1. ' On 3-4-1994 while dismissing the application of accused Bashir Ahmed for pre-arrest bail, I had ordered issuing of notice under section 497(5), Cr.P.C. To other co-accused in the case to whom bail was earlier granted by my learned brother Syed Khurshid Hyder Rizvi, J. The facts of the case briefly stated are that, first information report was lodged by Ms.Rubina Amjad at Police Station Ferozabad that after she had returned home after bringing her children from their school at about 1 P.M. She found five persons in her house. One of such persons pointed out his revolver towards the complainant whereas his other companions snatched her purse and keys. The remaining three co- accused by pointing out their revolved towards the complainant robbed her of cash, jewellery, and prize bonds, etc. The accused are further stated to have subjected her to electric shocks.
2. Thereafter, a report was lodged against the five unknown accused and a case under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sections 109 and 412, P.P.C. Was registered against them. During the course of investigation the police arrested all the accused on 2-11-1993. The accused moved their respective bail applications before the learned trial Court but bail was declined as it was found that a prima facia case existed against them.
3. Thereafter, first accused Tariq Bashir and Shahzad Bashir moved their bail applications before this Court which was followed by another bail application jointly moved by accused Kamran Zafar, Suhail Zafar, Zafar Iqbal and Muhammad Moiz. All such bail applications were heard and disposed of by Mr. Justice Khursheed Hyder Rizvi (as he then was) who granted them bail by two orders dated 22-12-1993 and 9-3-1994 respectively as he was of the view that the case of the accused required further inquiry. Subsequently, co-accused Bashir Ahmed applied for pre-arrest bail first before my learned brother, Salahuddin Mirza, J., who was then at Sukkur and after succeeding in obtaining protective bail from him, the accused moved his bail application before MrJustice Khursheed Hyder Rizvi, who granted him interim bail. However, as his luck would have it, Mr. Justice Khurshid Hyder Rizvi ceased to be a Judge of this Court and therefore, the bail application was placed before me for further orders. However, as would appear from the order passed by me dated 3-4-1994, not only the bail application filed by accused Bashir Ahmed was rejected but notice under section 497(5) Cr.P.C. Was ordered to be issued to the other co-accused who had earlier been enlarged on bail by Mr. Justice Khursheed Hyder Rizvi. Mr. IA. Hashmi and Mr.Khawaja Naveed Ahmed, learned counsel for the accused have firstly argued that cancellation of bail earlier granted to the accused by another Judge would tantamount to review of the order earlier passed by such learned Judge which is not permissible under the law. Reliance has been placed by the learned counsel upon the case of Muhammad Ismail v. Hidayatullah and two others 1980 PCr.LJ 87, wherein a learned Single Judge of this Court declined to grant an application under section 497(5), Cr.P.C. Holding that discretion had earlier been exercised by a learned Judge of the High Court who was competent to grant bail to the accused, therefore, another learned Judge could not sit in judgment over the former's order. Reliance was also placed by the learned counsel for the accused on the case of Piaro v. The State and another 1984 PCr.LJ 149, 'therein another learned Single Judge of this Court declined to interfere under section 497(5), Cr.P.C. With an order passed by another learned Judge of the same Court particularly when such order was based on sound reasoning. It may be pointed out that in Muhammad Ismail v. Hidayatullah 1981 SCM R 35, the impression that cancellation of bail earlier granted by the same Court would tantamount to review of such order was dispelled by the Supreme Court as it was held that the High Court is empowered to examine question of cancellation of bail from various angles under section 497(5), Cr.P.C. And exercise of such power does not amount to review of the earlier order. It was further held that section 369, Cr.P.C. Does not apply to cancellation of bail because the same saves matter otherwise provided for by the Criminal Procedure Code or any other law in force. Reference in this regard was also made to the case of Gulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335, wherein provisions of sections 497 and 498 examined in juxtaposition with those of section 561-A, Cr.P.C.
4. And it was held that in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which are not governed by sections 369, 424 and 430, Cr.P.C. With a view to give effect to any order under the Criminal Procedure Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Reference may also be made to the judgment of the Supreme Court in the case of Amiruddin v. The State and another PLD 1977 SC 602, wherein it was held that where in case bail was improperly granted, the same Judge was not debarred from cancelling the earlier order even on the same material before him. All that the Court was required to consider under such circumstances was that the order earlier passed should not be lightly interfered with having due regard to the principle of finality usually attaching to orders passed by the High Court in criminal cases. It may be pointed out that in case the contention raised on behalf of the accused is accepted, the same would tantamount to imposing restrictions on the discretion of the Court vesting under subsection (5) of section 497, Cr.P.C. No doubt, such discretion must be a judicial discretion depending upon the circumstances of each case and the Court is not supposed to Pact arbitrarily in this regard and it must act only in rare or exceptional cases, but it would be erroneous to assume that by one Judge cannot be cancelled by another Judge of the High Court. It is also pertinent to point out that the case of accused Bashir Ahmed was placed before me for grant of pre-arrest bail when notice was ordered to be issued to accused suo motu under section 497(5), Cr.P.C. Because Mr.Justice Rizvi had ceased to be a Judge of this Court, otherwise the matter would have been placed before the same Judge. But the mere fact that the same learned Judge who had earlier granted bail to the accused was no longer available cannot render the provisions of subsection (5) nugatory. For the aforesaid reasons, I am unable to accept the first contention of the learned counsel for the accused in this case.
5. ' The second contention of the learned counsel was that no such circumstances had occurred which would justify cancellation of bail in the present case as neither there were allegations that the accused were tampering with the prosecution evidence nor there was any other reason which could justify cancellation of bail in the present case. Reference in this regard was also made by the learned counsel to the case of Public Prosecutor v. George Williams alias Victor 1952 Cr.LJ 213. In this case, cases have been enumerated where a person granted bail may have his bail cancelled. It was held as under: "(4). I am of opinion that there are five cases where a person granted bail may have the bail cancelled and be recommitted to jail:--
(1) Where the person on bail, during the period of bail, commits the very same offence for which he is being tried or has been convicted, and thereby proves his utter unfitness, to be on bail, as in the present case, if the facts alleged by the learned Public Prosecutor (and they are not controverted by Mr. Basi Reddi, for accused are true.
(2) If he hampers the investigation as will be the case if he, when on bail, forcibly prevents the search of places under his control for the corpus delicti or other incriminating things.
(3) If he tampers with the evidence, as by intimidating the prosecution witnesses, interfering with the scene of offence in order to remove traces or proofs of the crime, etc.
(4) If he runs away to a foreign country, or goes underground, or beyond the control of his sureties; and
(5) If he commits ac s of violence, in revenge against the police and the prosecution witnesses and those who have booked him or are trying to book him."
6. ' No doubt, bail may be cancelled on any of the grounds enumerated in the judgment of the Madras High Court but nothing can be spelt out from the said observations to suggest that the grounds enumerated above are exhaustive. According to subsection (2) of section 497, Cr.P.C.
7. Where there are reasonable grounds for believing that the accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt the accused shall, pending such inquiry, be released on bail. While interpreting the above provisions in the case of Arbab Ali v.
8. Khamiso and others 1985 SCM R 195, it was held by the Supreme Court that bail can be allowed in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 497, Cr.P.C. When there are sufficient grounds for further inquiry into the guilt of the accused but only on the condition when the Police Officer or the Court at any stage of investigation, inquiry or trial, as the case may be comes to a defmite conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Without such finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry. In Asmat Ullah Khan v. Bazi Khan and another PLD 1988 SC 621, it was observed by the Supreme Court that mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one under section 497(2), Cr.P.C. Such a question also came up for examination before a Division Bench of this Court in the case of The State v. Aziz alias Abdul Aziz PLD 1985 Kar.
27. It was held in this case that the question of further inquiry would only arise if the Court first comes to the conclusion that reasonable grounds do not exist for believing that a person has committed a non-bailable offence. On the other hand, if the Court comes to the conclusion that there are reasonable grounds to believe that the accused has committed the offence, there is no question to Court holding a further inquiry into the matter for the purpose of grant or refusal of bail.
9. ' So far as the merits of the case are concerned, bail was granted by MrJustice Khursheed Hyder Rizvi to the accused firstly because their names did not transpire in the F.I.R. There was also nothing to indicate from the police record that one computer recovered from the possession of the accused had actually been purchased with the cash stolen by them from the complainant's house.
10. Further, a writ petition had been filed by the complainant in this Court in which one Captain Nadeem and Jan Muhammad alias Janni Bhatti had been shown as the culprits who had committed the alleged robbery in her house. Consequently, the learned Judge came to the conclusion that there were reasonable grounds to believe that the case against the accused required further inquiry. It is pertinent to point out in this regard that during the course of investigation the police recovered different items of jewellery allegedly stolen from the complainant's house from the possession of the accused. All such items were identified by the complainant and her husband in the identification test where the said articles are said to have been mixed with other similar articles of jewellery. Accused Kamran Zafar, Sohail Zafar, Zafar Iqbal and Muhammad Moiz are also said to have been identified by the complainant as some of the culprits. But no reliance was placed on such identification because accused Tariq Bashir and Shahzad Bashir were known to the complainant and since the complainant had already identified the said accused persons as some of the culprits, the number of accused in that case exceeded five which was the number of accused originally mentioned in the F.I.R. The learned counsel for the accused further pointed out that the accused was identified by the complainant on 3-11-1993, which was after a lapse of about seven months. Consequently, very little evidentiary value could be attached to such identification. It may be pointed out in this regard that the mere fact that the accused were arrested after about seven months of the date of the incident and were thereafter put to identification test by the prosecution cannot render the evidence collected by the prosecution in this regard completely unreliable. However, the question as to the evidentiary value to be attached to such identification would be difficult to determine at this stage unless evidence is recorded by the Court. Even otherwise, it would be proper to leave such question to be assessed by the trial Court at the conclusion of the trial. As was held in the case of Professor Muhammad Haneef v. The State 1979 SCM R 459, the stage of bail is not a stage` to sift evidence in minute details. In fact, the circumstances prima facie indicate that the alleged recovery of the stolen articles of jewellery from the possession of the accused and the identification of the said accused by the complainant are factors which corroborate each other to make out a prima facie case against the accused.
11. Even otherwise the alleged recovery of the articles of jewellery from possession of each of the accused is by itself sufficient to make out a prima facie case against all the accused as different items of jewellery were allegedly recovered from each one of them. The orders passed by MrJustice Khursheed Hyder Rizvi clearly indicate that this material aspect of the case was not considered by him while arriving at the finding that the case against the accused required further inquiry. As was held in The State v. Aziz alias Abdul Aziz, earlier referred to in this order, the use of the words "grounds" and "believe" in subsection (2) of section 497, Cr.P.C. Indicate that grounds for believing could not mean proof for establishing the guilt of the accused persons. Consequently, if there are grounds to believe that from the material in the hands of the prosecution prima facie case against the accused is made out, bail cannot be granted under subsection (2) of section 497, Cr.P.C. Merely because the Court finds that the evidence when led in the case would not be sufficient for conviction of the accused. I am, therefore, of the considered opinion that sufficient grounds exist for recalling the order earlier passed by Mr. Justice Khursheed Hyder Rizvi, granting ,bail to the accused. As was held in G Amiruddin's case PLD 1977 SC 602, bail if improperly granted, can be cancelled by the same Court even on the same material.
12. In the result, the bail earlier granted to accused Kamran Zafar, Sohail Zafar, Zafar Iqbal, Tariq Bashir, Shahzad Bashir and Muhammad Moiz is cancelled. The accused may be arrested and committed to custody.