The facts leading to the filing of the present petition are as follows :- Mehr Din lodged F. I. R. On 24-7-1977, at Police Station, Pattoki, under sections 148, 307, 302!149, P. P.
C. According to the prosecution version, Alamdar Hussain (respondent in this petition), Mumtaz Ali, Ata Muhammad, Safdar Ali and Nazar Hussain committed the murder of Asghar alias Shooka and attempted on the life of Muhammad Tufail P. W. It was alleged that Alamdar Hussain respondent armed with chhura and Mumtaz Ali co-accused armed with knife inflicted injuries to the deceased, whereas Safdar Ali co-accused had caused injuries to Muhammad Tufail P. W. Ata Muhammad brandished his chhuri and shouted that no person should come forward. Nazar Hussain co- accused shouted that they had taken the revenge and fired rifle shots in the air in order to threaten the persons. The occurrence was stated to have been witnessed by Mehr Din, Muhammad Tufail, Muhammad Yousaf and Khushi Muhammad. Challan was submitted against Mumtaz Ali, Safdar, Ata Muhammad and Nazar Hussain co-accused. Alamdar Hussain respondent was shown as absconder and proceedings under section 512, Cr. P. C. Were taken against him. The four co- accused mentioned above were acquitted by the learned Additional Sessions Judge, Kasur, vide judgment dated 22-12-1979. The trial Court disbelieved motive, recoveries and the ocular evidence.
Khushi Muhammad, one of the eye--witnesses, bad not supported the prosecution case and he was declared hostile. Muhammad Yousuf eye-witness was given up. Mehr Din com--plainant was the father of the deceased while Muhammad Tufail was his relative. According to learned Additional Sessions Judge, the statements of Mehr Din and Muhammad Tufail were full of improvements and con--tradictions. It was also held by the learned Additional Sessions Judge that the case had been registered seven/eight hours after the arrival of the Police at the spot. Alamdar Hussain respondent surrendered himself before the learned Sessions Judge, Kasur, and submitted an application for bail. He was submitted to interim bail vide order dated 1-3-1981 on the ground that four co-accused had already been acquitted by a Court of competent jurisdiction. The interim bail allowed to the respondent was confirmed by the learned Sessions Judge vide order dated 28- 3-1981. While confirming the interim bail, the learned Sessions Judge observed in the order that there was a case-law to the effect that absconsion ;vas not a bar to the grant of bail. . It was further observed that as the four co-accused had already been acquitted, the case of the respondent was fit for bail. .Dissatisfied with the said order, Mehr Din complainant moved an application in the Court of Session, on 9-4-1981, under section 497(5), Cr. P. C. For the cancellation of the bail of respondent. This application was disposed of vide order dated 3-5-1981. The petition for cancellation of bail was dismissed. Mehr Din moved the present petition on 21-5-1981 under section 497(5), Cr. P. C. With a prayer that the bail of the respondent be cancelled. This application was dismissed by this Court vide order dated 24-5-1981. The relevant order in para. No. 2 is being reproduced for the sake of facility :- "The learned counsel has mainly argued that being an absconder the respondent was not entitled to the grant of bail. But it is not a rule of universal application. The reasons for bail that prevailed with the learned Sessions Judge cannot be said to be arbitrary or fanciful. In an event, I would not like to interfere with the discretion exercised by the learned Sessions Judge at this stage. The petition is, therefore, dismissed."
Against this order, Mehr Din filed application under section 561-A, Cr. P. C. With a prayer that the said order be recalled and a legal and formal speaking judicial order be passed and the bail allowed to the respondent be cancelled.
2. An objection had been raised on behalf of the State as well as by the learned counsel for the respondent that the petition filed under sec--tion 561-A, Cr. P. C. Was not maintainable. The learned counsel for the petitioner cited Ghulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD1970SC335,and contended that High Court could in its inherent jurisdiction recall or reverse an order made by it because section 369, Cr. P. C. Did not control section 498, Cr. P. C. And provisions of section 561-A, Cr. P. C. Could be invoked in suitable cases. It was submitted by the learned counsel for the petitioner that this Court did not take into consideration the grounds mentioned in paras. No. 5(a) to (h) and also did not consider the authorities, which were referred to in the said application and urged at the time of the hearing of the petition. It was further contended that the respondent remained absconder for nearly three and a half years and if absconders were given bail then most of the accused would remain fugitive till the disposal of cases and would appear only after the acquittal of the co-accused and that it would give an encouragement to the accused ; that the Sessions Judge wrongly observed in his order dated 3-5-1981 that the accused had not absconded and there was no material on the record to make such an observation.
3. The learned counsel for Alamdar Hussain respondent submitted that if the tendency of repeating the applications is not checked, then in every case several applications would be filed, which would make the working of the Court impossible. On merits, it was urged that four co-accused were put to trial and after the entire evidence was produced by the prosecu--tion, they were acquitted of the charges ; that neither the State filed an appeal against the judgment of acquittal nor the complainant filed the revision petition and thus the said judgment had attained finality. The learned counsel for the said respondent placed a proposition that when the Investi--gating Officer comes to the conclusion that an accused person is innocent, his case falls under section 497(2), Cr.
P. C. And he is admitted to bail but in the present petition the case of the respondent was at better footing because the prosecution version had been disbelieved . After full-fleged trial and the four co-accused including Mumtaz Ali, who had inflicted knife blows to the deceased had been acquitted and it was not understood as to how the petitioner could object to the grant of bail. It was further pointed out that the challan had already been submitted in Court and the case was being delayed on account of the present petition. The learned counsel was of the view that the present petition should have been disposed of by the Bench, which passed the order on 24-5-1981.
4. I would first dispose of the last objection of the learned counsel for respondent. There are several reported judgments where it has been held that ordinarily the second matter should be placed before the same Bench/ Court, which disposed of the earlier matter. The learned Judge, who passed order on 24-5-1981, proceeded on Haj and after the performance of Haj was not available for Court work due to sickness and it was not known as to when the learned Judge would be available for Court work. It was under these circumstances that the petition was placed before this Bench. The word "ordinarily" used in this context was meaningful. There could be several possibilities, for example the learned Judge, who passed the earlier order might retire from service or might proceed on long leave. Now the circum--stances have changed and the Judge, who passes an order might be sent to another Bench and might not be available for a year or so. The objection of the learned counsel for the respondent that the petition should be disposed of by the same Bench is overruled.
5. The first petition filed on 21-5-1981 was substituted by petition dated 6-8-1981 and again by petition dated 12-10-1981. The petitions were substituted under orders of this Court as the first two petitions contained scandalous matters. A notice of contempt was issued to Mr. Yusuf Ali Khan, Advocate and he raised objection that the notice was premature as according to him, notice could not be issued till the matter was finalised and no further appeal, revision or review was competent.
The second objection was that the notice was not in consonance with the provisions of section 7(1) of the Contempt of Court Act, 1976. Contempt proceedings were ordered to be kept pending till the disposal of Criminal Miscellaneous No. 1364/B of 1981.
6. The foremost point for consideration is as to whether or not the contentions of the petitioner in the, petition for cancellation had been consi--dered in the order dated 24-5-1981 passed by this Court. Paras. 1 to 4 were introductory in nature. The grounds of cancellation of bail had been mentioned in paras. No. 5(a) to (h). There was allegation against the Sessions Judge in para. 5(a) to the effect that Asghar Bashir Gora, Advocate had met the Sessions Judge on 3-5-1981 after the hearing of the petition fur cancellation of bail and the said Advocate informed Malik Sardar Ali an uncle of Alamdar Hussain respondent that the application for cancellation of bail was dismissed.
No observation could be made by this Court in the impugned order unless there was an inquiry and finding against the Sessions Judge. The point urged in para. 5(b) was that the Sessions Judge had given no reason in the impugned order dated 28-3-1981 for granting bail to the respondent and relied upon case-law, which did not exist. This was not the correct position. The learned Sessions Judge in his order dated 28-3-1981 allowed bail to the respondent mainly on the ground that the four co-accused of the petitioner had already been acquitted. It was further observed in the said order that there was case-law to the effect that absconsion was not a bar to the grant of bail. Contention of the accused had been noted that he always remained in the village and that he never absconded. The learned Sessions Judge did not mention in the said order that Alamdar Hussain respondent had never absconded. In para. 5(c) the point agitated was that the Sessions Judge placed reliance on case titled Muhammad Nazir v. The State1974 P Cr. L J Note 159 at p. 98, whereas the case cited by the peti--tioner Khushi Muhammad v. Muhammad Hanif and 3 others1980 SCMR 616wherein it was held that the absconder was not entitled to pre-arrest bail, was glossed over. The facts of the case cited by the learned counsel for the petitioner were quite distinguishable from the facts of the present case. The facts of the cited case were that one case was registered under sections 302, 307/34, P. P. C. While cross-case was registered under section 307/324/34, P. P. C. The evidence in the murder case had concluded. The arguments could not be heard in the said case as the cross-case had not yet started. The accused in the murder case were admitted to bail on the ground that the accused of the cross-case had been absconded. The accused of the cross-case applied for bail before arrest but their bail petition was dismissed on the ground that they were fugitive from justice and were declared proclaimed offenders as they were avoiding appearance before the trial Court. There is no dispute about the proposition that where an accused person absconds .For a pretty long time, he disentitles himself to the concession of bail. But in the present case, the circumstances were quite different and the authority referred to by the learned counsel for the petitioner had no application. The co-accused had been tried and acquitted by a Court of competent jurisdiction. This fact prevailed upon the learned Sessions Judge and he allowed bail to the respondent. The case titled Gul Hassan and another v. The State
(1) referred to in para. 5(d) had also no application to the facts of this case. In the said case, the accused had decamped from Police custody while in transit to District Jail after his conviction by the trial Court but before absconding, he executed power of attorney in favour of a person for the purpose of filing appeal. It was held that in such circumstances, the accused had forfeited the right of audience and before claiming right of audience, , the concerned person should submit to the process of justice. It was also held in the said authority that absconsion of the accused was a corroborative circumstance. Benefit of doubt was given to two but conviction of the remaining two was maintained in appeal as they had absconded after occurrence. Since the facts of the reported case were not applicable, the said judgment was rightly not considered. It was held in case titled Tawalb Khan and another v. The State (2) that the maxim ` falsus in uno falsus in omnibus" had all along been discarded by the Courts in this country and grain had to be sifted from the chaff. The facts of the case titled Chan Shah v. The Crown(3) were that Chan Shah was convicted and sentenced to death by the order of the Lahore High Court made upon appeal filed by the Provincial Government against his acquittal by the Sessions Judge. Chan Shah was on bail pending appeal against his acquittal but did not surrender himself to authorities on conviction by the High Court.
Chan Shah, as a fugitive from justice, presented himself before an attorney and signed a power- of---attorney in his favour for the presentation to the Federal Court a petition for special leave to appeal. The petition was duly made and counsel appeared on behalf of the Chan Shah. It was field in the said case that the Court would not act in aid of a person, who was a fugitive from justice and the petition was accordingly dismissed. The said authority had also no appli--cation to the facts of this case. In para. 5(e), it was stated that the record of the case revealed that the accused had absconded. The Sessions Judge in his order dated 28-3-1981 nowhere mentioned that the respondent had not absconded. He only noted the contention of the respondent that he never absconded and remained in his village. In para. 5(f ), it was stated that the acquittal of the four co- accused had no bearing on the petition of the respondent for bail. I cannot agree with that submission. In para. 5(g), it -was stated that in the impugned order, it was recorded that there was.
Case law to the effect that absconsion was not a bar to the grant of bail, but, no such authority had been cited. The learned counsel was probably referring to the order dated 3-5-1981 whereby the petition for cancellation of bail was dismissed. The main order was dated 28-3-1981, whereby the bail had been allowed and in that order, no such word appeared. In para. 5(h), it was stated that one of the grounds for grant of bail was that the respondent himself surrendered. There was a passing remark in para. No. 3 of the order that the respondent himself surrendered before the Court along with the bail application and he was admitted to ,interim bail. In the next sentence, the reason for bail had been recorded, wherein it was stated "as the four co-accused of the petitioner have already been acquitted, it appears to me that the case of the petitioner is fit for the grant of bail. As such, petitioner Alamdar Hussain is admitted to bail and the interim bail already granted to him its confirmed".
(1) PLD 1969 SC 89(2) PLD 1970 SC 13
(3) P' L D 1956 FC 43
7. There were two presumptions in favour of the respondent ; the first being the inherent one that every accused is presumed to be innocent unless his guilt is proved and the second that after full- fleged trial, prosecution story was disbelieved by the learned Additional Sessions Judge and all the co-accused had been acquitted including the one, who had caused injuries to the deceased with knife.
8. I find force in the contention of the learned counsel for the respon--dent that normally bail is allowed to an accused person under section 497(2), Cr. P. C.. Where the Investigating Officer comes to the . Conclusion that the accused is innocent and places his name in Column No. 2 of the challan. How bail could be refused to an accused person whose co-accused had been acquitted after the trial Court came to the conclusion that the prosecu--tion story was not believable. It was rightly contended that the case of the respondent was at better footing than the case of the accused, who is found innocent in the investigation of the case and whose name is placed in column No. 2 of the challan.
9. The Courts are not supposed to incorporate each and every word uttered by the learned counsel for the parties, and it is not necessary to quote every judgment referred to by the learned counsel for the parties if it is not relevant. The power of grant of bail is discretionary. - This Court ordinarily does not interfere in the exercise of discretion of the lower Courts but it does interfere in those cases where discretion is injudiciously exercised. In case the learned Sessions Judge had exercised the discretion In the present and thus there was no ground for the cancellation of bail of the respondent. The contentions had been considered by this Court in order dated 24-5-1981.
10. The Courts always discourage the tendency of repeating petitions in the same Courts for bail/cancellation of bail or recalling the earlier order. Such petitions are entertained only when new and fresh grounds are made out. Since there does not appear any fresh ground for recalling the earlier order passed by this Court on 24-5-1981, the present petition filed under, section 561-A, Cr. P.
C. Is misconceived and not maintainable. Even on merits, the petitioner has no case. Hence on both these grounds, the petition is dismissed.