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Criminal Miscellaneous No. 2195 of 1970, decided on 24th April 1970.

S. 497(3)‑‑Bail, cancellation of‑Contention that petitioners' approaching High Court direct without Invoking jurisdiction of Court of Session in first instance, was improper‑Held, ordinarily High Court Insists on approach to Sessions Court in first instance, nevertheless, High Court not legally barred to entertain such petition direct‑Eye‑ball of victim, completely destroyed and accused named as assailant in F. I. R.‑Magistrate, held, did not exercise his discretion properly in granting bail‑Bail cancelled.

Sher Afzal and others v. The State 1968 S C M R 1388 ref:

Rashid Malik for Petitioner.

Nawazish Ali for Respondent.

Muhammad Shafi has put in this petition under section 497(5), Cr. P. C., praying this Court that the bail granted to Muhammad Siddiq by the Special Railway Magistrate, by his order dated 25th February 1970, be cancelled and he be committed to judicial custody.

2. The facts are these: On 12th of February 1970, a case under section 307/326, P. P. C., was registered against the respondent at Police Station Naulakha, Lahore, at the instance of Muhammad Rafi, brother of victim Muhammad Shafi, wherein he stated that the respondent who was armed with a knife struck a knife blow on the left eye of Muhammad Shafi and had completely destroyed his eye‑ball. The respondent was arrested but was bailed out by the learned Special Railway Magistrate, who passed the following order :‑

"Heard. The prosecution has failed to produce the papers. It is stated that there is no injury of serious nature. Participa tion of the accused is open to question. Therefore Mohammad Siddique accused be released on furnishing security in Rs. 5,000."

3. In response to the notice Mr. Nawazish Ali, Advocate, has appeared along with the respondent. He argued that the petitioner had approached this Court without invoking the jurisdiction of the Court of Session. He further contented that the allegations against the respondent were false. On the other hand, learned counsel for the petitioner urged that the learned Special Railway Magistrate has improperly exercised his discretion and that the ground on which the respondent was allowed bail did not exist and the order passed by the learned Special Railway Magistrate was manifestly wrong, and that this Court had wide power to cancel the bail. He further urged that the Court of Session and this Court has concurrent jurisdiction and as the case was of glaring abuse of powers he has approached this Court direct. He cited Sher Afzal and others v. The State (1968 S C M R 1388).

4. Ordinarily, it is insisted by this Court that the Sessions Court should be approached in the first instance, but there is no legal bar to entertain a petition direct and to pass an appropriate order. In the case in hand, as the. parties are present, I would not like to remit this case to the Court of Session on technical ground and proceed to decide it on merits.

5. The medical report placed on the record shows that the eye‑ball of the left eye of Muhammad Shafi had been completely destroyed. Muhammad Shafi is present in Court. I have seen him. He has lost his left eye‑ball completely. The respondent has been named by the complainant as the assailant in the F.I. R.

Considering all the circumstances of the case, I am of the view that the learned Magistrate has not exercised his discretion properly. The result is that the bail granted to Muhammad Siddique respondent by the learned Magistrate is cancelled. He is present in Court and has been ordered to be taken into custody.

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