1994 P Cr (PLP)

Ss. 561-A & 497(5)

Cancellation of bail

Inherent jurisdiction of High Court can be invoked to prevent abuse of the process of law if release of accused on bail is found to have occasioned injustice. Saffar v. The State 1989 M L D 4164; Gulzar Hussain Shah v. Ghulam Murtaza and 4 others P L D 1970 SC 335 and Amir Qalam Khan v. Superintendent, Central Jail and another P L D 1975 Lah. 1390 ref. M. Ilyas Khan for Applicant. Aleem Akbar M. Shaikh for Respondents Nos.l to

4. Muhammad Sarwar Khan, A.A.-G. for the State.

1. Bail is granted by police.

2. Exemption granted subject to all just exceptions

3. Applicant/complainant Muhammad Ali had lodged F.I.R. No.36/93 at Police Station Gharo, District Thatta on 27-5-1993 under section 325/343/447, P.P.C. and section 337 as amended. He stated that on 26-5-1993 while he was performing his duty at Haleji Link Road, District Council Royalty Naka, his uncle Jaffar came and informed him that the respondents Mumtaz, Shahbaz, Shokoo and an unidentified accused had quarrelled with Shaukat Ali and injured him. Complainant went to Survey No.96 in Deh Gujjo and saw his brother Shaukat Ali lying injured. On inquiry Shaukat informed the complainant that while he was present at the poultry farm, at 9-30 p.m. he saw accused Shahbaz driving a tractor in Survey No.96 while accused Mumtaz, Shokoo and an unknown person duly armed with Lathis standing by the side of the tractor. Injured Shaukat further informed the complainant that he restrained the accused from ploughing the said survey number upon which the accused caused Lathi blows to Shaukat and in particular accused Shahbaz drove the tractor over him with the result that his left leg was fractured. When Shaukat raised cries, Jaffar, Ibrahim and others came running and seeing them, accused ran away. Complainant then took his injured brother to hospital and lodged the report. Respondents Shahbaz Ali and Mumtaz Ali both sons of Ali Muhammad filed Criminal Bail Application No.503 of 1993 before this Court and protective pre-arrest bail was granted to them on 31-5-1993 for a period of three weeks with direction to surrender before the competent Court. Both Shahbaz Ali and Mumtaz Ali appeared before the Sessions Court, Thatta on 10-6-1993 and filed an application for ,pre-arrest bail. Their application was heard by Incharge Sessions Judge, Thatta on 19-6-1993 who rejected the same. All respondents were then arrested. It seems that one Ali Muhammad Sammo, father of respondents Shahbaz Ali and Mumtaz Ali, who is serving as Section Officer in Services and General Administration Department, Government of Sindh, addressed an application to the Secretary to Government of Sindh, Home Department, Karachi on 27th June, 1993, requesting that the enquiry/investigation of the above crime may be entrusted to any honest officer of Crime Branch. This application was recommended to the I.-G. Police, Sindh on 28-6-1993 for transfer of investigation to Crime's Branch or any other investigating agency. The learned AA.-G. on verification of the record pointed out that under orders of the Assistant I.-G. Police the investigation was transferred on 29-6-1993 to Crimes Branch, Karachi and such order was received by Inspector, Yameen Khan on 3-7-1993. On 5-7-1993, the respondents/accused who were in the meanwhile arrested by Gharo Police were released on bail by Inspector, Yameen Khan. The grant of bail to the respondents in these circumstances has been challenged by the complainant through this application. I have heard the learned counsel for the applicant/complainant as well as the counsel for the respondents/accused and the A.A: G. It has been argued by applicant's learned Advocate that two respondents, namely, Shahbaz Ali and Mumtaz AN who had surrendered before the Sessions Court, Thatta for pre arrest bail were taken into custody by police alongwith two others after rejection of the pre-arrest bail application. Because of the influence of Mr. Ali Muhammad Sammo who is a Section Officer, the case was got transferred to the Crimes Branch, Karachi and on the third day of receipt of orders, all respondents were granted bail although the learned Sessions Judge found two of them not entitled to grant of pre-arrest bail. It is next contended that the release of respondents on bail by Inspector, Yameen Khan was not because of any material on record justifying their release but because of the influence and pressure of said Ali Muhammad Sammo a Section Officer. The learned Advocate submitted that under subsection (2) of section 497, Cr.P.C. the Police Officer investigating a case can release the accused on bail if there are no reasonable grounds for believing that the accused have committed a non bailable offence but that there are sufficient grounds for further enquiry into his guilt. This provision according to the learned counsel could not have been pressed into service by Inspector, Yameen Khan after the Sessions Court came to a conclusion that accused had no case for pre-arrest bail. It has next been argued that in such cases where an Investigating Officer has granted bail to the accused the same can be cancelled by this Court under subsection (5) of section 497 of Cr.P.C. Learned counsel was required to further satisfy if bail granted by a Police Officer during investigation of a case could be cancelled under subsection (5) of section 497 of Cr.P.C. The learned Advocate referred to the case of Lakhamsi and another v. The Emperor A I R 1933 Sindh 331 where it was held that in the case of the accused who is released by the police, Magistrate has no power under section 497(5) to commit him to custody. In this case some of the accused were granted bail by the police whose bail was cancelled by the Magistrate. The matter came up before the High Court which set aside the order of Magistrate committing the accused to custody but at the same time made a fresh order committing the accused to custody under section 497(5) of Cr.P.C. This authority is not directly applicable to the present case. Learned Advocate then referred to the case of Saffar v. The State 1989 M L D 4164 where this Court in exercise of its inherent powers under section 561-A, Cr.P.C held that under section 561-A, Cr.P.C., to secure the ends of justice and to rectify an error resulting from incorrect certified copy of F.I.R., recalled bail granting order and dismissed the bail application. Reliance is then placed on Gulzar Hussain Shah v. Ghulam Murtaza and 4 others P L D 1970 SC 335 where it was held that the order cancelling bail passed in absence of accused was a nullity in the eye of law and application under section 561-A, Cr.P.C. recalling such order was competent. The learned Advocate then referred to the case of Amir Qalam Khan v. Superintendent, Central Jail and another P L D 1975 Lah. 1390 where it was held that when Superior Courts refused bail to accused on facts of the case, trying Magistrate was left with no option but to remand such accused to custody. It has lastly been contended that to secure the ends of justice and to prevent the abuse of the process of Court, a High Court in its inherent power under section 561-A of Cr.P.C. could cancel the bail irrespective of such provision being available under section 497(5), Cr.P.C. The learned A.A.-G. frankly conceded that this is a case in which an influential person serving in the Government of Sindh, as a Section Officer, got the case transferred from District Thatta to Crimes Branch, Karachi and immediately on the third day of receipt of the investigation papers, granted bail to all the four respondents who were taken into custody by Thatta Police on the basis of sufficient evidence against them. The learned A.A.-G. stated at the Bar that evidence of two witnesses Muhammad Amin and Mumtaz Ali was recorded under section 164, Cr.P.C. by A.C.M. at Karachi on 4-7-1993 and some other witnesses were examined under section 161 of Cr.P.C. From the evidence of these witnesses the alibi of accused was proved and, therefore, Inspector Yameen Khan released them on bail under subsection (2) of section 497 of Cr.P.C. He has, however, argued that since the bail has been granted by the police the same cannot be cancelled by this Court under subsection (5) of section 497, Cr.P.C. but while supporting cancellation application the learned AA.-G. conceded that this Court in exercise of its inherent jurisdiction under section 561-A of Cr.P.C. could cancel the bail. I have also heard the learned Advocate; spearing for the respondents. It has been argued that the cancellation application should have been filed before the Sessions Judge who declined pre-arrest bail to two of the respondents and that application is not maintainable before this Court. It has also been argued that in transferring the case from Thatta to Crimes Branch, Karachi, no irregularity was committed, as such administrative orders are normally passed in routine. In support of these contentions learned counsel referred to the case the State v. Zahid Rasool 1990 P Cr. L J

340. The rule laid down in this case was that it is desirable that lower Court which has granted bail should first be moved for cancellation of bail unless there are compelling circumstances to bypass the same. The facts of the reported case are different and the same do not apply to the facts of the instant application. The circumstances of the case show that out of the four respondents, Shahbaz and Mumtaz Ali who were granted protective bail by this Court surrendered before the trial Court and moved pre-arrest bail application. By a learned Incharge Sessions Judge, Thatta came to the well-reasoned order the lean conclusion that said respondents were not entitled to pre-arrest bail. Consequently, they both, alongwith two respondents Shaukat alias Shokoo and Ibrahim were taken into custody on the basis of evidence collected by the investigating Officer. The plea of alibi was not suggested by the respondents during investigation before the Investigating Officer of Gharo Police Station. he respondents was that they should have approached the trial Court for bail after arrest and should have pressed into service the plea of alibi and the same under law could have been considered. Instead of plea of alibi an doing so the respondents Nos.1 and 2, because of the influence of their father, who is a Senior Officer in the Government of Sindh got the investigation transferred to Crimes Branch, Karachi and on the third day of receipt of papers, Inspector, Yameen Khan released all respondents on bail. The act of I Inspector, Yameen Khan in releasing the respondents on bail on the basis of hurriedly recorded statements of some witnesses in one day released all of them on bail. This amounted to revision of the order of the Sessions Judge by Police Officer. I am clear in my mind that under subsection (5) of section 497 of Cr.P.C. bail granted to accused by a Police Officer can be cancelled by this Court. Resort could also be had to section 561-A of Cr.P.C. and inherent jurisdiction of this Court can be invoked to prevent abuse the process C of law, if it is found that the release of respondents on bail has occasioned injustice. For all these reasons I allow this application, cancel the bail granted to the respondents. The copy of this order shall be sent to the learned Sessions Judge, Thatta for further action according to law to cause the arrest of respondents. N.H.Q./M-1927/K Bail cancelled.