1. ' This is an application under section 497(5), Cr. P.0 filed by Noor Muhammad complainant for cancellation of bail granted to Shakeeluddin Ahmed, respondent by the Third Additional Sessions Judge Karachi on 5th November, 1983 in a Sessions Case (No, 722/1983) pending in his Court under sections 302, 307, 34, P.P.C. According to the prosecution case, on 9th August, 1983, applicant Noor Muhammad lodged an F.I.R. At 6-30 a.m. At Korangi Police Station Karachi, which was registered under sections 302, 307, 34, P.P.C. Noor Muhammad has stated in his complaint that on 9th August, 1983 at about 1-30 a.m. Due to failure of electric supply, he was sitting outside the house with his neighbour, when Najamuddin, Javed, Raees who were also sitting there, they told him that his father had suffered a knife blow from one Azad with whom he later compromised and they paid for his father's medical charges which he has not been able to pay as yet. On his 'protest, the three 'brothers named above slapped him. He was rescued by other neighbours. He lodged report of this incident at Korangi Police Station. Next, day about 6-30 a.m. While he was going to get milk from a Hotel. He was caught by the all four brothers namely, Najumuddin, Javed, Raees and Shakeeluddin Ahmed. Raees stabbed him on his chest, on this Muhammad Shafi's uncle came to rescue but he was also caught by the respondent, Najumuddin, who had an iron rod while Javed stabbed him.
2. His maternal-uncle Rafiq came. He too was beaten. The above-said incident was witnessed by Ismail, Yaseen, Waseem, Rafiq and Yaqoob, who intervened and rescued them. Muhammad Shafi, injured was removed by Yagoob and Ismail in a taxi to hospital where he succumbed due to injuries.
3. ' Police during the course of investigation arrested accused Najamuddin, Raees and Javed, all the three brothers alongwith Shakeeluddin Ahmed who was shown as absconder. The challan was filed on 20th August, 1983.
4. ' On 3rd October, 1983 respondent/accused Shakeeluddin appeared before the Third Additional Sessions Judge, Karachi before whom the case was pending. He filed an application for bail before arrest under section 498, Cr. P.C. And learned Additional Sessions Judge on the very date granted interim bail before arrest with notice to Assistant Prosecutor, and the matter was fixed for 12th October, 1983. Finally he confirmed the bail by an order, dated 5th November, 1983. Being aggrieved with the order of bail before arrest granted to the respondent, the applicant has filed this cancellation application.
5. ' I have heard Mr. Ahmad Khan Barakzai, learned Advocate for applicant and Mr. Mustahsan Siddiqui, learned Advocate for respondent and Mr. A. A. Muhammadally A.A.-G. For the State. Mr. Ahmad Khan has contended that the learned Additional Sessions Judge has completely decided the entire case and observations made in the order have clearly prejuced the case of prosecution.
6. Mr. Ahmad Khan, argued that learned Additional Sessions Judge was not competent to grant bail before arrest in view of the legal position. Mr. A.A. Muhammadally, Asistant Advocate-General has fully supported the cancellation application and argued that this incident has taken place in broad daylight and as many as 10 witnesses saw the incident and named the respondent Shakeeluddin as accused person alongwith the other co-accused. He is also of the opinion that bail before arrest can only be granted in some exceptional circumstances, and in the instant case the order of the learned Additional Sessions Judge is liable to be set aside. He also made submission that this order will clearly prejudiced the mind of the trial Judge, therefore, the case be handed over to another Judge for trial. On the other hand Mr. Mustahsan Siddiqui has submitted that no overact is assigned to the respondent in the F.I.R. And he has been involved due to enmity and that on the day of incident the respondent was in Bahawalpur. The relevant, documents were produced before Additional Sessions Judge, who considered the plea of alibi and granted the bail before arrest. He has relied upon a case reported in PLD 1978 SC 56.
7. ' I have gone through the impugned order of the Additional Sessions Judge and reproduce the relevant portion, so far alibi is concerned as under:- "The paramount question for consideration in a case where plea of alibi raised is to the effect that Court while considering such plea is bound to give decision on the basis of evidence prima facie appear in case and that assessm ent is tentative shifting of evidence which is altogether different from ellaborate shifting of evidence. I am supported in this view by an authority reported in PLD 1975 SC 256. The contention of learned counsel for the complainant that superior Courts do not grant bail before arrest on the plea of alibi is overruled by fact that in case an accused was admitted on bail before arrest in a case under section 302/436, P.P.C. By Honourable High Court and application for cancellation was made in Honourable Supreme Court and it was held by Honourable Supreme Court that bail before arrest on the plea of alibi can be considered. This is reported in 1975 SCMR 219. There are sufficient documents on record to show that applicant was present in Bahawalpur on the day of incident. Senior Advocate of Bahawalpur filed affidavit in support of contention of applicant. It is, therefore, prima facie proved for the purpose of bail that plea of alibi has got substance and I am inclined to accept that the case of the present applicant required further enquiry."
8. ' From the perusal of this part of the order it is clear that the learned trial Judge while making observations on the alibi categorically stated that "there are sufficient documents on record to show that the applicant was present in Bahawalpur on the day of incident." By making this observation be virtually has given his findings on this point and exonerated the accused. This order will ultimately effect on the disposal of the entire case. So far as the allegations against the respondent are concerned, no doubt no overt act has been alleged against this accused in the F.I.R. Except that he caught hold of complainant. From the perusal of the police papers of the case, it appears that other prosecution witnesses, Salim Ahmed, Muhammad Rafiq, Shamim Ahmed, Abdul Aziz, Ghulam Nabi, Muhammad Yaqoob, Muhammad Ismail, Muhammad Yaseen and Fateh Muhammad, have stated in their statement that the accused Shkeeluddin Ahmed was armed with an iron rod and subsequently he jumped over the roof of the house, and threw a cement block at the injured and deceased. Prima facie this shows that specific part has been assigned to this accused/respondent. The respondent is a Government servant. This incident took place on 9th August, 1983 but the respondent appeared for interim bail after about 1-3/4 months. Had he actually been in Bahawalpur on the day of incident, he should have immediately on his return appeared before the Court and prayed for bail or he should have appeared before the concerned Police Officer and informed him about the situation. On the contrary his late apperance clearly shows that he intentionally absconded. The proper course for the learned Additional Sessions Judge was that while he making order for Interim Bail should have directed the respondent to appear before the police for investigation purpose and all those documents on which reliance was placed by the applicant have been forwarded to the concerned Investigation Officer for necessary action. In the present case no such procedure has been adopted. The principles for the grant of bail before arrest have been laid down in a case of Murad Khan v. Gazal Subhan and others PLD 1983 SC 82. In another case of Muhammad Sarwar v. State 1983 SCMR 645 their Lordships have held that bail before arrest is not the Rule in the cognizable offences and it is to be allowed only when it can be shown that the applicant apprehends arrest due to some other ulterior motives on the part of the authorities or other influential persons which would justify the exercise of descretionary powers by the High Court or the Sessions. In the "present case no such features are available for bail before arrest. Incident had taken place during the day time. The F.I.R. Has been lodged immediately Muhammad Shafi died while two others received injuries. Therefore, prima facie case under section 302/307/34, P.P.C. Has been made out.
9. ' The bail granted to Shakeeluddin Ahmed is hereby cancelled and order of the Additional Sessions Judge is set aside.
10. ' There is also a point for consideration whether the Additional Sessions Judges are competent to grant the bail before arrest. On this there are specific provisions in the Criminal Procedure Code by which Additional Sessions Judges have jurisdiction and can take cognizance of the matters.
11. ' Additional Sessions Judge can try only these cases which Sessions Judge by General or Special Order make over to them. Subsection (2) of section 193, Cr. P.C. Reads as under:- "Additional Sessions Judges and Assistant Judges shall try such cases only as the Provincial Government by General or Special order may direct them to try or as the Sessions Judge of the division by general or special order may make over to them for trial."
12. ' Section 409, Cr.P.C. Provides the procedure of disposal of appeals by the Additional Sessions Judges. Section 409, Cr. P.C. Reads as under:- "An appeal to the Court of Sessions or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge. Provided that an Additional Sessions Judge shall hear only such appeals as the Provincial Government may, by general or special order, direct or as the Sessions Judge of the division may make over to him."
13. ' So far Revisional Jurisdiction is concerned Additional Sessions Judges may hear the revisions in accordance with procedure laid down in 439-A(2), Cr.P.C. Which is as under:- "An Additional Sessions Judge shall have and may exercise all the power of a Sessions Judge under this Chapter in respect of any case which may be transferred to him under any general or special order of Sessions Judge."
14. ' There is no provision in Cr.P.C. For disposal of bail application by the Additional Sessions Judges.
15. No doubt they can hear bail applications of the cases which have been transferred to them when accused is in custody. But so far bail before arrest and bail after arrest in the cases which are not on the file of Additional Sessions Judges. I am of the view that they cannot dispose of such matters until and unless they are incharge of the Sessions Division. Under section 498 specifically the word "High Court or Court of Sessions" have been incorporated whereby concurrent jurisdiction is given to High Court and Court of Sessions in this section when under section 497, Cr.P.C. The Court having jurisdiction to try the case and on other grounds Court can entertain bail application which also includes the Court of Additional Sessions Judge as trial Court. Under section 17(4), Cr.P.C. The Sessions Judge may also when he himself is unavoidably absent or incapable or acting make provision for the disposal of any urgent applications. Therefore, bail applications being of urgent nature could be disposed by the Additional Sessions Judges when Sessions Judge is absent or incapable of dealing with these matters. My view gets support from case of Mupal v. Ghulam and others PLD 1953 Lah. 110, where it has been held that Additional Sessions Judge does not become a Court of Sessions for the purpose of section 498, Cr.P.C. Unless the Notification appointing him as Additional contains a direction to that effect or until the Sessions. Judge by a general or special order assigns any application or applications under that section to him.
16. ' I am of the opinion that Sessions Judge can only transfer the application under section 498, Cr.P.C.
17. To the Additional Sessions Judge when he is incapable of acting otherwise as provided under section 17(4) Cr.P.C. Before parting with this order I feel, that observations made by learned Additional Sessions Judge in his bail order will prejudice the case of prosecution. Therefore I suggest that Sessions Case No, 722/83 be tried by learned Sessions Judge, Karachi himself or he may transfer the same to other Judge.
18. ' The observations in this order are of tentative nature and should not be taken into consideration at the time of deciding the case. It is open to the respondent to repeat application after his arrest if so advised. Bail cancelled.