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Criminal Miscellaneous No. 2098/13 of 1980, decided on 30th Septem ber, 1980.

-- S. 497(5)-Bail, cancellation of ---- Court allowing bail equally competent to cancel same-Jurisdiction of High Court and Sessions Court in matter of cancellation of bail-Concurrent-No cogent reasons given by petitioner as to why Sessions Court granting bail bypassed and application for cancellation of bail directly submitted in High Court-Petition dismissed.

Mian Abdur Rashid for Petitioner.

Muhammad Naqi for the State.

Walayat Hussain Haidri for Respondents Nos. 1 to 3.

The respondents were allowed bail by the learned Additional Sessions Judge, Rawalpindi, by his order dated 21st June 1980, in a case under section 302/34, P. P. C. registered against them and Muhammad Azam, co-accused for the murder of complainant's brother, namely, Abdur Rasool.

2. As per medico-legal report, one sharp-edged weapon injury suffered by the deceased on his chest on the inner part of his left shoulder, was the cause of his death. This injury was attributed to Muhammad Azam, co-accused. So far as respondent No. 1 is concerned. according to the F. I. R. he was armed with a chhuri and caused a blow to the deceased over his head. Similarily, respondent No. 2 allegedly inflicted a blow to him with the butt of the deceased's revolver. The seat of the injury was also on the head. The role assigned to respondent No. 3, is that he held the deceased in japhha, to facilitate the murder.

3. The learned Additional Sessions Judge maintained that the accused were going from the bus stand to their village. He thus took the view that it is not a premeditated murder and the matter is open for further inquiry,

In support of this application, the petitioners learned counsel has submitted that all the accused had the common intention to cause death of the deceased. He urged that there was a motive for this occurrence. In the submission of the learned counsel, the learned Additional Sessions Judge examined the case from a limited angle and various factors to be considered while disposing of the bail matter were ignored by him. On the strength of some case-law, it was argued that the respondents were not at all entitled to the concession of the bail.

4. The propriety of the submissions of the petitioner's learned counsel need not be examined, for under section 497 (5), Cr. P. C. the Court which allowed bail is equally competent to recall it and re-commit die respondents to the custody. I feel that upon the language of section 497 (5), Cr. P. C.' the petitioner should have first moved the Court concerned for cancellation of the bail. Of course, the jurisdiction of the High Court and the Sessions Court, in the matter of cancellation of the bail is concurrent but no cogent reason has been given as to why the Sessions Court be bypassed and the application for cancellation of the bail entertained directly by this Court.

5. In this view of the matter, the criminal miscellaneous application is dismissed. The petitioner may move the Court concerned in the matter if so advised.

Petition dismissed.

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