These are two separate Criminal Miscellaneous Applications Nos. 463/79 and 663/79 for the purpose of cancellation of bail which has been granted to accused in two separate murder cases.
The facts in each case are different and they are dealt with separately, but they were heard together on the point as to what are the considerations which should weigh with High Court in cancelling a bail. Another law point urged was that if bail has been rejected by a Sessions Judge then he or his predecessor should not allow bail in the same manner, unless there is a fresh material for his consideration.
2. I have heard Mr. A. Q. Halepota, Mr. Samiuddin Sani, Mr. Sharif, Mr. Manzoor Hussain and Mr. Abdul Satter Shaikh Additional Advocate-- General on these two law points and I will deal with their arguments. Mr. Halepota placed his reliance upon PLD 1955 Pesh. 50 showing that the order granting or refusing bail without any fresh material being placed on record was, if so not illegal, at least, grossly, irregular, and that no second petition on identical ground was competent without fresh material giving rise to a fresh cause of action. He also relies upon 1968 P Cr. L J 152 where it has been held that no second petition for bail on identical ground was competent without fresh development. It was held in PLD 1978 Lab. 725, which was fairly brought to my notice by Mr. Sharif that IInd Bail Application is competent only on new and genuine grounds or fresh development. Mr. Halepota has also placed reliance upon 1970 SCMR 667 where it was observed that repeated applications for bail on the same fact did not be. Mr. Halepota however fairly placed before me PLD 1970 SC 335 where it was observed that High Court can review its order if the earlier order was passed without hearing of the parties, and he therefore contended that only if party had not been heard the tad bail application can be entertained. However, I find that in PLD 1979 Lab. 220, it was held the Court is entitled to enter--tain fresh bail application and to consider fresh material or grounds or to consider the piece of evidence which was not considered earlier. Mr. Sattar Sheikh referred in detail to PLD 1970 SC 335 where it was held that section 369 of Cr. P. C. Does not control section 497 and applications for bail can be repeated on fresh material or new grounds. In PLD 1977 SC 277 the following observations are found. There is no mention in the order of Single Judge that he has also examined the statement of witnesses other than Manzoor. Supreme Court therefore directed the counsel to make fresh application. Mr. Sharif, therefore argues that this clearly visualises of making the 2nd application if certain circumstances of the case have not been considered. Therefore, I am of the view that a fresh bail application can be moved on the ground that a particular circumstance had either not been brought to the notice of the Judge or it has not been considered by the Judge. It is agreed on all hands that if there is a fresh material then of course a bail application can always be repeated. It is only the question of appropriateness which is to be considered by the Second Court whether in view of the previous application having -been considered o merits he should consider a fresh application without any fresh material having been introduced. There is no bar in law to such application being made, if a party can show that his case has not been properly considered in all its aspects.
3. In respect of the ground for cancellation of bail the counsel of different sides have produced innumerable authorities and I find that the view seems to be that the grant of bail is essentially a matter within the discretion of the High Court and in respect of the grounds for cancellation of bail in PLD 1977 SC 602, the majority view was that the High Court was empowered to cancel the bail earlier granted by itself and that there was no finality attached to the order of granting or rejecting a bail. In that case however the minority view was that the order granting bail must be perverse before the bail could be cancelled. In 1979 SCMR 146 it was observed that since the High Court did not act arbitrarily and the matter of bail was within the discretion of High Court and there was no violation of any fundamental principle of administration of justice, therefore, application of cancellation of bail is dismissed. Again in 1979 SCMR 9. It was observed that the matter of bail was essentially in the discretion of High Court and there was no legal and factual infirmity of any fundamental nature in the order of the High Court therefore it was held that the bail did not suffer from infirmity. Again in 1979 SCMR 369, where bail had been granted by the High Court on account of delay in trial, it was held that the question of bail is essentially a matter of discretion for High Court and Supreme Court did not think that the High Court had committed any fundamental error of law or procedure in granting bail to respondent. In 1979 SCMR 479 it was observed that the view of the High Court that the bail once granted could not be recalled in the absence of cogent reasons such as misrepresentation or suppression of facts or the concession of bail being abused by the accused. In that case the bail had been granted by the High Court on the basis of delay in trial of two years. But I find that in 1979 SCMR 65 and 197 shown to me by Mr. Samiuddin where the High Court bad granted bail on the ground that no particular accused bad been assigned the part of giving vital below, the Supreme Court cancelled the bail on the ground that it was in disregard of some of the salient facts of the case and legal principles applicable to them and that section 34 had been disregarded in respect of joint responsibility of all accused in the causing of death. Again in 1977 SCMR 519, it has been observed that if discretion has been exercised against patent facts of the case it would be the capricious exercise of discretion. Mr. Halepota relied upon 1979 SCMR 65 where the bail had been granted by the High Court on the ground that the respondent was not armed, held no motive of his own, and had not caused any injury to the deceased and that the challan had been submitted for trial. The Supreme Court cancelled the bail on the ground that the respondent had colluded with his co-accused and played an active role in the transaction by catching hold of the deceased while co-accused inflicted the hatchet blow. Therefore, provisions of section 34 were prima facie attracted.
4. In the light of these rulings it is apparent that the High Court is entitled to cancel the bail clearly in those cases where there is any perversity in the order granting bail. It is also permitted to cancel the bail where the bail has been granted in disregard of some of the salient facts of the case and legal principles applicable to them and also if the discretion has been capriciously exercised. It was also established proposition that if discretion has been exercised against patent facts of the case it would amount to capricious exercise of discretion and may entitle the High Court to cancel the bail. It is however also clear from these judgments that the bail should not be cancelled as a matter of course, as the grant' of bail is a matter of discretion and it is the arbitrary exercise of discretion which should attract the cancellation for B bail. Therefore, it is apparent that no hard and fast rule has been laid down in respect of the matter of cancellation of bail by the High Court and it would depend upon the circumstances of each case whether the bail should be cancelled or not.
5. In the matter of Crl. Misc. No. 463/79 I find that the first order rejecting the bail was passed by the Additional Sessions Judge on 18-5-1978 where he rejected the bail of the respondent on the ground that evidence against him consisted of 4 eye-witnesses, namely (1) Ghulam Hyder Panwhar (2)
Usman Jat (3) Saddiq Jat (4) injured complainant Vikio. It was also observed that there was a recovery of crime empty found at the wardat and pistol had been produced by accused Abdullah at the time of his arrest and report of Ballistic Expert showed that the crime empty and the revolver recover--ed from the wardat matched with each other and the medical certificate showed that the injury upon Taiib was by revolver which confirmed the statement of the complainant in the' F. I.
R. That Abdullah accused had caused the revolver injury upon the chest of Talib deceased. The Additional Sessions Judge had also considered the delay in trial up to 18-5-1978 and had also held that although the incident is of 8-8-1976 yet the delay in the trial was on account of the accused's counsel seeking adjournment, therefore, bail could not be granted. The learned Sessions Judge on 25-4-1979 granted the bail on the grounds (1) possibility of victimisation by police (2) theory of self-defence (3) No indepen--dent witness (4) no eye-witness from village (5) inconsistency between F.I.R. And statement under section 164, Cr. P. C. (6) manner of incident showed no premeditation, therefore, capital punishment could not be awarded, (7) delay of 3 years. I find that the accused alleged enmity with A. S. I. Police in 1974 but that A.S.I. Had nothing to do with the investigation 'of the case, and there--fore, it was not the relevant consideration at the stage of bail.
The theory of self defence had no basis merely on account of the fact that the incident had taken place in the hotel of accused Abdullah. There was no injury alleged to have been caused to the accused, and therefore, at that stage there was no material or circumstance which could lead to the theory of self-defence. The factor that there was no independent witness or no local witness was not really of such a significance that it could be considered on ground of granting bail more particularly so when P.W. Ghulam Hyder Panwhar belongs to a different case. It was only after it has been established that the prosecution witnesses had no business to be available at the site of the offence that their presence could be disbelieved and until then it had not become a matter of further inquiry into the guilt of the accused. Moreover I find that in respect of in--consistency of F.I.R.
And statement under section 164, Cr. P.C. That 'Additional, Sessions Judge has unnecessarily gone into such details then F.
1. R. State accused fired from the pistol while the 164 Cr. P. C. Statement states that h took out pistol from counter. Such minor difference in the view of the P.Ws. Could not be regarded as inconsistency for the purpose of bail. The considera--petition that the manner of incident showed no premeditation and the accused could not be sentenced to death was hardly sufficient to grant bail as Exception TV to section 300 required that the offence should not only be without premeditation but it should also be shown that it was not a sudden fight in the heat of passion upon a sudden quarrel and that offender had not taken under advantage or acted in a cruel or unusual manner. Therefore merely noting without premeditation did not attract exception and it was only after evidence had been recorded that the said exception could be attracted in this case. The last ground that there was a delay of three years had faded to take into con--sideration that upto 18-5-1978 in the last order rejecting the bail application the delay had been attributed to the defence. In any case delay per se of one year would hardly be a ground of. Giving bail as in 1979 SCMR 438, it was held that the delay to constitute a ground for bail must be unconscionable delay. The learned Additional Sessions Judge, had not observed that there was any unconscionable delay, on the part of the prosecution. In any case the learned Additional Sessions Judge has failed to take into consideration that there were eye-witnesses one of them was the injured complainant who had named only one accused and that the recoveries of the crime empties at the wardat and the pistol from accused Abdullah complied with the report of the Ballistic Expert, which was positive, had burdened accused Abdullah with the commission of the crime and at this stage, there appeared reasonable grounds for believing that he had been connected with offence punishable with death. I am unable to find that there were sufficient grounds for enquiry into the guilt of the accused, in the circumstances of the case, and bail had therefore been granted to him against the patent facts and in disregard of those facts which had clearly established the prima facie once against the appellant. D The bail granted to accused Abdullah is therefore, cancelled. I may however observe that my above observations are merely tentative and they will not be referred at all at the trial of the accused.
6. In respect of Criminal Miscellaneous 663/791 find there was a dispute between the complainant side and the accused side on the question of land and in the F. I. R. Which was lodged on 20-6-77, accused Ghulam Miran and Gul Bahar with one unknown person were alleged to have fired at the com--plainant party and killed three of them and also looted their property. Gul Hassan was not named, the incident was witnessed by two eye-witnesses Ismail and Muhammad A.I. Ghulam Miran, Gul Hassan and Gul Bahar, the three accused are real brothers. Bail was granted to Gul Hassan on 10-4-1979 on the ground that he was not named in the F. I. R. And in 164, Cr. P. C.
Statements of the witnesses, although his other two brothers were clearly named. There was also no recovery of any incriminating articles from him and only circumstance against him was that he had been identified in an identification parade after two years of the incident. I do not find that bail has been granted to Gul Hussan in an arbitrary or capricious manner or even in disregard of the salient facts of the case and I therefore do not consider it a E fit case to cancel his bail.
7. On 30-6-1979 bail was granted to Gul Bahar on the ground that Ismail and Muhammad A.I who are the only two eye-witnesses are chance witnesses and their presence at the scene of offence was doubtful and that P.W. Karam--ullah in his 164, Cr. P. C.. Statement had stated that accused had muffled faces and that the F.
1. R. Was filed after consultation with Atta Muhammad Lund and that F.
1. R. Had been lodged after 5J hours. I find that the Additional Sessions Judge has taken very great pains in proving at the stage of bail that Ismail and Muhammad A.I could not be at the scene of offence. I am conscious that in PLD 1978 SC 256 (261) Mr. Justice Dorab Patel has observed that there is a duty cast on the Court of making tentative appreciation of evidence of the material produced before it by the parties even at the time of bail, and therefore, the Sessions Judge could make a tentative appreciation, but in fact what he has done is that he has concluded the matter about presence of the eye-witnesses at the trial by saying that it was doubtful F whether they could be present at the scence of offence ; therefore, there was hardly any scope left for further enquiry on this account. This has been don without considering the explanation offered by Muhammad. A.I and without making the inspection of the relevant case which was considered necessary a one time by the learned Judge himself, and without even recording the state--ment of the other eye-witness Muhammad Ismail. Such definite finding at this stage, was, therefore not justified and such detailed appreciation was uncalled for. The learned Judge has also considered a delay of 5 --hours in the filing of the F. I. R. While the distance was 12 miles from village to the Police Station and three miles between the scene of offence and the village, therefore, for the purposes of bail 5 --hours delay when the distance is about 15 miles is not such an inordinate delay that it could be taken as the ground of the granting bail. In 1979 SCMR 114 it was held that the delay lit filing the F. I. R. Should be considered at the stage of trial and not at the stage o bail.
Moreover, the learned Judge has stated that the F. I. R. Was filed after consultation with Atta Muhammad. Again this factor could not be considered as the ground of bail as it is not uncommon in Sind with the parties to go t their Nekmard before filing the report. Moreover, the learned Judge ha failed to give any consideration to the fact that there are recoveries from accused Gut Bahar of unlicensed revolver with live bullet and licensed revolve of the deceased Muhammad A.I as well as the licence of deceased Barka A.I and also his wrist-watch. The recoveries of these articles and the report of Ballistic Expert which is shown to be positive from the statement made b the A.P.P. Show that a reasonable prima facie case has been made out against accused Gut Babar by the prosecution under section 302, P. P. C. And there were no sufficient grounds for further inquiry or justifying the grant of bail. The bails should not therefore have been granted in disregard of the recoveries of the articles of the deceased which reasonably connect accused Gut Bahar with the crime. Therefore, bail granted to respondent Gut Bahar is cancelled and he is directed to be taken into custody. These observations would, how--ever, not be used to the prejudice of the accused Gut Bahar at the trial of the case nor would this order deter the trial Court from considering a fresh bail application, if the introduction of any fresh material justifies the same.