 7.45 p. m. the complainant was sitting with witnesses Abdul Razzak, Ali Dost and Didar Hussain at his otak in Shahdadkot. One Muhammad Nazir Punjabi came there and asked the complainant to go to the accused who were calling him. When the complainant went there the accused took him inside the room and abused him. Accused Ghulam Mustafa was at that time armed with a pistol and he fired the same at the complainant which shot grazed the skin on the bridge of the nose whereafter accused Ahmed Hussain snatched the pistol from accused Ghulam Mustafa and fired at the abdomen of the complainant. Both the accused started running from the otak and they were followed by the complainant who was raising cries which attracted witnesses Didar Hussain Abdul Razzak and Ali Muhammad. These witnesses also saw the accused running away and identified them. The complainant was brought on a cot to Shahdadkot Police Station where a report was lodged at 8.15 p. m. viz. within 45 minutes of the incident. The complainant was then sent to the Medical Officer in the tehsil hospital at Shahdadkot where he was found to be having two injuries on his person. While one out of two injuries was contused wound 1/4" x 1/4" x bone deep over the bridge of‑the nose with clinical fracture of the nasal bone, the other was a circular punctured type of wound 1/4" in diameter with inverted margins and slight blacken ing of edges. The latter injury was situated on the unblicus. Exploration was done by the Medical Officer and the bullet was extracted from the abdomen. Both these injuries were described as grievous injuries but while the injury on the abdomen was stated to be from a fire‑arm, the injury on the nasal bone was opined to have been caused by a hard blunt substance. During the investigation Police examined the three witnesses, Didar Hussain, Ali Dost and Abdul Razrak. Certified copies of the Police state ments of these witnesses have been placed on the record and those disclose that each one of those witnesses have substantially corroborated the complainant. The mashirnama of the scene of occurrence was prepared and inside the room of the Otak blood marks were found and one pistol empty of 25 bore was also secured by the Police. A pistol was also pro duced by accused Ahmed Hussain before the Police as the pistol with which Ghulam Nabi complainant had been fired at. This pistol was seized and found to be bearing 25 bore. Two live bullets were also found in the pistol. Muhammad Nazir who had come to call the complainant to the otak of the accused has also been examined by the Police arid he has also givers the same version of the incident.

3. An application for bail was made in the Court of the first Assistant Sessions Judge, Larkana on 2nd January, 1978 viz. within four days of the incident and besides the other grounds it was stated in the appli cation that the accused were students respectively in B. A. and Inter (Arts) classes and further that the examination of the accused Ghulam Mustafa was to take place on 7th January, 1978, By an order dated 5th January. 1978 the Assistant Sessions Judge released the applicants on bail in the sum .of Rs. 10,000/‑. The order granting bail could be termed to have been passed on two fold grounds namely: that the injury on the nose was opined by the doctor to have been caused by some hard blunt substance and to such extent the allegation of a pistol having been used for causing that injury was discredited and secondly that since the accused were students and one of them had to appear in the examination.

4. The offence under section 307, P. P. C. is punishable with imprisonment for life. Section 497, Cr. P. C. imposes a bar on the grant of bail un less there were no grounds‑to believe that there were grounds to substantiate the charge or that the accused were sick persons or children. While grant of bail in cases not punishable with death or imprisonment for life appears to be a rule, the rule in cases punishable with death or imprisonment for life is that bail shall be refused unless the Court is of the view that there are no grounds to believe that the accused has committed that offence. Considering both the situations together there is no difficulty in stating that bail in heinous cases has to be refused unless the material that is available before the Court does not indicate complicity of the accused in the crime. What is meant by the words "grounds to believe" that the accused is 1 guilty of the offence is, that the material available with the prosecution is such that can persuade a Court to a belief in the veracity or truth of the allegation. Applying the test to the facts of the present case I find that the applicants are named in the First Information Report, they were seen running away from the place of occurrence immediately after the shots were fired, they had called the complainant to the place where the incident had occurred, there were blood spots and an empty at the scene and the weapon of offence was produced by accused Ahmad Hussain before the Police Officer during the investigation of the case. On the existence of this material it cannot be said that there were no grounds to believe the accused to be guilty of the offence for which they were being tried. It may on the other hand be stated that in fact there was adequate material to indicate the complicity of the accused in the crime, what to speak of absence of grounds to believe that they were guilty. What is more that no evidence had been recorded and perhaps even the charge sheet had not been submitted in the Court when the applicants were admit ted to bail. The act of the complainant was one of daring and the presence of an injury on the abdomen of the accused gives a fair indication that if the complainant had died on account of the injury the offence would have been one of murder.

5. Mr. Azizullah K. Shaikh has, however, contended that the report of the Ballistic expert had not been received and therefore the case called for further enquiry within the meaning of section 497 (2), Cr. P. C. I am afraid this argument is without substance because even if that evidence was not available at the time of grant of bail, the circumstances could not operate to the detriment of the prosecution because bail was granted within 3 or 4 days by which time even the weapon had not been sent to the expert. However, even if this piece of evidence is excluded from consi deration, still the other circumstances of the case clearly indicate that there was a sufficiently strong case against the accused what to speak of there being grounds to believe that they were guilty of offence. Mr. Azizullah K. Sheikh has next contended that one out of two injuries was a contused wound which according to the Medical Officer has been caused with .a hard and blunt weapon. The learned Advocate contended that if that opinion of the medical officer was correct then the prosecution story would be discredited. The medical certificate shows that this injury resulted in a fracture. Such injury could have been caused even if the bullet grazed against the bridge of the nasal bone. In any case, the Medical Officer has yet to be examined and the matter would require further exploration.

6. Mr. Azizullah K. Sheikh has next contended before me that the accused were young men who were students. It is stated that both the accused are college students and that fact by itself would show that they must be in the early twenties and therefore could not be termed to be children. The examination of the accused must also have concluded. This ground, therefore, cannot hold good after the conclusion of the exami nation.

7. Mr. Azizullah K. Sheikh has further contended that since bail had been granted by the trial Court there should be compelling circum stances like an attempt to tamper with evidence or a desire to go under ground, before an order of cancellation was passed. This in my view is not correct law. The question for consideration is whether the grant of bail was a proper or legal order. 1n offences punishable with death or imprisonment for life the discretion to grant bait is indeed very narrow and subject to riders that are contained in section 497, Cr. P. C. Sec tion 497(5), Cr. P. C. does not enable the High Court to cancel bail granted g by the Sessions Judge and in such regard powers under section 439 or 561‑A Cr. P. C. are also available. The criterion of justification in the matter o grant of bail or cancellation can never be different for if the grant of bail is not justified the cancellation of bail would generally be justified subject to the exceptions contained in section 497, Cr. P. C. In the case of Emperor v. Pritam Singh (A I R 1932 Lah.433) it was stated as follows :‑ "Mr. Sethi has contended first that this Court has no jurisdiction either under section 497 or section 439, Criminal P. C. to inter fere with the discretion of the Sessions Court. In this view I am unable to concur. Had the learned Sessions Judge refused to admit Pritam Singh to bail, this Court would undoubtedly have been moved in the matter and could, had it thought fit, have passed an order in favour of Pritam Singh. Similarly, to my mind, it is within the jurisdiction of this Court to consider whether or not the order of the Sessions Judge passed under sec tion 497, Criminal P. C. should or should not be maintained and also whether under the provisions of subsection (5), section 497, Criminal P. C. Pritam Singh should be allowed to continue at large."

8. The sole criterion according to me is whether the grant of bail is an order justified under section 497, Cr. P. C. and if a conclusion to the contrary is arrived at cancellation would always be justified. The powers under section 498, Cr. P. C. are also ancillary to the powers under section

497. Cr. P. C. so that a Sessions Judge or the High Court does not have any higher powers or less limited jurisdiction than the powers or jurisdiction to of the trial Court under section 497, Cr. P. C. If a High Court or the Court of Sessions comes to the conclusion that bail had been granted wrongly it would not only be justified but would indeed be duty bound to recall the order of bail subject to provisions contained in section 497, Cr. P. C. in that behalf. I am clear in my mind that no further enquiry is called for in cases of cancellation of bail than what is contemplated by sec tion 497, Cr. P. C. in the matter of grant of bail.

9. I have discussed the merits of the case in the earlier part of this order and I am of the view that a strong prima facie case had been mad out against applicant/accused Ahmed Hussain. In regard to applicant/ accused Ghulam Mustafa the Medical Officer has given a certificate that the injury on the bridge of the nose of the complainant could have been caused by a hard and blunt substance. In the result I cancel the bail of respondent/accused Ahmed Hussain but allow respondent/accused Ghulam Mustafa to continue on same bail. Order accordingly.