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Criminal Review Petition No. 19‑R of 1979, decided on 27th October 1979.

(On review from the judgment and order of this Court dated 21‑5‑79 in Cr. Petition No. 86 of 1979).

Criminal Procedure Code (V of 1898)‑

‑‑ S. 497 read with Constitution of Pakistan (1973), Arts. 185 (3) & 188‑Bail‑Plea of self‑defence claimed by accused fully brought to notice of Court (while hearing earlier petition)‑Fact that reference was pointedly made to contents of F. I. R.‑Does not mean that plea of accused was overlooked‑Court reaching its conclusion on assessment of circumstances of case appearing on record including plea of self‑defence‑Held, no justification made out for review of previous order (canceling bail)‑Supreme Court Rules, 1956, O. XXVI.‑[Review].

Khalid Javed Gillan v. The' State P L D 1978 .S C 256 and Muhammad Hassan and others v. The State 1979 S C M R 345 distinguished.

Muhammad Ismail Chaudri, Senior Advocate assisted by Sh. Abdul Karim, Advocate‑on‑Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing : 27th October, 1979.

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This petition seeks a review of the order of this Court dated the 21st of May, 1979, by which bail allowed to the14.14 petitioner by the High Court by its order dated the 6th of November, 1978, during the pendency of a murder case, was cancelled. The relevant facts are that the petitioner was accused of having caused. the death of one Muhammad Ashraf on the 13th of May, 1978, at a place called Chowk Qasaban in Lodhran town, owing to jealousy over a young handsome boy known as Japani Guddi. The deceased was given a stab blow on the left side of the chest. In the First Information Report, it was stated that the second blow sought to be inflicted by the petitioner was prevented by the deceased on his left hand, and that during the scuffle the accused Muhammad Anwar had also sustained some minor injuries.

Bail was sought on the ground that the petitioner had suffered at least seven injuries out of which four were caused with a sharp‑edged weapon and the rest with a blunt weapon, and that several residents of the locality had deposed before the Investigating Officer that the petitioner had acted in the exercise of his right of private defence. However, these reasons did not appeal to the learned Additional Sessions Judge, Multan, who refused the grant of bail vide his order dated the 6th of August, 1978 observing that the F. I. R. had been promptly lodged wherein the details of the occurrence were mentioned, and this was not the stage to determine whether a right of private defence had, indeed, accrued to the petitioner. This order was, however, set aside by a learned Judge of the Lahore High Court on the ground that in view of the statements made by certain residents of the locality regarding the nature of the incident, it was at least a case of further inquiry. The complainant's application for cancel lation of bail was dismissed by the same learned Judge by his order dated the 28th of January, 1979.

When the matter of cancellation of bail came up before this Court, we took the view that from the narration of events in the F. I. R. it became abundantly clear that the incident had taken place in two phases ; first in the evening on the 12th of May, 1978, when the matter was patched up by the intervention of other people ; and the second on the next morning when the petitioner had armed himself with a dangerous knife and struck a blow on a vital part of the body of the deceased, which proved fatal. It was added that "in this state of the record it could not be said at this stage that there were no grounds for believing that the respondent was guilty of an offence punishable with death or imprisonment for life".

Mr. Muhammad Ismail Chaudri, learned counsel for the petitioner, submits that there is a patent error on the face several residents of the locality, giving a version of the incident favourable to the petitioner, were not taken into account at all by this Court, and reliance was placed only on the contents of the First Information Report. The learned counsel points out that there were incised injuries on the right and the left palms of the petitioner as well as on the back of the left arm, thus clearly show ing that he had first been attacked by the deceased, and he reacted only by way of self‑defence. Mr. Ismail Chaudri contends, on the authority of Khalid Javed Gillan v. The State (P L D 1978 S C 256) and Muhammad Hassan and others v. The State (1979 S C M R 345) that in these circumstances this is a fit case for grant of bail by way of review.

In the first mentioned case it was held by this Court that a decision on the question of bail under section 497 of the Code of Criminal Proce dure involves pre‑judgment on evidence appearing prima facie at stage of seeking bail, and there was no restriction in the section on the Court's power to assess evidentiary value of material placed before it. In the second case relied upon by Mr. Ismail Chaudri it was observed that contentions aiming at securing a re‑examination of the entire case on merits cannot be allowed to he raised in review, but some justification could be made out for review in case any aspects of evidence were not considered in the judgment under review. On the basis of these two judg ments, Mr. Ismail Chaudri feels that it is open to us to reassess the effect of the defence plea raised on behalf of the petitioner, and specially the fact that the affidavits of the residents of the locality in support of that plea were available on the record.

There can be no cavil with the propositions laid down in the two cases referred to by the learned counsel for the petitioner. If, indeed, this Court has omitted, inadvertently or otherwise, to take due note of the petitioner's plea that he had acted in the exercise of the right of private defence, then some justification would be made out for review ; yet this is not the case here. Even though there is no detailed reference to the statements said to have been made by certain residents of the locality before the Investigating Officer, but the plea is fully noticed, namely, that the petitioner was claiming that he had acted in the exercise of the right of private defence, and that he had sustained some injuries during the course of the incident at the hands of the deceased. These facts were brought to the notice of the Court by the learned Advocate‑on‑Record appearing for the petitioner. It is true that reference was pointedly made to the contents of the F. I. R., but that does not mean that the plea of the accused was overlooked. The Court reached its conclusion on its assess ment of the circumstances of the case as then appearing on the record, including the plea of self‑defence. Accordingly, no justification is made out for review of our previous order. The petition, therefore, fails and is hereby dismissed.

Petition dismissed.

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