This is an application for admitting Ghulam Hussain to bail in a case under section 325, P. P. C. It arose in the following circumstances.
2. (a) On the 23rd August 1969, at 1-00 p. m. Malik Barkat Ali lodged a first information report at Police Station, City Gujrat, alleging that at about 8-30 a. m. The same day, he had been assaulted by Ghulam Hussain alias .Gaman, with an iron rod. He alleged that he had received a complaint that Ghulam Hussain would tease the girls of the Mohallah and he, therefore, admonished him to behave properly, whereupon Ghulam Hussain abused him and when he (informant) protested, Ghulam Hussain assaulted him with an iron-rod, causing injuries on the back of his right hand. The occurrence was witnessed by Abdul Rashid, shopkeeper.
(b) On the 27th August 1969, the trial Court enlarged Ghulam Hussain on bail. On the 25th September 1969, the bail was cancelled, as the PDSP reported that the petitioner-accused was tampering with the prosecution witnesses and was threaten--ing them.
(c) The petitioner applied to the Additional Sessions Judge, Gujrat, for bail and by order dated the 1st October 1969 he was admitted to bail on his furnishing security in the sum of Rs. 10,000. S. Abdul Rashid and Sh. Muhammad Saeed, prosecu--tion witnesses, reported to the police that the petitioner-accused had threatened them with dire consequences, if they appeared as witnesses against him: Again an application was made for cancellation of the bail. Mr. Abdullah Jan Mirza, Sessions Judge, Gujranwala, by his order dated the 20th November 1969, cancelled the bail and directed that the petitioner be kept in the judicial lock-up until the evidence of the aforesaid two witnesses had been recorded. He also directed that the evidence of the two witnesses should be recorded within two weeks and the magistrate, therefore, could consider the question of bail afresh on merits.
(d) On the 28th November 1969, the petitioner submitted Criminal Miscellaneous No. 7098 of 1969 in the High Court for grant of bail. Mr. Justice Shaukat Ali examined the matter and concluded as follows: - "---------.While cancelling the bail he made a direction that the evidence of Sh. Abdur Rashid and Sh. Muhammad Saeed should be recorded within two weeks. This being the situation, the order of the learned Sessions Judge, cannot be said to be erroneous. He has exercised his discretion properly. No good ground has been made out to admit this petition. Dismissed in limine."
(e) The petitioner claimed that at the time of the alleged occurrence he suffered as many as five simple injuries by a blunt weapon. Accordingly, he filed a complaint against Malik Barkat Ali. This complaint, however, was dismissed by the trial Court.
(f) On the 16th December 1969, the petitioner moved for transfer of the challan from the Court of Mr. Hamid Ahmad Sethi to some other Court. The effect was that no further proceedings in the challan could be held and the statements of Sh. Abdul Rashid and Muhammad Saeed could not be recorded and, therefore, the learned Magistrate could not have any occasion to consider the matter of bail of the petitioner.
3. Under the aforesaid circumstances, Ghulam Hussain made the present petition for bail. The grounds for bail have been detailed in paragraph 4 (a) to (g).
4. A notice was issued to the State. Malik Muhammad Akbar, Advocate, appeared on behalf of the State and resisted the petition. According to the learned counsel, the matter having been examined by Mr. Justice Shaukat Ali, in the order dated the 28th November 1969, the petitioner could secure the bail from the Supreme Court but could not be admitted to bail by this Court.
5. Mr. S. M. Masud, learned counsel for the petitioner, contended, inter alia, that the petitioner having been admitted to bail by the Additional Sessions Judge, in his order dated the 1st October 1969, the Sessions Judge, Gujranwala, was not com--petent in his order dated the 20th November 1969, to cancel the bail, with the result that the said order was illegal and the peti--tioner was entitled to be on bail as before.
6. The following three points require consideration
(a) Whether, under the circumstances of the case, on merits the petitioner is entitled to Bail 7
(b) Whether, the order dated the 20th November 1969, passed by Mr. Abdullah Jan Mirza Sessions Judge, Gujranwala, is valid and, if not, what is its effect on the previous order dated the 1st October 1969, passed by the Additional Sessions Judge, Gujrat ?
(c) Whether, in view of the order passed by Mr. Justice Shaukat Ali on the 28th November 1969, this Court is compe--tent to admit the petitioner to bail ?
7. I have examined the record of the trial Court. Malik Barkat Ali received the following injury: - "An incised wound 1/4" x 1/8" x 1/4" with adjoining swelling over the back of the right hand. The underlying bone is fractured."
The same day at 7-00 p.m., the same doctor examined the petitioner, and found five simple injuries caused with a blunt weapon. A perusal of the first information report would show that the occurrence took place without any premeditation. It is hardly necessary to examine the matter in greater detail. Suffice it to say, that if in the scuffle Malik Barkat Ali suffered one griev--ous injury at the back of his hand and the petitioner suffered five simple injuries, it is fit case for enlarging the petitioner on bail PLD 1963 Lah. 279 relied upon.
8. A Sessions Judge and an Additional Sessions Judge, having jurisdiction in a Sessions Division, shall be deemed to be functioning as one Court of Session. (Vide section 9 of the Criminal Procedure Code.) In every sessions division, there is one Court of Sessions although it may be manned by several Judges, that is to say, one Sessions Judge and other Additional Sessions Judges. For purposes of assignment of work by the Session-, Judge to an Additional Sessions Judge, reference may be made to section 17 and section 409 of the Criminal Procedure Code.
There is no dispute and as such it is common ground that Mr. Muhammad Ashraf, Additional Sessions Judge, competently passed the order dated the 1st October 1969, admitting the petitioner, to bail. The complainant then brought to the notice of Mr. Abdullah Jan Mirza, Sessions Judge, Gujranwala, "new matter", namely, reports made by Sh. Abdul Rashid and Muhammad Saeed to the police that the petitioner threatened them with dire conse--quences, and thereupon the Sessions Judge, in his order dated the 20th November 1969, cancelled the bail. This cancellation of bail is fully warranted by the provisions of subsection (5) of section 497, Cr. P. C. There is no warrant in the contention that where a Sessions Judge grants bail in a case pending before a Magistrate, he cannot subsequently cancel it. In this connection, it is advantageous to reproduce the following passage from the case reported as Kefatullah Paramanid and others v. The State (PLD 1965 Dacca 150).
"At one stage it was thought that if a Sessions Judge grants bail pending in a case before the Magistrate, he cannot subse--quently cancel it. We would make it clear that a Sessions Judge who grants bail, may also cancel it if, on some new materials brought to his notice, he feels inclined to do so."
It` is needless to point out that a contrary view expressed in Ahmad and others v. Crown (PLD 1950 Lah. 280) was disapproved by the Federal Court in Gustasab Khan v. Crown (PLD 1956 FC 117). It follows that the order dated the 20th November 1969, is valid in law. The contention raised by Mr. S. M. Masud is without force.
9. Mr. Justice Shaukat Ali examined the matter and con--cluded that the Sessions Judge, in his order dated the 20th November 1969, had properly exercised the discretion. Had the matter rested there, I would not have interfered with it. The situation, however, has since undergone considerable change petitioner's complaint has been dismissed and he has applied c for transfer of the case, with the result that statements of Sh. Abdul Rashid and Muhammad Saeed cannot be recorded.
That being so, the petitioner shall continue to be behind bars until the application for transfer is finally decided and the statements of Sh. Abdul Rashid and Muhammad Saeed are recorded by a competent Court. Certainly, this shall take a considerably long period. Consequently, the duration of confinement of the peti--tioner shall be inordinately longer than that which may be com-- mensurate with the alleged offence under section 325, P. P. C. This Court, `is, therefore, competent to reassess the modified situation and pass a suitable order, notwithstanding the order dated 28th November 1969.
10. Petitioner be admitted to' bail on his furnishing security in the sum of Rs. 10,000 (Ten thousand) with one surety in the like amount to the satisfaction of the trial Court. This was the amount, which was considered proper in the order dated the 1st October 1969.