P L D 1967 Karachi 267 (PLP)

This application has been filed under section 439, Cr. P. C., against the order of the Additional Sessions Judge, Karachi, dated the 27th of September 1965, by which the application of the applicant filed under section 438, Cr. P. C., was rejected. This application relates to a case filed against the applicant and l l others under sections 302/109, 148, and 387/149 read with section 120B, P. P. C. It arises out of the following facts.

2. One Ismail Lalji, maternal‑grandfather of accused Amir Ali Ladiwalla, is said to have deposited Rs. 1,40,000, with Captain Amir Ali. the Estate Agent for Pakistan of His Highness the Aga Khan. Captain Amir Ali denied that this sum was ever deposited with him by Ismail Lalji. On the basis of certain documents Amir Ladiwalla thought that Captain Amir Ali was taking advantage of the death of Ismail Lalji and was misappropriating the alleged sum of Rs. 1,40,

000. He conse quently arranged a meeting of some of the members of the community in the house of one Sultan for the settlement of this issue. Captain Amir Ali did not attend this meeting. The applicant and his father Ghulam Ali, who are related to Amir Ali Ladiwalla, attended the meeting where the deceased, a staunch supporter of Captain Amir Ali, refuted the allegation and stated that Captain Amir Ali was not liable for the payment of Rs. 1,40,

000. It is alleged that Ghulam Ali and his son, Shaukat Ali, the applicant, got annoyed and stood up and said that if the matter was not being settled they would settle it themselves. The allegation of the prosecution further is that a conspiracy was thereafter hatched pursuant to which services of some Makranis were engaged with a view to have the murder of Captain Amir Ali committed. Captain Amir Ali is also said to have received threatening telephone calls on account of which he approached the authorities and got police guard for his protection. On the day of the incident some of the accused persons who are alleged to have committed the murder of the deceased went on the shop of accused Ghulam Ali where he and his son, the present applicant, were sitting. This happened before the murder was committed. In the talk that transpired between them the words that were overheard by the witnesses examined in this case were `Waliani, Amir Ali and police'. The case of the prosecution also is that after this talk Ghulam Ali and the applicant came to see off the remaining accused up to the footpath outside their shop from where the accused went in two different taxis and committed the murder of the deceased. A report was immediately lodged with the police. After the usual investi gation was completed, all the twelve accused were challaned for offences mentioned above.

3. During the pendency of the committal proceedings an application for bail both for Ghulam Ali and his son, Shaukat Ali was made which was granted by the Sessions Judge, Mr. Kadir Nawaz S. Awan, as he then was. Against the order passed by the Sessions Judge granting bail to these two accused an application was moved for cancellation of their bail in the High Court which was granted by an order passed by Mr. Justice Raymond. The question of consideration of bail was, however, left open with the result that another application sometime thereafter was moved before Mr. Ghulam Hyder K: S. Pir, Sessions Judge, Karachi, who accepting the application granted bail to them. Against this order of the Sessions Judge an application for cancellation of bail was moved which came up before me for hearing. On hearing elaborate arguments addressed by the advocates of the parties I rejected that application, without expressing myself on the evidence on record, mainly on the ground that the cancellation of bail of the accused would prejudice their case on merits. I, also, made it very plain in my order that the views expressed by the learned Sessions Judge should not be considered by the Committal Court in forming its own independent opinion on the evidence. I had also said that the Committal Court would be free to consider the feasibility of remanding the accused to custody if it was of the opinion that there was sufficient material on the record for establishing a prima facie case against them.

4. The learned Magistrate who committed the accused in his detailed order came to the conclusion that a prima facie case was established against all the accused on the evidence brought on record. Against the 'present applicant he considered the evidence to be sufficient for establishing a case of conspiracy to commit murder. On this view of the matter, the Committal Court, as I have already said, committed all the accused to the Court of Sessions and remanded the present applicant to custody. Ghulam Ali was, however, allowed to remain on bail on the basis of a certificate dated the 2nd of July of 1965, given by the Civil Surgeon, West Pakistan Hospital. This certificate, inter alia, disclosed that the remaining of Ghulam Ali in Jail would be detrimental to his life.

5. An application on behalf of the applicant was thereafter moved before the Sessions Judge, Karachi, under section 438, Cr. P. C., for a reference to be made to the High Court for granting bail to him. The application was pressed mainly on two grounds, (1) that the Sessions Court having granted bail to the applicant and the High Court having rejected the application for cancellation of that bail; the Commital Court had no power under section 220, Cr. P. C. to remand him to custody, and (2) that the evidence brought against the applicant did not establish prima facie case of conspiracy against him.

6. So far as the first question is concerned, the learned counsel for the applicant before the Additional Sessions Judge before whom the case came on transfer, placed reliance mainly upon the case of Noor Muhammad v. State (P L D 1964 Lah. 464). The view taken in this case was that section 497 (5), Cr. P. C., confers power of cancellation of bail on the Court that has granted bail. The further view, taken, was that the Committal Court had no power to cancel bail under section 220, Cr. P. C., and remand the accused to custody, in the event of bail having been granted by a superior Court. The learned Additional Sessions Judge before whom this case was placed said "I agree that on a superficial view of my Lord Justice I. B. Khamisani's order will seem to be inconsistent with the ruling". This view of the learned Additional Sessions Judge seem to be wrong. The learned Additional Sessions Judge did not perhaps read the case carefully. If he had done so he would not have been of the view mentioned above. Ortcheson, J, who gave the decision in the case of Noor Muhammad v. State referred to above, came to be seized of the matter because there was a difference of opinion between the two learned Judges of the Peshawar Bench of this High Court on the question of interpretation of section 220, Cr. P. C. One view expressed was that section 220, Cr. P. C. gives this power of remanding the accused to custody to the Committal Court subject to the provisions contained in section 497, Cr. P. C. and that the words `subject to the provisions contained in section 497, (sic) mean the provisions contained in section 497 (1) only. The second view expressed was that a bare reading of section 220, Cr. P. C., would mean the conferment of power an the Committal Court regarding the accused being remanded to custody subject to what is contained in whole of the section 497 including its subsection (5). In other words the dissent of the learned two Judges of the Peshawar Bench was on the question whether the Committal Court had the power to remand accused to custody under section 220, Cr. P. C., when bail had been granted by a superior Court. For these two different views tilt cases of Sheobachan v. State (I L R 30 Pat. 431) and Seoti and others v. Rex (A I R 1948 All. 366) were relied upon. The view taken in the Patna case was that the Committal Court had the power to remand an accused to custody under section 220, Cr. P. C., regardless of whether the bail had been granted by the superior Court or not merely because the view taken in that case was that section 220, Cr. P. C. was controlled by section 497 (1) only. The view taken in they Allahabad case, however, was that the Committal Court had no power to cancel the bail and remand the accused to custody under section 220, Cr. P. C. in case the bail had been granted by superior Court. This view was founded upon the ground that section 220, Cr. P. C. was controlled by whole of the section 497 including its subsection (5). On a case being referred to Ortcheson, J., he accepted the view propounded in the Allahabad case and held that the Committal Court had no power to cancel the bail under section 220, Cr. P. C. if it had been granted to accused before their commitment by a superior Court. There can be no disagreement absolutely with the view expressed by Ortcheson, J. in the Lahore case mentioned above. Ortcheson, J has not said one word about the position that would emerge out of a case where bail granted by superior Court is a temporary one. The decision given by Ortcheson, J. is based upon the Allahahad case mentioned above in which while deciding the question of the powers of the Committal Court about remanding the accused to custody a further question had also been decided that the Committal Court would have the power under section 220, Cr. P. C., to remand accused to custody although bail had been granted to the accused by the superior Court before their commitment provided the superior Court had in its order permitted the Committal Court to do so. The relevant observations which deal with this question are reproduced hereunder:‑ "We accordingly hold that the Magistrate had no power to cancel the bail which had been granted to two of the applicants by the High Court and to the third applicant by the Court of Session at Mathura. The matter would, no doubt, have been different if the High Court or the Court of Session had specified in the order passed by it that the order granting bail to the accused was a temporary one and that it was open to the Magistrate to reconsider the matter at a certain stage in the proceedings." The case of Noor Muhammad v. State having been based entirely upon the Allahabad case would be deemed to have adopted the observations reproduced above. In my order under which I had rejected the application for cancellation of bail, I had made it very plain that the bail granted to the accused was a temporary one and that it would subsist till either further evidence was brought on the record or the stage of commitment of the accused had been reached. The effect of my order granting bail to the accused, was therefore a temporary one and the order ipso facto stood withdrawn at the time of the commitment of the accused. The power to grant bail or remand them to custody would then be deemed to have been vested in the Committal Court under section 220, Cr. P. C. The application of subsection (5) of section 497, Cr. P. C., could under these circumstances not be attracted and, as such an argument that the Committal Court had no power to remand the accused to custody could not validly be advanced. The learned counsel for the applicant has also in unequivocal terms stated that the position of law taken by the learned counsel before the Sessions Court on this question was wrong and could not be sustained by him. The Committal Court as well as the Sessions Judge bad, therefore, full power to consider the question of grant of bail to the applicant under sections 220 and 497, Cr. P. C.

7. Having disposed of this legal question, the next question that remains to be decided in this matter is whether bail to the applicant should or should not be granted. The Committal Court has in its order come to the conclusion that there is a prima facie evidence for commitment of the accused on charge of conspiracy to murder and has, therefore, remanded him to custody. The learned Additional Sessions Judge has also in his order said 'that iii view of the fact that the applicant has been committed to the Court of Sessions on a serious charge of conspiracy to murder, he should not be granted bail. The learned counsel for the applicant has not argued that there is no evidence at all against the applicant in respect of the charge on which he Las been committed. His only argument is that the evidence brought on record is not sufficient for either the commitment of the applicant or his ultimate conviction. If I were to deal with his arguments I will have to go into the evidence and express myself one way or the other which will prejudice the case of one party or the other. To grant an application of bail at this stage on the ground that there is no prima facie evidence when the Committal Court has been of the view that prima facie case has been established against him will be giving an indication to the Sessions 'Court to decide the case in a particular manner. Merely because I did not want to express myself one way or the other or to give even an indirect indication to the Committal Court as to what my views on evidence were, I had rejected the application for cancel lation of bail granted to the applicant by the Sessions Judge earlier. I had also made it clear in my order that the views expressed by the Sessions Judge should not in any way fetter the discretion of the Committal Court in forming its own opinion about the prima facie nature of the case. Under these circumstances, I think it will not meet the ends of justice if I discuss the evidence and express myself one way or the other and thereby prejudice the case of one party or the other.

8. On this view of the matter, I do not think it worthwhile to allow the revision application and grant bail to the applicant. The revision application is consequently dismissed.

9. Since there are as many as twelve accused involved in the case the Sessions Judge, is directed to fix this case at a very early date and dispose it of maximum within about two months time, if the case is not disposed of within that period 'the accused are at liberty to move an application for bail before the Sessions Court who will hear it on merits and dispose it of in accordance with law. K. B. A. Petition dismissed.