' The common accused/applicant in these two Criminal Bail Applications is charged with offences under sections 365, 147 & 149, P.P.C. Read with section 13-D of the Arms Ordinance in Crime No,22 of 1986 of Police Station Mohabat Dero Jatoi District Nawabshah, and under section 365/452/147/149, P.P.C. Read with section 13-D of the Arms Ordinance in Crime No, 25 of 1986 of the same police station. Bail application in the context of Crime No,22 of 986 was moved in the Court of Session at Sukkur but was dismissed for non-prosecution on 16-12-1987. Another bail application on the ground of delay came to be ultimately ejected on 26-10-1988. Bail sought in Crime No,25 of 1986 was disallowed, but in such context on merits, on 3-12-1988.
2. Applications for bail, under section 498, Cr.P.C. Were, then, moved in this Court, which were heard by me at Hyderabad and disposed of per orders dated 30-3-1989. The plea advanced, at the time, was that the occurrence in relation to Crime No,22 of 1986 took place on 29-4-1988 and that in the context of Crime No, 25 of 1986 on 2-5-1986 whereas the applicant, Sadoro Chandio, already in custody in another set of proceedings, was ordered to be released on bail in such proceedings on 30-4-1986 and surety was offered and accepted only on or after 4-5-1986, thereby providing an alibi for the alleged occurrences on 29-4-1986 and 2-5-1986. Since such plea was not pointedly taken in the Court of Session, it was, by consent, directed that the applicant may move that learned Court for consideration of the same. In the meantime, the bail application in this Court was dismissed.
3. It would appear that another set of applications, in pursuance of referred orders dated 30-3- 1989, was moved and, separately, came up for consideration before the Vth Additional Sessions Judge, Sukkur, who has rejected such applications, on the ground that since such ground of alibi was not raised at the time when the first set of bail applications was moved and as the requirement of law was that a ground available at the time of moving bail application, if not availed of, could not be agitated again, the plea, based on alibi, could not be entertained. These orders of dismissal have occasioned the present bail applications in this Court, which are disposed of through this common order.
4. In so far as the question of disposal of a bail application on merits is concerned that issue does not get foreclosed merely because shortly, thereafter, another bail application is moved on the ground of statutory delay. There is no period of limitation prescribed for moving this Court under section 498, Cr.P.C. For seeking bail where a subordinate Court has refused it, either under section 497, Cr.P.C. Or, where the Court concerned is the Court of Session, even under section 498, Cr.P.C.
Itself. However, this Court has to be approached without unreasonable delay. It is also not uncommon that where successive applications are made, one after the other, in a Court subordinate to this Court, the intervening time between such applications being in close proximity, the grievance of rejection of each application can be conjoined in a single application under section 498, Cr.P.C. Since, apparently, the orders on both the applications germane to Crime No, 22 of 1986, so rejected, were questioned in this Court, it was, by consent, ordered that in addition to the ground of alibi, the applicant may agitate before the Court of Session, as and when that Court was moved, all such grounds as may be available to him at law. Bail plea, as regards Crime No,25 of 1986 involved merits alone and similar order applied to that as well. The learned Court, however, has taken the view that even the ground of alibi could not be raised, as the same was not raised in the first instance when bails were sought from that Court.
5. It must be remembered that the jurisdiction of this Court under section 498, Cr.P.C. Is not merely.
Ancillary or subsidiary to sections 496 and 497 Cr.P.C. But is also supplementary thereto in many respects, in so far as that provision confers not only concurrent but even revisional powers on this Court in respect of grant or refusal of bail by the subordinate Courts and the police authorities.
Besides, since the jurisdiction of this Court and the Court of Session is concurrent under section 498 Cr.P.C. Whenever factual enquiries are necessary for decision of an application for bail, it is always preferable that the matter be heard by the Sessions Court first, to whom relevant information can be more readily available and unless such salutary rule of procedure is followed the concurrent jurisdiction at the level of Sessions would not only stand bypassed but may even be rendered redundant. It is for this reason that when a fresh question is raised in the context of a prayer for bail, which was not duly agitated, even though available to an applicant, it is normally found desirable to permit the agitation of that question in the Court of Session rather than here. In support of the observations herein recorded, reference, amongst others, may be made to Mohammad Ayub v.
Mohammad Yaqoob PLD 1966 SC 1003 and Fateh Mohammad v. State PLD 1973 Lah.
874. Not only this, in cases where a new question is raised in the context of bail before the Supreme Court, even that Honourable Court prefers to remit such a question to the relevant High Court as would be readily reflected in an order of the High Court of Baluchistan in Nasir Mehmood Khan v.
The State 1985 P Cr. L J 159.
6. It was in keeping with the foregoing considerations that the order dated 30-3-1989 was passed.
7. The learned Vth Additional Sessions Judge, Sukkur has placed reliance on the dicta of the Hon'ble Supreme Court in Saleh Mohammad v. State 1983 SCMR 341 to the effect that unless the repeat request was made on grounds other than those available at the time of the first application for bail, the matter should not be opened up for reconsideration. This, as a proposition, is beyond question and is based on a long line of authorities of the Supreme Court and this Court. However, there are equally well recognised exceptions to the rule. Firstly, the rule is applicable to that Court alone where successive applications are moved and not to higher forums in the hierarchy.
Secondly, a fresh application would lie on a ground not brought to the notice of the Court.
Reference on the point may be made to Vikio v. The State (1980 P.Cr.L.J 602) and Aijaz Ali v. The State PLD 1981 Kar. 484). Thirdly, where a new ground is urged at the level of a higher Court that Court has a discretion either to decline to entertain it or to consider it itself or to permit the applicant to raise it at the lower level. Lastly, no rule of universal application can be deduced from decisions in criminal cases and an inferior Court in the hierarchy is bound to make compliance of orders of a higher Court, effective in a particular case. The State v. Mushtaq Ahmed PLD 1973 SC 418, Wali Muhammad v. The State PLD 1976 SC 287 and Nazar Muhammad v. The State and another PLD 1978 SC 236 may be referred on the question. Regretably, the case in hand fell within all these exceptions.
8. The learned Additional Sessions Judge could have been actuated, in refusing bail to the applicant, without due consideration of the plea of alibi, largely, because of the supposed fact that the applicant is a hardened criminal and involved in dacoities, motivated by the temptations of ransom money. The discretion of a Court to grant bail is controlled and regulated only by law. It is the overall considerations of a case which qualify an accused person for grant of bail. E All factors are to be weighed and assessed. Even an iron-clad plea of alibi may disappear altogether on closer examination. It is not unheard of that people, even in police custody, by recourses to collusion and use of unhealthy practices, may yet have their way. Further, a plea of alibi has its own limitations in the context of bail, which, obviously, is not the same thing as a determination on regular trial. Of all such matters the Court seized of the case is to be the judge.
9. Accordingly, the learned Additional Sessions Judge, Sukkur, fell into a grave error of law when he did not consider the plea of the applicant, as to alibi, even though that was a direction from this Court. In these circumstances, I had the option to decide the matters myself. However, Mr. K.M.
Nadeem, the learned A.A.-G. Points out and, perhaps, rightly that since the learned Court below has acted in manifest error, it would be proper that such matter is dealt by it alone. These applications are disposed of, therefore, in such manner that while the same are dismissed, the applicant would be free to move the learned Court of Session again on the basis of the observations hereinabove made. That Court however, would be free to model its discretion in any manner permissible by law.
Bail .