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Criminal Miscellaneous Application No. 785 of 1976, decided on' 18^th October 1976.

‑‑ S. 497(5)‑Bail‑Cancellation of‑Sessions Judge rejecting applica tion for grant of bail to accused and Supreme Court also expressly refusing bail to co‑accused on sole consideration of his having made a judicial confession‑Order of Additional Sessions Judge grant ing bail to accused found to be patently wrong‑=Bail cancelled and accused ordered to be arrested and. remanded to custody.

Muhammad Suleman Memon, Addl. A: G., Sind for the State.

Abdul Latif Channa for Respondent.

Date of hearing : 13th October 1976.

This application under section 497 (5), Cr. P. Code has been moved on behalf of the State, for cancellation of bail granted on 15‑5‑1976, by the IInd Additional Sessions Judge, Hyderabad to the respondent Hamzo son of Hamid Ali Bhatti. An application for cancellation had earlier been made by the District Public Prosecutor, Hyderabad, in the same Court but that was also rejected by an order dated 28‑5‑1976. Although this application was filed on 10‑7‑1976, it has been heard now, as the respondent was served with notice of the application, only in the month of September.

The F. I. R. in this case was filed by one H. C. Bahadur Khan, on 10‑2‑1975 at Nausbabero Feroze P. S. alleging that he and witnesses H. C. Sohta Khan, H. C. Karim Bux and P. C. Laldino had seen the murder of Faiz Mohammad Panwhar in the morning at 10‑15 a.m. and had caught hold of two accused, one armed with a pistol and the other with a hatchet. Two others, who were also armed with hatchets had however succeeded fin their escape, but they could be identified. According to his report withesses Mohammad Nawaa Panwhar and Haji Abdul Latif Panwhar had also come up on cries and had seen the incident. They had identified the

two accused to be Bilawal bhatti and Nawab Bhatti. They had further disclosed that the accused bad a dispute with the deceased over land, which was the motive of this crime.

The respondent who was one of the two who escaped was arrested on 13‑2‑1975 and was put to identification test on the following day, in which six eye‑witnesses picked him out. He thereafter made a judicial confession before the Resident Magistrate, Kandiaro.

After investigation, an application for bail was moved on his behalf, and some other co‑accused, which was rejected by the Sessions Judge. Nawabshah on 38‑3‑1975 after hearing the parties and considering the merits of the case. These facts included the identification test through six eye witnesses and retracted judicial confessions. Regarding the case of the respondent, he observed:‑

"Accused Hamzo son of Khan Mohammad and Hamao son of Hamid Bhatti have made judicial confessions implicating themselves as well as the rest of the accused. Besides Hamzo son of Hamid Bhatti has also been picked out in identification test, which was held immediately after his arrest by no less than six P. Ws."

It may be mentioned that according to this order it was accused Hamzo Bhatti and not the respondent who had made an application complaining that the confession was the result of maltreatment at the hands of police. The learned Judge had however considered the argument that the confessions were retracted but found that these were corroborated by one P. W. Abdul Fateh who had seen the makers at the Otaq of accused Din Mohammad besides evidence of motive.

The respondent did not move the High Court but his other co‑accused, being dissatisfied with the order of the Sessions Judge, Nawabsbah, repeated their application in this Court but that was also dismissed on 21‑4‑1975. They then approached the Supreme Court where bail was granted to those who had been implicated on account of their names appearing in the confession made by the respondent and Hamzo son of Khan Mohammad Bhurt, but Hamzo Bhurt himself was refused bail as he had made a confession. The order of the Supreme Court is dated 12-5‑1975.

It appears the case was transferred from Nawabshah and came to be fixed for trial before the Additional Sessions Judge, Hyderabad, and he passed the impugned orders referred to above.

The learned Additional Advocate‑General, Mr. Mohammad Sullaiman Memon, in support of this application contended that the Additional Sessions Judge, Hyderabad could not in law and propriety grant bail to the respondent when the same bad been refused after fully considering the merits of the case. No new fact had come on the record, thereafter. He referred to the reasons given by the Additional Sessions Judge for taking a different view of the matter which are in these terms.

"No doubt the learned Sessions Judge had rejected the bail application of the accused applicant but the learned Judge had not considered the impact of the delay of more than 24 hours in getting the judicial confessions recorded, and the fact that no overt act whatsoever has been attributed to the accused applicant. There has been delay of more than a year in commencement of trial of the accused."

The learned Additional Advocate‑General argued that this in effect amounted to revising the order of the Sessions Judge, which was the function only of a supervisory Court. In his submission a passing reference to delay in com mencement of the trial could not empower the Additional Sessions Judge to pass the impugned order, without examining that question in the context of the arguments submitted by the prosecution, and giving a specific finding on that aspect of the case. Moreover, the grant of bail was not based on the factum of delay of a year. He referred to A I It 1933 Sind 367, a D. B. case, to support the view that even the High Court had declined to interfere with the order of the Sessions Judge who had refused bail after considering all the circumstances of the case.

Learned counsel then referred to the order in Cr. Bail Application No. 846/76, by which I had rejected the application of Hamzo Bhurt on the ground that the Supreme Court had earlier not granted his prayer, as he had confessed. The order of the Supreme Court being earlier, the Additional Sessions Judge was fully conscious of the view taken and he had even refused the bail application of Hamzo Bhurt, although made on the sole ground of delay of one year. The learned Additional Advocate‑General referred to the impugned order in Criminal Bail Application No. 846/76 which in fact clearly shows that the Additional Sessions Judge had rejected the ground of delay and had refused bail to Hamzo Bhurt because of the order of the Supreme Court, and also because no other material had come on record to justify the grant of bail.

In this situation it was obvious that the Additional Sesssions Judge had taken two conflicting views in deciding the applications of two persons, on the same facts and the state of law. Mr. A. Latif Channa, the learned counsel for the respondent, being thus confronted with this difficulty, resorted to an argument based on the interpretation of section 497 (5), Cr. P. Code which was that this Court had no jurisdiction to pass order under the above said provision because the State had already exhausted its remedy by making a similar application before the Additional Sessions Judge, which was rejected.

Now this argument is prima facie misconceived, and a bare reading of section 497 (5) would be sufficient to repel the same. The powers of the High Court to interfere are by no means taken away by this provision, which itself is an empowering provision.

The learned counsel then relied upon the case of Mst. Maryam v. State (P L D 1961 Kar. 731) in which a retracted judicial confession recorded 24 hours after arrest had been ruled out. He therefore contended that the Additional Sessions Judge was justified in considering that the impact of delay of more than 24 hours in recording the confession was not considered by the learned Sessions Judge who had refused bail to the respondent. But obviously the Additional Sessions Judge should have left this to be done by a Superior Court and should have been careful to note the view taken by the Supreme Court in accepting the very confession which he had chosen to reject.

In the circumstances of this case, when the case had not proceeded and the state of facts was the same which was considered by the Sessions Judge Nawabshah in rejecting the bail application of the respondent, and also when their Lordships of the Supreme Court had expressly refused bail to the co‑accused Hamzo Bhurt on the sole consideration of his having made a judicial confession, which position is shown to have been accepted by the Additional Sessions Judge also. I think: that the impugned order passed by the Additional Sessions Judge is patently wrong. He could rectify the error when an application under section 497 (5), Cr. P. Code was moved before him; particularly when additional circumstance of one more witness Paryo having turned as approver, was also brought to his notice; but that application was also rejected.

I find this to be a fit case in which the application should bb allowed and the respondent be ordered to be arrested and remanded to custody.

Order accordingly..

S. Q. Bail cancelled

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