1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from order, dated 16-2-1981 of the Lahore High Court, whereby an earlier detailed order, dated 8-11-1980, granting interim bail during the pendency of a criminal appeal, to respondents 1 to 6 (convict appellants before the High Court) after suspending their sentences on conviction for various offences including 307, P. P. C. Was confirmed.
2. The respondents were convicted by a Section 30 Magistrate under sections 307, 447, 325 all read with 149 and also 148, P. P. C. The sentences which were ordered to run consecutively under these counts ranged from one year's R.
1. To seven years' R.
1. The sentence of fine was also awarded. The convicts filed appeal in the Lahore High Court, Bahawalpur Circuit. They also moved an application for suspension of sentences and grant. Of bail during the pendency of the appeal. It came up for hearing before a learned Single Judge on 8-3-1980. He after hearing the counsel for the applicants did not "find any justification to release any of the appellants on bail after suspending their sentence". It was, however, directed that a report regarding health of Rahim Bakhsh convict (not a respondent herein) be called. On a subsequent hearing, I.e. 25-3-1980, sentence of Rahim Bakhsh was suspended on medical grounds, and he was ordered to be released on bail by the same learned Judge, who had passed the order, dated 8-3-1980. Subsequently, Muhammad Hayat respondent No. 6 also applied for suspension of sentence and bail on ground of ill health but his prayer was rejected on 24-9-1980. Three convict respondents, namely, Wali Muhammad, Ghulam Rasool and Muhammad Hanif had in the meanwhile moved the Supreme Court for leave to appeal from order, dated 8-3-1980, whereby the concession of bail was refused on merits. But leave was refused by this Court on 6-3-1980 after hearing the learned counsel for the convicts with the remarks that "he wants us to appreciate the evidence at this stage and give a tentative finding that there is no case against the .Petitioners. We are afraid we cannot accede to this prayer".
3. Despite the proceedings noted above and notwithstanding the fact that the Supreme Court had refused to appreciate the evidence for purpose of suspending the sentence under section 426, Cr. P C., another application was moved in the High Court on 1-11-1980 for the suspension of sentence o1 Wali Muhammad, Abdul Rasool and Muhammad Hanif respondents. An alternative prayer was also made that in case the appellants could not be released on bail, the appeal should be heard expeditiously. This time, the application was moved by Mst. Noor Bibi wife of Rahim Bakhsh and mother of Abdul Rasool and Wali Muhammad respondents. It came up for hearing before another learned Judge of the High Court on 8-11-1980, who passed an order of more than five pages without notice to and hearing any body on behalf of the State. We discussed the merits of the case in detail and suspended the sentence of not only Wali Muhammad, Abdul Rasool and Muhammad Hanif respondents but also in exercise of what he thought suo Motu jurisdiction suspended the sentences of Abdul Razzaq, Ghulam Rasool and Muhammad Hayat respondents as well and released all the six respondents on bail. This was treated as an interim order and notice was then issued to the State. A formal order of confirmation of this order without any further discussion was passed on 16-2-1981 by yet another Judge, who it may be stated, did not give his own reasons but "for the reasons recorded in the order dated 8-11-1980" confirmed the interim bail.
4. Iftikhar Ahmad petitioner has through this leave to appeal petition brought under challenge the suspension of sentence and grant of bail to the respondents on various grounds, wherein contentions of merit as also of law have been raised.
5. After issuing notice to the State and the respondents, we have heard both the sides at some length.
6. The learned Advocate-General has supported the petition.
7. It goes without saying that the High Court had dismissed the petition for suspension of sentence filed by all the convicts under section 426, Cr. P. C. On consideration of the merits of the case on 8- 3-1980. Only one convict was released subsequently on bail on 25-3-1980 on ground of ill health.
8. Threw of the convicts had also tried to test the validity of the High Court order, dated 8-3-1980, through a challenge to the same in the Supreme Court. But it was ruled by this Court that the case was not fit for appreciation of the merits relating to the conviction of the respondents.
9. Notwithstanding the same, a learned Single Judge seemed to have assumed jurisdiction and power to overrule his brother Judge in the High Court as also the Supreme Court on a wrong but unfortunate assumption that he could do so under the law. It is correct that those rulings of this 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 cases) 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 unnecessary delay. But in the circumstances of this case if despite the rejection of the convicts' application on merits by another Judge of the High Court as also by the Supreme Court, the learned Judge who passed the order on 8-11-1980 thought that the merits needed reconsideration, h should have either sent the cash to the same learned Judge who had initial] refused bail to the respondents or might have advised the convicts to see 1c~ 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 to the Supreme Court.
10. We do realize that the learned Judge who passed the order, dated 8.11-1980 seems to have been moved by what was stated by Mst. Noon Bibi in her application, namely, that nearly all the male members of the family having been sent to Jail; she had three young daughters whose marriages were to be arranged but on account of the conviction of the respondents the same could not materialise; and further that on account of this reason the honour of her family was at stake. She had also mentioned in her application that the convict party belonged to a respectable family. She was not represented by a counsel. It can be imagined that the lady applicant, mother of Abdul Rasool and Muhammad Hanif might have. Created a scene to impress upon the learned Judge the need for an immediate action so as to save the honour of her young daughters; but howsoever pathetic it might have been, the learned Judge could not act in excess of his jurisdiction.
11. There is another aspect of the matter. In the order, dated 8-11-1980, such observation that section 307, P. P. C. Had been applied in an "arbitrary manner" or that "a simple perusal of the judgment shows that it was a case of free fight" could not at all have been made. Nor there was any occasion for the remark that the trial Court "did not properly consider the fact that two of the accused were injured and that this aspect was dealt with in a casual manner and was disposed of by mere conjectures and possibilities". All this prejudiced the case of the prosecution besides being in the nature of at least indirect aspersions on the earlier orders of the High Court and the Supreme Court.
12. There is yet another aspect which needs to be noted. Although the copy of the order of the Supreme Court, dated 6-5-1980 refusing leave to appeal in this matter was produced by the applicant lady herself before the learn-.d Judge for perusal, he seems to have kept it aside with the observation that "there is no legal bar in it for me in entertaining this application and deciding the same". No doubt a new application under section 426, C. P. C. Could be made on fresh grounds but it was not competent if the appraisal of merits earlier refused by the High Court and/or the Supreme Court was the ground or the justification for its acceptance. There are remarks in the order, dated 8-11-1980 that after the order dated 8-9-1980, which was impugned before the Supreme Court, some "other development" had taken place, namely, that on 25-3-1980, the High Court had allowed bail to Rahim Bakhsh on ground of ill health, and that another application moved by Muhammad Hayat was dismissed. These could hardly be treated as fresh "grounds" or even the fresh "development" which could justify the learned Judge passing the said order; whether on a new application on suo motu. There is no difference in the scope of jurisdiction on account of the mode of its exercise under section 426, Cr. P. C.
13. A question arises whether on the grounds stated in the application of Mst. Noor Bibi, namely, the compassionate ones, no relief at all could be granted. The answer is simple. The learned Judge did not even purport to grant the relief on such humanitarian ground; which might have been possible but for a limited period only. However, if the learned Judge wanted that the lady and her family in their peculiar circumstances should not suffer the agony, fear and suspense during the long pendency of the appeal, an appropriate action which he could take was, to fix the appeal on a short actual date for final hearing and disposal.
14. It is not necessary to make separate comment on the order, dated 16-2-1981 as it is based on and adopts the order dated 8-11-1980; about which we have already expressed our views; with respect, that it can neither be sustained in law nor could it otherwise be passed in the circumstances of this case.
15. Before parting with this order, it needs to be mentioned that the learned counsel for convict- respondents informed us that his clients remained in jail for a long time before the decision of the case and that this circumstance together with the fact that they served nearly nine months' imprisonment before they were released on bail could be taken into consideration when deciding the question of suspension of sentence. We agree that even now if a case is made out for suspension of sentence on a fresh ground, for example, as of right on ground of delay, on the basis of statutory provision. Contained in section 426, Cr. P. C., it would be lawful for the respondents to seek that relief. It is also observed that as calculated by the learned counsel himself, if the respondents would not be entitled to move an application for suspension of sentence on ground of delay for another Sear or so, they would be at liberty to move the High Court for expeditious/earl)r disposal of the appeal.