' This is a bail application filed by the. Two accused on 5th October 1986, who stand trial under section 302/34, P. P. C. Alongwith co-accused Ibraheem for murdering one Luqman by firing, who had six fire-art injuries on 10th April, 1985 in the Bazar Zhob. The F. I. R. Was lodged on the same day by one Haji Sher Jan with the Police Station, Zhob. The present two applicants had applied for bail before arrest (Criminal Bail Application No, 184/85), which was granted by the learned Sessions Judge, Quetta by his order, dated 3rd June, 1985. When the above bail application came up for hearing of confirmation of bail, the learned Sessions Judge by his order, dated 24th July, 1985 rejected the aforesaid application and recalled the interim bail order. Consequently, the present two applicants were arrested. After that, they approached the Assistant Commissioner, Zhob who by his order; dated 7th August, 1985 admitted them to bail in the sum of Rs, 1 lac each. It seems that the Deputy Commissioner upon an application filed by Akbar Khan son of deceased Luqman cancelled the order of bail by his order, dated 3rd September, 1985 and ordered their re-arrest.
They were re-arrested on 5th September, 1985. However, it seems that the Deputy Commissioner by his order, dated 21st September, 1985 held that his previous order for cancellation of bail of the present accused, dated 23rd September, 1985 was without jurisdiction. Thereupon, said Akbar Khan filed an application on 7th October, 1985 before the learned Sessions Judge, Loralai under section 497(5), Cr. P. C. For cancellation of the bail (Sessions Case No, 293 of 19851, which was allowed by an order, dated 30th September, 1986. The applicants have filed the present bail application under section 498, Cr. P. C.
' The above bail application, inter ilia, had come up for hearing before me on 25th October. 1986 when I noticed that though the order of cancellation of bail was passed upon application of said Akbar Khan son of "deceased Luqman, but he was not impleaded in the present application. I accordingly ordered a notice to said Akbar Khan. In response to the above notice, Mr. Ehsanul Haq, Advocate appeared for Akbar Khan, whereas the State was represented by Raja M. Afsar, Advocate.
2. In support of the above bail application, it was urged by Mr. Basharatullah. Advocate that since the Assistant Commissioner exercising the powers of Deputy Commissioner under the Criminal Law (Special Provisions) Ordinance, 1968 (West Pakistan Ordinance No, II of 1968) (hereinafter referred to as the "Ordinance") had taken cognizance of the matter on 27th July, 1986, the learned Sessions Judge was not competent to pass the order on 30th September, 1986 cancelling the bail. It was pointed out to Mr. Basharatullah that if factually the learned Assistant Commissioner had taken cognizance of the matter under the Ordinance, this Court has also no jurisdiction to grant bail, as the applicants would have to approach the hierarchy provided for in the Ordinance. However, Mr. Basharatullah, Advocate has referred to an unreported order, dated 10th August, 1985 passed by me in Criminal Bail Application No, 98 of 1984, whereby I cancelled the bail granted by the learned Sessions Judge, Quetta on the ground that the cognizance in the matter was taken by the learned Assistant Commissioner under section 4 of the Ordinance.' The above-unreported order is not applicable to the instant case for more than one reason, namely, under subsection (5) of section 497, Cr. P. C. It has been expressly provided that "a High Court or a Court of Sessions and, in the case of person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody." Since the bail was wrongly granted by the learned Sessions Judge, who was a Court in terms of the above subsection (5) of section 497, Cr. P. C , this Court was, competent to cancel the bail and to order the arrest of the accused and, secondly, the question whether this Court could entertain an application under section 497(5), Cr. P. C. After the taking of cognizance by this Assistant Commissioner exercising the powers of Deputy Commissioner under the Ordinance, was not adverted to. Thereupon, Mr. Basharatullah has requested that since the record of the case is before this Court, it may either convert the above bail application into an application under section 56i-A, Cr. P. C. Or may exercise revisional jurisdiction under section 439, Cr. P. C. He was allowed time on 8th November. 1986 to cite the case-law in support of his above request. The case had come up for hearing again today on 10th November, 1986, when Mr. Basharatullah has cited the following cases :-
(i) Imtiaz Ahmed v. G'hulam Ali and 2 others PLD 1963 SC 382, wherein the facts were that the election of the appellant was set aside by the erstwhile High Court of West Pakistan in exercise of Constitutional jurisdiction. The matter went in appeal. Separate opinions were written by Fazle Akbar, J. And Kaikaus, J. The latter while dealing with the matter made the following observation :- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. Ali technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
(ii) Erfan Sheikh and another v. The State 1971 P Cr. L J 486. In the above case, a Division Bench of the Dacca High Court converted a criminal appeal into a revision under subsection (1) of section 439, Cr. P. C.
(iii) He has also referred to the following passage from Woodroffe on the Code of Criminal Procedure, 1977 print, Volume III, at pages 2520 and 2521 :- "(5) How powers of High Court can be invoked.-The High Court will interfere either, by calling for record under section 435, or when the case has been' reported to it for orders under section 438, or when the case 'otherwise comes to its knowledge'. The High Court may interfere in revision upon information in whatever way received. The powers conferred by this section are at all times to be exercised and they may be put in force not merely on matters coming before the Judge in Court, but also on matters coming to his knowledge on reliable information. The High Court can exercise its revisional powers, when a case comes to the knowledge of the Court on an application made by the Government through an official communication instead of through the Law Officers of the State. The High Court has power to interfere in revision on a matter being brought to its nonce in any manner whatever not necessarily by means of an application on the part of the person convicted. It can interfere on infarction contained in a newspaper or a placard on a wait or an anonymous postcard, if it considers that sufficient grounds have been established to justify its so doing. Where the record of a case is before the High Court in an appeal which is incompetent, it can be said that the case comes to the knowledge of the High Court within the meaning of this section. 'Where an appeal to the High Court is not competent and consequently the order passed by it on the assumption that the appeal is competent is void, the order cannot be treated as one passed by the High Court in the exercise of its discretionary power.As a Court of revision."
3. On the other hand, Messrs Raja M. Afsar and Ehsanul Haq, Advocates appearing for the State and the private respondent respectively, have vehemently urged that even if it is conceded that this Court has the power to convert a bail application into a revision or an application under section 56I-A, Cr. P. C., this is not a fit case, in which, this Court should exercise discretion in the matter. In furtherance of the above submission, they have submitted that it was a broad daylight murder, of which, the F. I. R. Was lodged promptly on the very day and, in which, the present A applicants were nominated and there were certain police statements to implicate the present applicants, but the learned Assistant Commissioner without even notice to the State admitted the applicants to bail.
4. I would not like to comment upon the merits of the case, as it may prejudice the present applicants. However, I may observe that Mr. Basharatullah, learned counsel for the applicants is unable to cite any case-law in support of his contention that a bail application can be converted into a revision application under section 439, Cr. P. C. Or into an application under section 561-A, Cr.
P. C. There seems to be no case: It is a well-settled principle of law by now that an appeal can be converted into a revision or even a writ petition can be converted into an appeal. In this behalf, reference may be made to the case of Mst. Akhtar Nasimi v. Martial Law Administrator, Zone "C", Karachi and 2 others (1), in which the facts were that a number of writ petitions were filed against the ejectment orders passed by the Military Courts under the Martial Law Order, passed by the Martial Law Administrator, Zone "C". While the above petitions were pending, the Martial Law Administrator, Zone "C" issued Sind Military Courts (Validation of Orders) Ordinance (I of 1980), section 2(2) of which provided right of appeal within 30 days from the date of the above Ordinance. The petitioners in the aforesaid petitions did not file any appeal, but remained contented with the petitions. When the above petitions came up for hearing, it was urged that in view of the above Ordinance, the petitions were not competent, as the right of appeal was provided and the orders passed by the Military Courts were deemed to have been passed by the Rer.t Controller. I while sitting with Mr. G. M. Kourejo, J. Converted the Constitutional writ petitions into appeals, as the dictates of justice so demanded, and observed as follows :- "4. (a) From the above-cited cases, it is evident that the Court with the view to foster justice may take appropriate action or to adopt a procedure which is not provided for if it is not expressly prohibited by any provision of law. Since there is no express prohibition against the conversion of a writ petition into an appeal, the Court has inherent power to adopt above procedure in a fit case in the interest of justice. Mr. Said A. Shaikh, learned Advocate- {{FOOT NOTE}}
(1) PLD 1982 Kar. 130 {{FOOT NOTE}} General Sind, also submitted that this Court has requisite power to convert the above petitions into appeals. The learned counsel for the private respondents were unable to cite any case to canvass conversely. On the other hand, they conceded that this Court can convert a writ petition into an appeal."
5. I am inclined to take the view that in a fit case even a bail application can be converted into a revision or into an application under section 561-A, Cr. P. C. If the dictates of justice so demand in the absence of any express prohibition. However, I may point out that the latter section (i,e, 561 A, Cr. P. C.)- cannot be pressed into service, if there is a specific provision in the Cr. P. C. Or in other relevant statute providing the remedy in respect of action/order complained of. In this regard reference may be made to the case of Muhammad Samiullah Khan v. The State (I). Furthermore, the High Court may act under above section 439, Cr. P. C. Upon an information received through any mode, if the circumstances of the case, so warrant and if it will foster the ends of justice.
6. Adverting to the instant case, I do not see any justifiable reason to exercise the discretion in favour of the applicants. The applicants are accused in a murder case, which was allegedly committed in broad daylight, therefore, the above bail application is dismissed, subject to the right of the applicant to file appropriate proceedings before a Court of competent jurisdiction.
' The above are my reasons in pursuance of short order of even date.
(1) PLD 1963 SC 237