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Criminal Miscellaneous No. 202 of 1984, decided on 3rd June, 1984.
--S. 426 - Bail cancellation of--Bail granted under S. 426, Cr. P. C., held, could hardly be cancelled for lack of legal provision.
-- S. 497(5)-Bail, cancellation of - Bail granted, held, could be cancelled by same Court as cancellation would not amount to review of earlier order.
1982 P Cr. L J 713; P L D 1981 S C 235; 1981 S C M R 734; P L D 1967 S C 539; P L D 1956 F C 117; 1978 P Cr. L J 320 and 1981 S C M R 35 ref.
-- S. 497(5)-Penal Code (XLV of 1860) S. 302-Bail, cancellation of-Name of accused appearing in F. I. R. assigning him specific role-Medical evidence also supporting version given in F. I. R.-- Accused knowingly absconding for more than four months-Prima facie case under S. 302, P. P. C., made out--Bail cancelled, in circumstances.
Sh. Iftikhar Ahmed for Appellant.
Gul Zaman Khan for Respondent No. 1.
M. A. Memon A. A. G. for the State.
Dates of hearing: 12th, 16th April, 13th, 20th May and 3rd June, 1984.
Shaukat Ali has filed application under section 497, subsection (5), Cr. P. C. for cancellation of bail granted by this Court vide Criminal Bail Application No. 1000/83, dated 7th January, 1984 to respondent Abdul Hassan alias Hannan son of Mian Gul who is being tried alongwith other accused for the offences under section 302/34, P. P. C. by IInd Additional Sessions Judge, Karachi. (Sessions Case No. 1033/83).
2. Briefly stated the prosecution case is that Liaquat Ali was working as Compounder in Younas Clinic and two Pathans namely Noor Hassan alias Hannan and Koka used to live in the same street. One day prior to the incident at morning time cousin of Liaquat namely, Shamsher Ali had quarrelled with those Pathans. On 2nd July, 1983 at about 2.00 p.m. Liaquat was coming from his clinic to his house when he reached the corner of the street where Noor Hassan alias Hannan and Koka were standing. Noor Hassan fired at him with a revolver with intention to kill him. He fired three shots out of which one fire bit him on his forehead and two were missed. 1n the meanwhile Shamsher Ali and Zafar Ali reached there who removed Liaquat to the Police Station Landhi, where he lodged the report, under section 307/34, P. P. C. at 2.15 p.m. (Crime No. 183/83). Subsequently Liaquat died and case was converted to section 302/34, P. P. C.
3. Respondent applied for bail before IInd Additional Sessions Judge, Karachi who by his order, dated 7th December, 1983, rejected his application. He then filed bail application before this Court and bail was granted by Mr. Justice Z. C. Valiani. This application for cancellation of bail was also admitted by him, on 4th March, 1984 order is reproduced here:-
"The contentions raised in the above application require considera tion. Admit. Notice."
In the meanwhile, Mr. Justice Z. C. Valiani retired and this appli cation has been placed before me. It is contended that in previous application, by which bail was granted, the important aspects of the case were not pointed out during the course of arguments by defence as well as prosecution.
4. Mr. Ch. Iftikhar Ahmed learned counsel for the applicant has raised the following contentions:-
(1) That injured himself has lodged the F. I. R. within 15 minutes of the incident wherein he referred to his first incident, which is a motive due to which Liaquat was murdered.
(2) Liaquat who was injured and he lodged the complaint in which he clearly stated, that Noor Hassan alias Hannan had fired thrice at him and one fire hit him on his forehead.
(3) That respondent had moved earlier bail application for bail before arrest as well as application for bail after arrest but he has not taken any ground about earlier police statements on the basis he sought bail before this Court.
5. Mr. Iftikhar Ahmed has submitted that there is no bar for cancellation of bail which was granted by the same Court and on this point he has referred to cases reported in P L D 1977 S C 602, P L D 1967 S C 539, P L D 1956 F C 117, 1970 S C M R 786, 1978 P Cr. L J 321, P L D 1981 Kar. 488, 1981 S C M R 61, 1981 S C M R 35 and 1981 P Cr. L J. (sic)
6. Mr. Gul Zaman Khan, Advocate appearing for the respondent has stated that the name of applicant Abdul Hassan is not mentioned in the F. I. R. The witnesses in the police statement recorded by A. S. I. Abdul Malik have not implicated the applicant therefore bail has been rightly granted. He has referred to the cases reported in P L D 1978 S C 256,'T L D 1981 S C 235, 1981 S C M R 734, 1982 P Cr. L J 718, 1981 S C M R 534, 1984 P Cr. L J 149, 1982 S C M R 1006 and 1980 S C M R 203.
7. Mr. M. I. Memon, A. A. G. appearing for the State has stated that important points were not pointed out before this Court at the time of deciding the bail application of the respondent/accused. He has categorically submitted that alleged photo copies of the police statement produced with previous bail application before this Court are not genuine and do not form the part of the investigation of this case. He has enquired from the S. H. O. concerned and made this statement that these Statements were not recorded during the course of the investigation of this case therefore while considering this bail application A. S. I. Ghulam Haider has wrongly tried to support the respondent/accused for which he could be held responsible and case of the prosecution should not suffer because of misconduct of A. S. I.
8. The bail was granted by this Court on 17th January, 1984, (Criminal Bail No. 1000/83) and I reproduced the concluding para of the order
"I have carefully considered the above submissions made by the learned Advocates before me and have gone through the F. I. R. as well as 161, Cr. P. C. statements of the abovementioned prosecution witnesses produced by the learned Advocate for the applicant as well as 161, Cr. P. C. statements of these very P. Ws. which are in possession of learned Additional Advocate-General It is very clear and obvious that there exists 2, contradictory statements of above mentioned 5 P. Ws. In addition to this according to 161, Cr. P. C. statements of P. Ws. in question, 2 injuries were received by the deceased Liaquat Ali whereas according to the Medical Certificate and post-mortem report which are available with the Additional Advocate-General, deceased had received only one bullet injury and as such there is discrepancies in the ocular and medical evidence as well.
In view of the above position, I had called A. S. I. Ghulam Haider, of Landhi Police Station, who had recorded 161, Cr. P. C. state ments in question of P. Ws. The A. S. I. Ghulam Haider admitted before me that photo-copies of 161, Cr. P. C. statement produced by the learned counsel for the applicant are in his handwriting and bear his signature (the photo-copies have been kept on record). The A. S. I. further admitted, that the 161, Cr. P. C. statements which are also of same date of these very prosecution witnesses, which are available in the Police papers which are in possession of Additional Advocate-General also bear his signature but are not in his handwriting. He was unable to explain existence of these two con tradictory statements of very P. Ws. under section 161, Cr. P. C. Keeping in view the above factual position in respect of 161, Cr. P. C. statements of the prosecution witnesses as well as further statement of the complainant and the admitted fact, that the applicant is also not named in the original F. I. R. in my opinion case against the applicant would require further inquiry at the stage of trial, as rightly conceded by the Additional Advocate- General.
Therefore, I allow the above application and direct that applicant be released on bail, on furnishing surety in the sum of Rs. 50,000 with P. R. bond in the like amount to the satisfaction of learned trial Court.
I, further direct, that the copy of this order be sent to the Inspector -General Police Sind, Karachi alongwith photo copies of 161, Cr. P. C. statements of 5 P. Ws. produced by the learned counsel for the applicant in this Court for necessary action as he may deem fit, as the investigation in the present case does not seem to be above board to say the least."
Liaquat is complainant. He has stated in his F. I. R. that Noor Hussain alias Hannan and Koka were standing and Noor Hassan fired three shots one hit him at forehead add two missed. The prosecu tion witnesses Abdullah, Zafar Ali, Shamsher Ali, Noor Ali were examined by Investigation Officer, A. S. I. Abdul Malik on 2nd July, 1983 They have stated in their statements that they saw that Muhammad Hussain alias Koka stopped Liaquat whereupon Abdul Hussain alias Hannan fired with revolver and his first bullet hit him on his forehead, another shot at his head and third missed. These statements have been entered in daily diary where it is clearly mentioned that Noor Hussain alias Abdul Hussain alias Hannan fired at Liaquat which hit him and he fell down. A copy of identity card has been produced with this applica tion. It was issued in May, 1976. The name and address of the respondent is given as under:-
"Abdul Hussain alias Abdul Hannan son of Mian Gul alias Bahadur Shah, resident of 574/14 37-D Landhi, Karachi."
9. According to F. I. R. the name of accused is given as "Noor Hussain alias Hannan" and both the parties are resident of same street. The injured has given full particulars, except minor discrepancy as he mentioned Noor Hussain instead of Abdul Hussain but he has clearly stated that he is also called "Hannan". This fact also appears in his Identity Card and witnesses who are from locality have also given the name of respondent as Abdul Hussain alias Hannan. It is also clear that respondent his brother and even father are being called with different names. The photo copy of statements of witnesses, namely Shaukat Ali, Abdullah, Shamsher Ali and Noor Ali were produced by the respondent with criminal bail application No. 1000/83 (decided on 17th January, 1984) clearly disclose the name of the respondent. They stated that Abdul Hussain alias Hannan fired first short which hit Liaquat on his forehead and another missed and in all two fires were shot.
10. In these circumstances it is clear that name of respondent does appear in F. I. R. as well as in Police statement.
Medical certificate of Liaquat shows that he had following injury:-
"(1) Punctured wound x on the left side of forehead with a heamboma about 2 x 2 around it. Charring in an area about " x " present around the wound. The margins of wound are inverted."
According to post-mortem report the bullet was found on occipital text of brain.
11. Deceased Liaquat in his F.I.R. has clearly stated that one shot hit him on forehead and it gets support from Medical evidence that he had injury on forehead. All the witnesses in the statements produced by respondent have also stated that Liaquat sustained one fire injury. The minor contradictions that witnesses have stated in Police statements which form part of investigation that first fire hit on his forehead and other injury on his head make a little difference because doctor has not been examined and it is too early to decide all these points at the bail stage. No doubt a Police A. S. I. Ghulam Haider has tried to help the accused for which reference has been made in previous bail order. In spite of that all the statements and F. I. R. are consistent, that respondent/accused fired at Liaquat There is no delay in F. I. R. which has been lodged no other person than injured who subsequently died. This statement could also easily be con sidered as dying declaration of Liaquat Ali.
12. Respondent and others moved application for bail before arrest on 3rd July, 1983 in the Court of Sessions Judge, Karachi the same was transferred to IInd Additional Sessions Judge, Karachi who on the same day granted him interim bail and fixed for confirmation on 20th July, 1983, but the same was adjourned to 25th July 1983, when confirmation of bail was not pressed and application was dismissed. It is said that a respondent did not appear on that day and absconded. He furnished surety for appearing in the Court of Additional Sessions Judge but in spite of that on the date of hearing he did not appear.
13. On 1st December, 1983 respondent appeared in the Court of IInd Additional Sessions Judge, Karachi and submitted bail application but he was remanded to custody. His bail application was rejected on 7th Decem ber, 1983, and learned Additional Sessions Judge, observed as under:-
"That the name of the present applicant appears in F.I.R. and witnesses examined by the Police, under section 161, Cr. P. C. have fully impli cated the present accused in the crime and have stated that the present accused fired with the revolver on the complainant."
14. It is also admitted position that after getting interim bail before arrest on 3rd July, 1983 he was absconding till 10th December, 1983 for more than four months.
It is also necessary to mention that respondent has not even referred to the Police statement of five witnesses produced by him in the High Court. The said statements were neither referred nor filed in the Sessions Court during the hearings of his previous bail application.
15. Mr. Gul Zaman learned counsel for the respondent has taken the plea that bail application decided by one Judge of the High Court, cannot be heard by another Judge of same High Court and he should not go into the merits of the case again. He has relied upon a case reported in 1982 P Cr. L J 713. In this case bail .was refused by one Judge on merits but another Judge not considered the merits in another application. This case it is contrary to the case referred above. There is specific provision for cancellation in Cr. P. C. The other cases referred by him reported in P L D 1981 S C 235, 1981 S C M R 734. The facts of the cases cited above are distinguishable as one case pertains to suspen sion of sentence after conviction. I also agree that under section 426, Cr. P. C. bail granted could hardly be cancelled as there is no provision in that section for cancellation and in other case Supreme Court had not cancelled the bail and in case P L D 1978 S C 256, it is held tentative assessment could be made at bail stage.
15. On the other hand Mr. Iftikhar Ahmed appearing for applicant has argued that under section 497(5), Cr. P. C. bail granted could be cancelled by the same Court as cancellation is neither review nor a judgment. On this point he referred to the cases reported in P L D 1977 S C 602, P L D 1967 S C 539 and P L D 1956 F C 117, where it has been held that High Court is empowered to recall the earlier bail order and same view is followed in cases The State v. Mr. Zulfiqar Ali Bhutto (1978 P Cr. L J 320) where it has been held that bail granted by Single Judge could be cancelled by Full Bench as it is not a review. The Supreme Court in a case reported in 1981 S C M R 35 observed that High Court is empowered to examine the question of cancellation from various angles as it is not a review.
16 Therefore I, come to the conclusion that High Court could con-J sider cancellation of bail earlier granted and section 497 (5), Cr. P. C. is relevant.
17. The upshot of the above discussion is that the name of the respondent appears in F. I. R. The specific part has been assigned to him. The medical evidence supports the version given in F. I. R. He knowingly absconded for about more than four months. The prima facie case under section 302, P.P.C. which is punishable with death is made out. I, therefore recall the order dated 17th January, 1984 whereby the bail was granted to the respondent. Consequently 1, accept the cancellation application and order that respondent be remanded to custody.
However, the observations made by me are tenative and trial Court can decide the case on merits, and direct trial Court to examine eye witnesses within two months from this order. The respondent can repeat application if so advised after some evidence is recorded.
S. G. D. Bail cancelled.
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