1. The respondents are implicated as accused in Crime No.101 of 1995 of Police Station K.N. Shah District Dadu recorded on 21-9-1995 at 7-30 hours. The incident has taken place at 6-30 in the morning. Specific role has been assigned to the respondents that they fired at Shah Nawaz alongwith two other accused persons Qurban and. Khan Muhammad who were let off by police subsequently and the revision application for joining those two accused persons was also dismissed. As regards the present four respondents, specific role has been assigned to them. My learned and noble brother Mr. Justice Rasheed A. Razvi while admitted the revision application passed the following order on 17-10-1996:-- "This is an application for cancellation of bail filed under section 497(5), Cr.P.C. By the complainant of F.I.R. Bearing No.101 of 1995 Police Station K.N. Shah lodged under sections 302, 147, 148, P.P.C. The respondents Nos.1 to 4 are all accused involved in the abovesaid crime and they are facing trial in a Sessions Case No.474 of 1995 before the Court of learned IVth Additional Sessions Judge, Dadu.
2. During the relevant time i.e. During the month of February, 1996 fill July, 1996 Mr. Abdul Aziz Memon was the Presiding Officer of the Court of learned IVth Additional Sessions Judge. For a brief period he was on leave, when the bail plea of the respondents came up for hearing before the incharge of that Court namely Mr. Ghulam Mehdi M. Sangi, who granted bail to all the respondents.
3. Subsequently the application for cancellation of bail under section 497(5), Cr.P.C. Was filed by the complainant/petitioner which came up before the original Judge namely Mr. Abdul Aziz Memon, who vide its order recalled the to the respondents and made the following observations:- 'The ocular evidence is holding together with the medical evidence and at this stage the impugned order, dated 19-2-1996, passed by learned incharge IVth Additional Sessions Judge, Dadu does not seem to be in accordance with law and as such at this stage looking to the material available on the record, I do not feel it better to maintain it and as such the impugned order is recalled and to the accused stand cancelled. The accused are committed to custody. Again the respondent filed their second bail application, taking advantages of the absence of Mr. Abdul Aziz Memon. On 4-7-1996 Mr. Ghulam Mehdi M. Sangi was again incharge of the Court of learned IVth Additional Sessions Judge who admitted the respondents on bail on the following grounds:-- "I have carefully considered the arguments advanced by party Advocate and I have also gone through the authority relied upon. It is admitted fact that applicants were already granted bail by this Court with an exhaustive order with citation of superior Courts, and it was determined that case of applicant requires further enquiry, moreover, for cancellation of bail, once bail is granted and if same is cancelled by the same Court there should be strong and exceptional grounds for the same. Moreover, the Court having equivalent powers cannot criticise its own order and such power lies with Honourable High Court. For cancellation of bail no strong ground is mentioned, only there is word of complainant who is inimical and interested witness and same is rebutted by other side. Under such circumstances and no objection raised by D.D.A. Applicants namely Ali Muhammad, Sikander, Anwar and Gul Sher are admitted to bail on furnishing solvent surety in the sum of Rs.1,00,000 (one lac) by each accused and P:R. Bond in the like amount."
4. Contentions raised by Mr. Isserdas requires consideration. Admit, issue notice to the respondents as well as to the Additional Advocate-General Sindh for 31-10-1996.
5. It is a matter of priority as well as of judicial discipline that the Incharge Judge should avoid passing final orders in a case when the concerned Judge is on leave. Equally, the other learned Judge should have avoided reviewing/recalling orders of another Judge when both the Judges enjoy equal jurisdiction. Both the learned Judges have acted in a manner as they are appellate authority of each other. Such act is highly improper and unjust. A copy of this order be also forwarded to the registrar at Principal Seat, Karachi as well as to the Member Inspection Team to initiate necessary action as provided under the rules, against the two learned Judicial Officers."
6. The learned Judge Mr. Abdul Aziz Memon rejected the bail application, when Mr. Abdul Aziz Memon was on leave, bail application was again filed before Mr. Ghulam Mehdi M. Sangi who granted bail.
7. When the bail application of respondents was rejected by Mr. Abdul Aziz Memon, subsequent application without any further progress of the case by the respondents was obviously not maintainable. The subsequent order passed by Mr. Ghulam Mehdi, M. Sangi on 4-7-1996 admitting the above respondents on bail was an absolutely high handedness and uncalled for. If at all Mr. Abdul Aziz Memon who had rejected the bail application earlier was on error, the respondents should have filed bail application before this Court. The conduct of Mr. Sangi under the circumstances is dubious. I also agree with my learned brother that as a matter of judicial propriety and discipline, the incharge Judge should avoid passing final orders in a case when the concerned Judge is on leave (long leave may be or exception).
8. In this case I find that Mr. Abdul Aziz Memon learned IVth Additional Sessions Judge incharge of the case has probed into the police record while disposing of application filed under section 173, Cr.P.C.
9. He has inter alia found as follows:-- "Perusal of the statements of accused Ali Muhammad, Gul Sher, Anwar and Sikandar recorded on 15-10-1995, shows that they have admitted their guilt of causing the death of Shah Nawaz."
10. The said statement of accused persons was available on police record. Such statement was never taken into consideration by the learned Judge while granting the bail. Specific role has been assigned to the accused persons which is also corroborated by the medical evidence, such, evidence was also ignored by the learned Judge granting' the bail. Prima facie, respondents are involved in an offence which does not fall within the exceptions under section 497, Cr.P.C.
11. After hearing the parties for these reasons, I cancelled the to the respondents and remanded them to custody. Accused persons may file bail application again after the evidence has been recorded in case if they so desire. A copy of this order be also forwarded to the Member Inspection Team for action in accordance with law as proposed by my learned brother Mr. Justice Rasheed A. Razvi.
12. Bail cancelled.