' The present application is one under section 497(5), Cr. P. C. Whereby complainant Ghulam Muhammad has challenged an order of the Sessions Judge, Nawabshah, dated 11-10-1972 whereby the Sessions Judge granted bail to the 11 respondents, Khan Muhammad, Jan Muhammad, Haji Warial, Naban, Pathan, Kassim, Dino, Matto, Photo, Nangul and Haji Ayoob, in a case under section 307/147/148, P. P. C. And 13-D of the Arms Act. The respondents had sought anticipatory bail which was granted by the Sessions Judge and I am informed by the Advocate for the applicant that by now a charge-sheet has been submitted by the police in the Court of First Class Magistrate at Kandiaro.
2. The facts of the case briefly are that a report was lodged by applicant/complainant Ghulam Muhammad against the 11 respondents alleging that at about 5 p.m. On the date of occurrence the present respondents attacked the complainant and other members of his family including such persons who had come on hearing the gunshots for the purposes of rescuing the complainant party. It is stated in the report that the complainant had remonstrated with the accused/respondents at respondent Qasim and Matto bringing one Umar to the . Place where the complainant party was living. It seems that such remonstration of the complainant was disliked by the accused persons, and when at the time of incident complainant Ghulam Muhammad saw Umar near his house he told the accused/ respondents that they should not have brought Umar because his presence near the houses of the complainant party brought ignominy to the complainant party. On such protest being made by complainant Ghulam Muhammad, the respondents Khan Muhammad, Nangul and Umar came with guns ; Kassim and Photo with pistols ; and Matto with a rifle. The remaining respondents, namely, Jan Muhammad, Haji Warial, Naban, Pathan, Dino and Haji Ayoob also came up but they were armed with lathis. The accused party started firing at the complainant and the others including his family members and other residents of the village and such firing resulted in gunshot injuries to Mour, Ghulam Muhammad, Ghulam Shabir, Ida], and two others. The injuries to such six persons were examined by the Medical ()dicer who had issued a certificate that the injuries have been caused by fire-arms and while three out of the six injured had received simple injuries, the injuries on Ghulam Muhammad, Shabir and Mour were grievous in nature. Investigations were carried out, but before any of the accused/respondents could be arrested, they applied for bail before arrest which was granted and the same order is sought to be challenged by this application. It appears that on the side of the respondents Khan Muhammad, Haji Warial, Haji Muhammad Ayoub and Muhammad Kassim also received injuries. Such injuries are stated to be simple in nature.
3. The Sessions Judge while hearing the bail application had called for the police papers and based his order mainly on the consideration that "both parties had indulged into a free fight in which there was firing from both and persons were injured on either side." He went on to observe that the party of the complainant had also been released on bail and for such reason he released the respondents on bail.
4. There can be no doubt that six persons on the side of the complainant received gunshot injuries and such injuries are being attributed to the respondents. The injuries have been duly certified by the Medical Officer and since six out of the respondents (who have been named above) were armed with deadly weapons such as guns, pistol and rifles there can be no manner of doubt that if the ocular evidence was believed the offence would fall under section 307, P. P. C. Which was punishable with transportation for life. On a perusal of the police papers it is clear that pellet marks were found even on the walls of the house of complainant Ghulam Muhammad and this is a fair indication as to the aggression of the accused/ respondents party. However, even if, as stated by the Sessions Judge, the incident was in the nature of free fight, the law is very clear that every person will be responsible for his own acts and in cases of free fight the question of aggression is material. On such position in law it would appear that those persons who were armed with fire- arms and used the same would on the premises of the reasoning of the Sessions Judge be guilty of causing the injuries that had been caused by them. This then would appear to be the point determining the issue in regard to matter of bail. It was premature for the Sessions Judge to have come to the conclusion that the incident was a result of a free fight but even if such an inference was considered to be inescapable by the Sessions Judge he should not have overlooked that in such cases every party or rather every person was responsible for the acts that he did. On looking at the police papers I find that it is not a case of lack of evidence.
The Sessions Judge has also expressed that since the complainant party' it has been granted bail the accused/respondents were also entitled to ball To my mind this argument is fallacious because the mere fact of one out of the two parties being on bail, could never be an adequate ground for releasing the other party on bail. It has to be seen whether there were reasonable grounds to believe that the accused/respondents were guilty of an offence punishable with transportation or death, regardless of the consideration that the opposite-party had been granted bail. I have seen the police papers but I have no intention of expressing any finding as to the correctness or otherwise of the expression of the Sessions Judge that this was a free tight and I feel that I am not called upon to examine at this stage whether the incident was in the nature of a free fight. Suffice it to say that there are reasonable grounds to believe that such persons who were armed with fire-arms would be guilty of an offence punishable with transportation for life. That being so, the Sessions Judge acted wrongly in arriving at tentative findings in regard to liability of the respondent/accused. It has been stated by this Court and also by the Supreme Court and I shoula say times out of number that it is wrong on the part of the Courts to evaluate the evidence in a case and record conclusions at an interlocutory stage and such C observations apply with greater force in a case of this nature where the accused have not been arrested and the case too has not proceeded. 1 would in these circumstance:, hold that the six persons having fire-arms, who have been named above, have been wrongly granted bail.
5. Mr. Imdadally Agha, the learned Advocate for the respondents had however, raised a legal point that bail having been granted by the Sessions Court under section 498, Cr. P. C. This Court cannot cancel the same in exercise of powers under section 497(5), Cr. P. C. In that context he has relied on the cases of Ahmed v. Crown (I) and Crown v. Abdul Hag (2). The learned Advocate has argued that section 497(5), Cr. P. C. Makes a reference to cases where bail has been granted under that section viz. Section 497, Cr. P. C. And since the Sessions Court had granted bail under section 498, Cr. P. C. This Court could not cancel the same. On such contention Mr. A. A. Muhammadally, the learned Advocate for the applicant, out of abundant caution made a prayer that should I agree with Mr. Imdadally Agha, the application for cancellation of bail may be treated as one for revision of the order of the :sessions Judge or even as one invoking the inherent powers of this Court under section 561-A, Cr. P. C. In the Lahore case it has been clearly stated, although I should not be misunderstood to mean that the decision in the Lahore case was entirely correct, that bail granted under section 498, Cr. P. C. By the Sessions Court could be cancelled by the High Court in exercise of revisonal powers. However, in the case of Karim Bux Jatoi v. Crown (3 the question came directly under consideration and the learned Judges of the Division Bench on a consideration of a wealth of case-law on the subject including the case of Jaramdas (4) and the case of Seoti and others v.
Rex (5) came to the conclusion that powers under section 498, Cr. P. C. Being, in the nature of ancillary or subsidiary to the powers, under section 497, Cr. P. C., bail granted by the Sessions Court under section 498, Cr. P. C. Could be cancelled by the High Court by aid of section 497(5), Cr. P. C.
However, such a controversy which existed has been set at rest by two cases of the Federal Court and the Supreme Court of Pakistan. The Federal Court of Pakistan in the case of Gushtasab Khan v.
The Crown (6) clearly expressed that a High Court and {{FOOT NOTE}}
(1) PLD 1950 Lah. 280 (2) PLD 1951 Bal. 48
(3) PLD 1952 Sind 43 (4) A 1 R 1945 P C 94
(5) A 1 R 1948 AIL 366 (6) P L 1956 FC 117 {{FOOT NOTE}} ' Court of Sessions have no less powers to cancel bail granted by them in a case pending before a lviagistate than the Magistrate himself possesses, for the simple reason that all the three Courts derive their powers from the same statutory provisions namely, section 497(5), Cr. P. C. The position was amplified in the case of Mushtaq Ahmad v. The State (1) and the Supreme Court expressed that a High Court may even suo mutu cancel bail in exercise of its revisional jurisdiction but only after giving notice to the person concerned. The facts in the latter case were that on an inspection of a Court a Judge of the High Court came to the conclusion that the bail had been wrongly granted and their Lordships of the Supreme Court came to the conclusion that the High Court could direct cancellation of bail but only a notice was necessary. I specifically asked Mr. Agha as to whether on my acting even on the revisional side has a notice not been given to his client to which he stated that since the application was being treated or was at least purported to be treated as a revision application a fresh notice was necessary. I have not been able to understand this argument because in essence a notice is necessary only to enable the party who is likely to be prejudiced by an adverse order to appear aid present their case. In the present case the respondents have notice of cancellation and they are indeed represented before me. I am of the view that section 497(5), Cr. P. C. Does enable the High Court to cancel bail granted by the Sessions Judg under section 498, Cr. P. C. But even if the present application is treated to be one in revision or one under section 561-A, Cr. P. C. The accused/ respondents have sufficient notice and they are represented before me.
6. The next contention is that the bail was granted more than a year back and it should not be cancelled. f he admitted position is that the case has not proceeded because the police papers were called in this Court and the same are still here. What may have been the causes for the delay is not for me to determine but suffice to say that the order sheet discloses several adjournments having been sought by one or the other party. In essence the question is whether the respondents are entitled to bail, and mere delay will not confer any better right on them to liberty. I find that the point is insubstantial and I have no hesitation in rejecting such contention.
7. Mr. Usman Ghani Rashid, the Assistant Advocate-General has also supported this application and has stated that the learned Sessions Judge acted wrongly in granting bail in this case. I agree with him. In the result I cancel the bail granted to respondents Khan Muhammad, Kassim, Matto, Photo, Nangul and Umar who were armed with fire-arms. The remaining respondents namely, Jan Muhammad, Haji Warial, Naban, Pathan, Dino and Haji Ayoob who are stated to be armed with lathis shall continue to remain on bail because no lathi injuries have been caused in this case.
8. Bail of six of the respondents is cancelled and such respondents shall be arrested forthwith and remanded to custody. I would however, make it clear that whatever I have expressed is of a tentative nature and shall not be taken into consideration by the Courts below in the matter of decision of the case and I would further state that the order of cancellation of bail of six out of the respondents by this Court will not prevent either the Magistrate or the Sessions Court in granting bail if the circumstances of the case, after the evidence is recorded, so warrant. {{FOOT NOTE}}
(I) PLD 1966 SC 126 {{FOOT NOTE}}