Find a Lawyer

Criminal Miscellaneous Application No. 926 of 1978, heard on 17th September 1979.

--‑‑S. 497 (5)‑Single Judge of High Court granting interim bail and later confirming same on ground of injured prosecution witness being no longer under treatment and such witness also having been himself involved in a double murder case in another city‑Contention that case of another city against injured witness having no bearing on case in hand against respondent, same could not have been taken into con sideration in granting bail to respondents ‑Another Judge of High Court, held, would be acting as a Court of appeal if he reviewed said order on ground of Single Judge ought not, to have considered a particular aspect of case and such ground could be urged only before Supreme Court.

---‑S. 497 (5)‑Cancellation of bail‑Single Judge while granting bail observing injured, prosecution witness being himself accused of murder and being not under medical treatment for any of injuries alleged to have been caused to him by petitioner‑Such grounds having been urged as fresh grounds before Judge and bail granted on such grounds‑Matter of bail being a matter of discretion with High Court, Single Judge, held, competent to grant bail and another Judge of High Court not in a position, to sit in judgment over his orders.

S.. S. Shaikh for Appellant.

Mir Nawaz Khan for Respondents.

Date of hearing : 17th September, 1979.

S. S. Shaikh learned counsel for the applicant has argued that the bail arch has been granted to‑the respondents Hidayatullah arid Saeedullah by High Court on 16th May, 1978 should be cancelled as the respon dents had committed a‑dastardly. attack on injured Ismail and had caused him 9 bullet injuries and he was under medical treatment for about 2 months. The. offence in this case had taken place on 19th November 1976 and it was alleged to have been witnessed by Haji Rahim Gul and of course the injured Ismail, who was ambushed at 8 p. m. and was given 9 .bullet injuries out of which 8 have .been declared to be dangerous. The F. h. R. was recorded on the same . day at 9‑15 p. m. whereby Haji Rahim Gul had named the assailant as related to him by the injured. The respondents' application for bail before arrest was ‑rejected on 4th March 1973 on merits. 1 Tote High Court has also rejected their bail application on 29th April 1977. However, on 12th September', 1977 the Additional Sessions Judge granted bail to the respondents on‑‑the ground of 8 months delay in the holding of the trial as ‑by that time only one witness Capt. Ishaque had been examined who was not an eye‑witness. The injured moved .the High Court for .cancellation of bail which‑ was granted by High Court on 1st April 1978. The High Court cancelled the bail granted by the Additional Sessions Judge on the ground that the injured was still under treatment. I may here take note of the fact that the injured Ismail had beer accused of an offence of double murder in Peshawar. The bail granted to him by the Magistrate at Peshawar was cancelled by the Additional Sessions Judge, Peshawar on 20th April 1978 on the ground that Ismail was not suffering from any disease which needed specialized treatment outside the Jail. The present respondent, thereafter moved an application for bail before the High Court and attached the copies of the Medical Board and the order of the Additional Sessions Judge in respect of injured Ismail along with their application for bail. The late Mr. Justice Jamaluddin H. Ahmed granted interim bail on 9th May 1978 and confirmed the same on 16th May 1978 on the ground that the injured was no longer under treatment and he was. himself involved in a double murder case in Peshawar.

Mr. S. S. Shaikh has argued before me that the case at Peshawar against injured Ismail has no .bearing on the present case against the respondent, and therefore, the same should not have been .taken into con sideration by the learned‑ Judge. I am afraid that I will be‑ acting as a Court of Appeal if I review the order of the. learned Single, Judge of the High Court on the ground that he should not have considered the Particular aspect of the case. This ground could only be urged before the Supreme Court and not before me. Even the. late Judge could not: himself review that‑order on that basis.

Another ground taken by Mr. S. S. Shaikh is that the seriousness of the injuries deserved a serious consideration at the hand of the learned Single Judge and in such cases bail is not ordinarily granted in such matters: Mr. Shaikh referred to number of rulings. of the Supreme Court and High Court where bail which had been granted to those accused per sons who had caused serious injuries upon injured and particularly in case of injuries by fire‑aria, the bail had ,been cancelled. This again could be a ground which could 1e urged before the Supreme Court in a petition and not in the High Court itself, and I find that the learned Judge has based his order on fresh material which had been produced before him and which had been procured after 1st April 1978 in respect of the treatment of the injured Ismail. The learned Judge has observed that‑ injured Muhammad Ismail is himself‑accused of murder and is in Jail and that be is no under medical treatment for any 'of the injuries alleged to have been caused to him by the applicant. These were the fresh grounds which had been urged before the Honourable Judge and he has been pleased, to grant bail on those grounds and since the matter of bail is the matter of dis cretion with the High Court, therefore he was competent to grant bail and I am not in a position to sit in judgment over his order. The application is therefore dismissed.

Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.