2003 P Cr (PLP)

ANWAR ZAHIR JAMALI, J.

Through listed application under section 12(2), section 151, C.P.C. read with section 21 of the General Clauses Act, sections 497(5), 561-A and 369, Cr.P.C. the complainant has approached this Court with the prayer that the order dated 21-12-2001, passed in this petition, whereby son of the petitioner namely Noman alias Nomi involved in Crime No.441 of 2001, Police Station Korangi was admitted to bail on furnishing of surety in the sum of Rs.50,000, may be recalled as such order was obtained from this Court by suppression and misstatement of material facts. Learned Additional Advocate-General, Sindh present in Court submits that Noman alias Nomi is accused in Crime No.441 of 2001, Police Station. Korangi, for offence punishable under section 302, P.P.C. and sufficient material is available with the prosecution to connect him with the commission of this crime, but by misstatement made before the Court he was got released on bail. He supports the application moved by the complainant. We have heard learned counsel for the complainant and perused the case record which reveals that on 21-12-2001, Mr. Abbas Ali, learned Additional Advocate-General, Sindh had stated before this Court as under: "The Additional S.H.O. of Police Station Korangi has informed him that till today there is no material with him to show any involvement of the detenu in F.I.R. No.441 of 2001. On the basis of above statement given by the Additional S.H.O., of Police Station Korangi learned Additional Advocate-General concedes for passing of an order for release of the detenu on bail. " It was on the basis of above statement that accused Noman son of Nizamuddin was ordered to be released on bail. As according to Mr. Sarwar Khan, learned Additional Advocate -General, Sindh there is sufficient material available with the prosecution to connect the accused Noman alias Nomi, with the commission of Crime No.441 of 2001, Police Station Korangi, we deem it fit and proper to modify the order dated 21-12-2001 in the following terms:-- Ball granted to the accused Noman alias Nomi son of Nizamuddin in Crime No.441 of 2001, Police Station Korangi vide order dated 21-12-2001, shall be considered as protective bail to the accused up to 26-8-2002, where-after it shall cease to have force. In the meantime accused Noman son of Nizamuddin, if he so chooses, may approach the trial Court for grant of bail. In case such application is moved before the trial Court, same shall be decided strictly on merits without being influenced by any order passed in this petition. In case accused Noman son of Nizamuddin fails to appear and surrender before the trial Court within the aforesaid period, surety furnished by him before this Court shall stand forfeited and the trial Court will be free to take appropriate action against him in accordance with law. At this stage Syed Sarfraz Ahmed, Advocate for the petitioner has appeared in Court and stated that listed application, being an application under section 12(2), C.P.C. is not maintainable in law. We are not impressed by this submission of the learned counsel for the reason that listed application is not an application moved only under section 12(2), C.P.C: but many other provisions of law have also been applied. Besides it is the substance of the application rather than its form which is material for deciding its fate. Before parting with this order we may further observe that jurisdiction of this Court under Article 199 of the Constitution cannot be exercised in aid of injustice or to distract some proceedings pending before Court of law. Once it has come on record that Noman alias Nomi son of the petitioner is accused in Crime No.441 of 2001, Police Station Korangi he has to face the proceedings before the trial Court. H.B.T./S-271/K Order accordingly.