' This is second application for release on bail of Salim Akhtar and Javed Akhtar, real brothers inter se, accused in case for the murder of Arshad deceased under section 302/34, Pakistan Penal Code allegedly committed by the petitioners alongwith their father Muhammad Hussain in furtherance of a common intention.
2. In a nutshell, the facts of the case are that the petitioners and their father had a row with Muhammad Ashraf father of the deceased over payment of charges of hire of a bicycle allegedly due from the deceased. The petitioners and Muhammad Hussain gave fist blows etc. To Muhammad Ashraf. Meanwhile, the deceased also arrived at the spot. Muhammad Hussain allegedly incited the petitioners whereat they both dealt one injury each to the deceased with knives in their hands. The latter succumbed to the injuries shortly afterwards. According to the report of post-mortem examination, injury No, 1 which has been attributed to Salim Akhtar petitioner (1) had proved fatal and was sufficient in the ordinary course of things to cause death.
3. The first application (Cr. Miscellaneous 1452/B/78) was pressed on a two-fold ground : (0 That the alleged act of the accused in causing death of the deceased was protected by right of private defence of body and (ii) that the case was covered by Exception (IV) to section 300, P. P. C. It was unlikely that the petitioners will be sentenced to maximum penalty provided under section 304, P. P.
C. The case, therefore, did not fall under subsection (1) of section 497, Cr. P. C. Both these contentions were repelled with the view that the question if the complainant side had launched the attack will be determined at the trial and should not be foreclosed at this stage and the question whether the case was covered by Exception (1V) to section 300, Pakistan Penal Code required weighing of probabilities and was equally not relevant at this stage. Consequently, the application was dismissed in limine.
4. The first point calling for consideration is if the order rejecting the first application bars the instant application. The answer must be in the negative for the provisions in section 369, Cr. P. C.
Did not apply to orders A disposing of bail applications under section 497/498, Cr. P. C. This precis point came up for decision before the Supreme Court in Gulzar Hussain Shah v. Ghulam Murtaza (1). It was ruled in that case that in the first place the order passed under section 498 is not a judgment within the meaning of section 369, Cr. P. C. Moreover section 369, Cr. P. C. Is in the Chapter relating to original trials and unless it is specifically applied to other proceedings under the Criminal Procedure Code, it cannot be said to have any application to other proceedings. The rule laid down in this case was reaffirmed in Amir Din v.The State (2) with the observation that strictly speaking an order allowing or cancelling bail does not amount to a judgment within the meaning of section 369. High Court has inherent powers to revoke review, etc. Its earlier order is not governed by sections 369, 424 and 430 with a view to prevent abuse of process of Court or meet the ends of justice. Second application for bail could be made even in the absence of fresh material.
5. On merits, the contentions were substantially the same as were insinuated in the previous application. It was argued that shop of the petitioners was the venue of occurrence and Salim petitioner (1) had as many as 10 injuries on him which had been suppressed altogether in the first information report. It could be presumed reasonably that the deceased and his father had attacked the accused at their shop. The petitioner had caused injuries to the deceased if any in exercise of right of private defence. The question if such right was available to the petitioner will be determined at the trial after examination of evidence. There was no justification in law nor on facts to prefer the version of prosecution to that of the petitioners. This contention was sought to be supported by a couple of Judgments of Supreme Court in Amir v. The State (3) and Mithu v. The State (4). It was also argued that the rule laid down in Muhammad Aslam v. State (5) which I had referred to in the order rejecting the earlier application of the petitioners did not preclude the Court from a tentative prejudgment of the case to determine if there were reasonable grounds for believing that the petitioners were guilty of charge punishable with death or life imprisonment. This contention does not carry much persuasion in it. Salim Akhtar petitioner (1) had three incised wounds on the right thumb, right index finger and the tip of right ring finger each 1/16" in depth, three contusions of not very substantial dimensions and four abrasions. The depth of incised injuries and the dimensions of the remaining injuries on the petitioner do not justify a view different from the one 1 had expressed in the order disposing of previous application of the petitioners. It is not a cast iron rule that in cases where the accused had simple injuries on him which do not find mention in the first information report, a presumption should always he raised that the
(1) PLD 1970 SC 335 , (2) PLD 1972 SC 602
(3) PLD 1972 SC 277 (4) 1978 SCM R 231
(5) PLD 1967 SC 539 complainant side were the aggressor and the accused were the victim of aggression. The two judgments referred to by learned counsel for the petitioner which should be construed confined to their peculiar facts do not support the above argument. In Amir's case, the witness who had lodged the report had admitted in his statement during inquiry proceedings which under the old law preceded trial of the case before Court of Session that the petitioner before their Lordships had fired his gun at the deceased after the latter had fired at Yasin mortally who belonged to the petitioner's party. The other eye-witnesses examined in the case had also made statement in the same strain. It was observed by their Lordships that if this was correct and there was no other evidence to connect the petitioner with the crime of murder and his right of self-defence is completely established, he can press for his discharge or acquittal. Under section 96, P. P. C., nothing is offence which is done in the exercise of right of private defence and if he is found to have exceeded it he can be convicted of culpable homicide not amounting to murder and may not necessarily be sentenced to life imprisonment which was the maximum provided under section 304, P. P. C. The petition was dismissed with the direction that the petitioner may renew the application for bail before the High Court which will consider the whole case for the purpose of bail on the date that is available. This judgment was cited in support of the arguments addressed in Mithu's case. It was found that in the circumstances of the case, prima facie, it appears that the petitioners' side had the right of private defence. The question whether he exceeded this right required further enquiry. In the instant case, the facts that the shop of the accused was the venue of crime and Salim Akhtar had three incised wounds all 1/16' deep which may or may not have been caused in wielding the knife for attack on the deceased do not in my opinion support the view that in all probabilities the counter version of the defence has a ring of reasonable truth around it.
The question if presence of injuries on Salim Akhtar could support the proposition that he had caused injuries to the deceased in repelling latter's attack on him will be decided B after examination of evidence. The data now available justifies the counter view that there were reasonable grounds for believing that the petitioners were guilty of the charge.
6. Learned counsel next contended that final report (challan) under section 173, Cr. P. C. Was filed before learned Magistrate under subsection (3) of section 190, Cr. P. C. On 28th of December 1977 when the accused were already lodged in judicial lock-up. The file was passed on to learned Sessions Judge by the Magistrate. The former had on 2nd of January 1978 recorded an order that the case be entered in the relevant register. The accused will be summoned at the time of hearing.
The detention of the petitioners in the lock-up was unlawful as the order for continuance of the petitioners in custody should have been recorded by learned Sessions Judge in the presence of the petitioners. The petitioners were entitled to grant of bail no matter whether or not the charge against the petitioners was not groundless and the case was covered by the prohibition enacted in subsection (1) of section 497, Cr. P. C.
' There are so far three cases which have bearing on the point raised by learned counsel for the petitioners. The first case is that of Saif-ur-Rehman alias Chilli v. State (1). In that case, the accused was admitted to bail for the reason that learned Sessions Judge to whom the case was sent by the Magistrate after amendment in the Criminal Procedure Code deleting the provisions for inquiry before a Magistrate and for a formal
(1) PLD 1978 Lab. 314 order of commitment of the accused for trial before Court of Session, had adjourned the case sine die. It was held by a learned Single Judge of this Court that where a case is sent to Sessions Judge under amended law (section 190(3), Cr. P. C., he is bound to comply with the provisions of section 344, Cr. P. C. And cannot adjourn the case sine die. This judgment was overruled by the Supreme Court in Shadi Khan v. Muhammad Salim and others (1). The third and the last case is that of Muhammad Aslant and others v. The State (2) which incidentally came up before the same learned Judge who had decided the case of Saif-ur-Rehman. In that case it was held that the rule laid down in Shadi Khan's case could not be applied to that case for the reasons that learned Sessions Judge had not recorded any order committing the accused to custody, detention of the accused was illegal and he was admitted to bail.
7. Presence of the accused for recording order of remand can be hardly over-emphasized. Such orders cannot be passed in the absence of the accused. Order for re-commitment also requires his presence. However, I feel disinclined to value the contention in favour of the petitioners. As I understand the tenor of judgment of their Lordships in Shades case, the provisions in section 344, Cr. P. C. Which as such do not permit postponement sine die of the proceedings did not apply in terms to the cases before the Courts of Session. The fact that the order of adjournment of the case sine die and the order for continuance of the petitioners in jail was recorded in this case by learned Sessions Judge in the absence of the petitioners cannot, therefore, be given much significance. A different order could not have been possible even if the petitioners were present. They could not object on any valid ground that they should not be committed to custody or the trial of the case should start immediately in preference to the cases already pending on the file of learned Sessions Judge. At the highest, order of learned Sessions Judge suffered from a technical defect.
Technicalities cannot be allowed to defeat the process of law. I have held twice on a careful assessm ent of ambient circumstances of the case that there arc reasonable grounds for believing that the petitioners were guilty of a capital charge. To allow them bail on a mere technical ground will be an act of judicial extravagance and not a proper exercise of judicial discretion. Application rejected.
(1) PLD 1978 SC 38 (2) PLD 1978 Lah. 796(1)