' Zar Jan, petitioner and Noora Jan his brother were required in a case under section 302/34, P.P.C., registered on 11-4-1991 at 11-00 a.m. In Police Station, Terri, District Karak. Zar Jan surrendered himself before the Court of Session for pre-arrest bail but having failed to secure it he approached this Court. It was declined by me on 29-6-1991 in Cr. Misc./BA. No,301 of 1991. The petitioner, therefore, surrendered before the police. In the second round also he was not granted bail by the Court of Session and in consequence he moved Cr.Misc./BA. No,701 of 1991 in this Court.
2. By my order dated 26-10-1991 I admitted the petitioner to bail pending trial in the sum of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Karak.
3. The allegations against the petitioner are that he had in common concert with his brother Noora Jan committed the murder of Sultan by firing in the drug store of Yousuf Noor situate in Shinki Bus Stand, Terri. The motive as set up in the F.I.R. Is the previous blood-feud between the parties.
4. The learned Sessions Judge, Karak by his order dated 17-6-1992 cancelled the bail allowed by me to the petitioner. Since the order is brief, it would be proper to reproduce it. It reads as under:-- "Learned counsel for the respondent tells me that he is not aware of the reasons for the absence of his client. However, counsel for the petitioner placed before me certified copy of an order passed by learned District and Sessions Judge, Kohat vide which the pre-arrest interim bail of the respondent in case F.I.R, No,2 dated 9-1-1992 registered at P.S. Lachi under section 324/34, P.P.C. Has been recalled. This case was registered against the respondent, after he was allowed bail in the case in hand by his Lordship Mr. Justice Bashir Jehangiri of Peshawar High Court. Thus, the registration of the subsequent case coupled with the fact that he failed to secure pre-arrest bail in the case at Lachi will per se mean that the respondent misused the concession of bail allowed to him in the present case. I, therefore, cancel the bail allowed to him in this case."
' The petitioner, feeling aggrieved, has come up to this Court again for bail.
5. In support of this petition, Mr. Tariq Pervaiz, Advocate, made the following submissions:--
(a) That the order of the learned Sessions Judge cancelling the by this Court is without lawful authority; and
(b) that the order impugned herein was passed in violation of the principle of natural justice enshrined in the maxim: audi alteram partem i,e, no body should be condemned unheard, for, the petitioner was not afforded any opportunity to show cause as to why the by this Court should not be cancelled on the ground of alleged misuse of this concession.
' In support of the above contentions the learned counsel for the petitioner placed reliance on (1)
Mushtaq Ahmad v. The State PLD 1966 SC 126, (2) Bahadar Ali v. The State 1968 PCr.IJ 1138 and (3)
Shakeelur Rehman v. The State PLD 1982 SC (AJ&K) 104.
6. Mr. Shahabuddin Burg, Law Officer appearing on behalf of the State, has supported the plea of bail raised on behalf of the petitioner and maintained that the learned Sessions Judge was legally not competent to have cancelled the by this Court. He further submitted that if the learned Sessions Judge was so disposed as to take notice of the misuse of concession of bail by the petitioner, then he should have referred the matter to this Court complaining of such misuse and this Court could have competently entertained it.
7. Mr. Shaukat Ali, learned counsel, for the complainant, on the other hand, argued that in Cr.Misc./B.
No,577 of 1992 the petitioner had been refused bail by Mian Muhammad Ajmal, J., in case F.I.R. No,2 registered under section 324 read with section 34, P.P.C. At Police Station, Lachi, holding that material available on the record suggested the petitioner's involvement in the case and that, therefore, in the presence of the finding of this Court, notice to show cause, for cancellation of bail in the earlier case was not required. Reference was made by the learned counsel to the recent cases of Mir Afzal v. Muhammad Haneef and others PLD 1992 Peshawar 123 and Rana Masood Ahmed v. The State PLD 1992 Karachi 213. He further submitted on the authority of Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 that when a murder case is fixed for hearing, ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge and that since in this case the trial has commenced, the bail application of the petitioner may not be decided on merits.
8. The proposition surviving for determination is whether the Court of Session was competent to cancel the to the accused by the High Court on the ground that the accused-petitioner had misused the concession evidently on account of registration of another case against him and others under section 324 read with section 34, P.P.C. At another Police Station. If this proposition be in the affirmative, the next question arises as to whether the petitioner was not entitled to any show-cause notice before the cancellation of to him by this Court merely because another Honourable Judge of this Court had refused the concession of bail to the petitioner on the finding that there were reasonable grounds for believing that the petitioner and his co-accused therein had committed another offence under section 324/34, P.P.C. The ratio in the first case of Bahadar Ali relied upon by the learned counsel for the petitioner was that the plain reading of the language implied in subsection (5) of section 497, Cr.P.C. Would show that in case the bail is granted by the High Court, the said Court alone can vary or rescind any order passed under section 498, Cr.P.C.
And the Magistrate or the Sessions Judge is not empowered to cancel the bail and to consign the accused to jail. Again in the precedent of Shakeelur Rehman cited above the petitioner therein after securing bail on medical ground from the High Court was found guilty for noncompliance of the direction to appear before the D.H.O. For his medical examination and was taken into custody.
Feeling aggrieved, he filed a revision petition which was heard by the Supreme Court of AJ&K where the contention that the District Criminal Court was not empowered to cancel the bail in view of the fact that it was granted to the petitioner not by itself but by the High Court, found favour and it was held that even if the cancellation of bail was necessitated by any compelling circumstances the proper course then was to move the Supreme Court of AJ&K which was the successor of the High Court in the matter and then it was for that Court to consider the question of recall of to the petitioner by the High Court. It was further held by the Full Bench of the Supreme Court of AJ&K that the cancellation of bail amounts to curtailing the liberty of a person given the concession of bail and thus before he is deprived of his liberty, he is entitled to show-cause notice well in advance so as to enable him to place before the Court his side of the case with a view to meeting the allegations made the ground for cancellation of his bail.
9. It would thus be seen that if the bail is granted by the High Court, this Court alone can vary or rescind the order passed under section 497, Cr.P.C. And the Magistrate or the Sessions Judge is not empowered to cancel the to the accused and to take him into custody. Anyhow, if the cancellation of bail is necessitated for any reason apparent to the subordinate Court which is seized of the case, then it should move the High Court for the cancellation of bail. In Mushtaq Ahmad's case, cited above, while conceding that Inspecting Judge of the High Court has the power to examine the record of the case suo motu and order the cancellation of bail but in this event the learned Judge should follow the procedure laid down by section 439(2), Cr.P.C. Which clearly provides that "no order shall be made to the prejudice of the accused unless he has the opportunity of being heard".
This dictum of the Supreme Court is of no help to the complainant because the powers of the Court of Session cannot possibly be equated with those of the High Court particularly when the former is subordinate to the latter. In both the cases of Mir Afzal of this Court and Rana Masood Ahmed from Karachi referred to me by the learned counsel for the complainant the accused were held to have misused the concession of bail. Nonetheless, in the latter case it was observed that if the trial Court doubted the correctness of the medical certificate furnished by the petitioner therein to justify his absence from appearance in the trial Court the proper course was to have directed the medical examination of accused by a competent Medical Officer and consequently cancellation of bail was held arbitrary and without lawful authority on the ground that the order was made without any show-cause notice. I am, therefore, clear in my mind that in the instant case the impugned order of the learned Sessions Judge was not sustainable on the additional ground that the petitioner was not served with any show-cause notice as to why to him by the High Court should not be cancelled because he had misused the concession of bail by way of committing another offence of attempted murder in furtherance of his common intention with his co-accused.
10. The last contention of the learned counsel that as the case has been fixed for hearing, therefore, the bail application should not be decided on merits is equally untenable. The ratio in the case of Muhammad Ismail, referred to above, is that when a murder case is fixed for hearing, "ordinarily" bail applications are not decided on merits. In the instant case, had the petitioner been refused bail either by the Sessions Judge or by this Court and a fresh ground had been made available to the petitioner then "ordinarily" such plea could not be decided on merits on the ground that the case has been fixed for hearing. In the present case, the accused was already on bail by the order of this Court and was facing trial when his concession of bail was recalled by the Court of Session on the ground of misuse of the concession. This authority is, therefore, of no help to the complainant.
11. For what has been stated above, this petition is allowed and pending trial of case F.I.R. No,51, dated 11-4-1991 of Police Station, Terri, the petitioner is admitted to bail in the sum of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Karak, provided he is not required in any other case. .