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Criminal Miscellaneous No. 1152/B of 1982, decided on 3rd November, 1982.

‑‑‑Ss. 497(5) & 369‑‑Penal Code (XLV of 1860), S. 302/148/149‑‑ Cancellation of bail‑‑Order of granting bail by one Judge of High Court after considering merits in detail, held, could not be reconsidered muchless could be reviewed by another Judge of High Court Contention that order granting bail by one Judge of High Court could be reviewed by another Judge of High Court because order granting bail could not be termed as judgment within meaning of S. 369, Cr.P.C repelled.

Muhammad Khan v. Sanaullah and another 1981 S C M R 35; Farid v. Ghulam Hussain and others 1968 S C M R 424; Muhammad Ismail' v. Hidayat Ullah and 2 others P L D 1971 S C 324 and Iftikhar Ahmad v. Abdur Razzaq P L D 1981 S C 235 ref.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302/148/149‑‑Grant of bail to accused having not been taken with good taste by complainant party and for that reason certain reports lodged against accused with police in order to prepare ground for getting accused's bail cancelled‑‑Accused not misusing concession of bail in any manner‑‑Cancellation of bail declined in circumstances.

Sardar M. Latif Khan Khosa for Petitioner.

Sahibzada Farooq Ali for the Complainant.

Masood Akhtar for the State.

This petition for cancellation of bail has been moved by Rana Basharat a labour leader against Sultan and 9 others accused of having committed murder of one Mehraj Din and murderous assault on Sand, Muhammad Hanif, Abdul Ghaffar, Muhammad Ismail, Shaukat Ali, Muhammad Bashir, Zaheer, Bashir and Sadiq members of his labour union. At motion hearing, learned counsel for the petitioner did not press for the cancellation of the bail of respondents Nos.2 to 10 who were granted bail by the Sessions Judge, Sahiwal as he wished to approach that Court for the purpose.

2. The instant petition was admitted against Sultan Ahmad respondent on the ground that he abused the concession of bail and attempted to suborn the prosecution witnesses. This respondent was admitted to bail by learned Single Judge of this Court, vide order, dated 21‑6‑1982. Learned counsel appearing for the petitioner has made an attempt to argue the case on merits. He canvassed at the Bar that because the respondent was attributed a fatal head injury to the deceased with a hatchet, therefore, he maintained, that earlier order, dated 21‑6‑1982 of this Court passed by the learned Single Judge of this Court should be recalled. According to him that order could be reviewed by another' Judge because the order granting bail to the, respondents cannot be termed as judgment in the meaning of section 369, Cr.P.C. In this connection he referred to Muhammad Khan v. Sanaullah and another 1981 S C M R 35. No doubt in this authority. It has been held that the High Court and Sessions Courts have powers under section 497, subsection (5) , Cr. P . C . to examine and cancel the bail granted by themselves and section 369, Cr.P.C. does not Constitute a bar. But in my humble view, it is not clear that the order of grant of bail or refusal to grant bail by one learned Judge of this Court can be reviewed by another Judge of this Court when the former is not available. On this point the Supreme Court of Pakistan on more than one occasion has expressed that in such a situation the matter should be laid before the same Judge who earlier dealt with the matter to avoid an assumption that a learned Single Judge, overruled his brother Judge in the Court, if a different view is taken. A reference in this regard can advantageously be made to Farid v. Ghulam Hussain and others 1968 SCMR 424 wherein dealing with a similar situation their Lordships observed as follows:‑----

"It should also have beep a matter 'of some concern to the learned Judge that one of his brother Judges had already dealt with the case and expressed himself strongly against the grant of bail by the Additional Sessions Judge. Not only the long‑established practice of this Court, but also the rule of propriety required that he should have transferred the application for bail to the first Judge for disposal. Such a course would have had the merit of avoiding the possibility of two contradictory orders being passed in the same case by the High Court."

This view was reiterated in Muhammad Ismail v. Hidayat Ullah and 2 others P L D 1971 SC 324 while considering a case, where a learned Judge of this Court granted bail to the accused, who was earlier refused bail by another learned Judge. In this case their Lordships were pleased to remark:‑--

"The order passed by learned Judge allowing bail to the respondent No.1 was thus based on misconstruction of the record and it also suffered from the impropriety pointed out by this Court in the case of Farid v. Ghulam Hussain and others."

Likewise in Iftikhar Ahmad v. Abdur Razzaq P L D 1981 SC 235 it was held:‑

"rulings of the Supreme Court which require a bail matter once dealt with by a learned Judge of the High Court arising out of the same case (which might also include cross‑case) so long as the former is available should be heard by himself would not strictly apply in this case because the various orders were passed at Bahawalpur Circuit where the availability of the same learned Judge might entail necessary delay. But in the circumstances of this case if despite the rejection of the convict's application on merits needed reconsideration, he should have either sent the case to the same learned Judge who had initially refused bail to the respondents or might have advised the convicts to seek review of the order passed by this Court. He had no jurisdiction to review the order of his own brother Judge in the High Court nor the order of the Supreme Court."

Taking light from the aforesaid pronouncement by the Supreme Court of Pakistan, I am of the considered view that order, dated 21‑6‑1982 passed by my learned' brother Sardar Muhammad, J. granting bail to the respondent Sultan' Ahmad after considering the merits in detail cannot be reconsidered' muchless could be reviewed by me.

3. The next point urged by the learned counsel for the petitioner is that Sultan Ahmad respondent by misusing the concession is tampering with the evidence. He has relied on three reports made to the police i.e. one made by Sapdi Abbas P.W. on 21‑6‑1982, the other by Shaukat P.W. made on 28‑6‑19,82; and the third by Abdul Ghaffar P.W. made on 3‑7‑1982 to S.H.O., Chichawatni (annexed with the petition as C.1, C.2, C.3. It may be mentioned that the respondent was allowed bail on 21‑6‑1982 and was note, released from jail till 22‑6‑1982, when report C.1 was made to the police and obviously, therefore, the name of the respondent does not find place in that report. As for the other two reports are concerned, learned counsel for the respondents controverted the allegation of suborning the prosecution witnesses made therein, through affidavits. He also produced a report from the Ilaqa Police, dated 4‑8‑1982, which declared the report C.3, dated 3‑7‑1982 as false. In these circumstances, it appears that the grant of bail to the respondent has not been taken with good taste by the other party and, therefore, certain reports were lodged with the police with I arrangement to prepare ground for getting the respondent's bail cancelled. I am, therefore, not satisfied that the respondent has in any manner misused the concession of bail. Resultantly this petition has no merit and the same is hereby dismissed.

H. A. K./4266/L Cancellation of bail declined.

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