' Having been accused of the commission of offences punishable under section 324/337-F(ii)/34 of the P.P.C. Through F.I.R. No, 275/95 dated 25-4-1995 of Police Station, Satellite Town, Gujranwala, Abu Bakar respondent had been allowed bail by a learned Judicial Magistrate exercising powers under Section 30 of the Cr.P.C. At Gujranwala through his order dated 18-2-1996. Muhammad Shoaib who was the injured victim of the occurrence in question, has filed this petition seeking re- call of the said bail allowed to Abu Bakar accused and prays for a direction for the arrest of Abu Bakar accused and for the said accused being committed to custody.
2. The abovementioned F.I.R. Had been recorded at the instance of one Ataullah who is the father of Shoaib petitioner herein and who had alleged through the said F.I.R. That on 25-4-1995 his son Shoaib took out their sheep at about 4-10 p.m. From their house which sheep was meant for being slaughtered at Eid-ul-Azha; that when Shoaib reached Siddique Park, Abu Bakar respondent- accused and Shahidi accused started abusing him and on being told by Shoaib not to abuse him, both the accused persons got flared up; that Shahidi accused gave a kick to Shoaib P.W.
Whereafter Abu Bakar accused attacked him with a Churri and that thereafter both the accused persons ran away after leaving Shoaib P.W. Half dead. Ataullah complainant had further added that Shoaib P.W. Who had been got admitted in the local hospital was in a precarious condition and had inter alia requested that the statement of Shoaib P.W. Be immediately recorded.
3. Muhammad Shoaib was medically examined at D.H.Q. Hospital at Gujranwala on the very day of occurrence within about 15 minutes of the occurrence in question. The doctor examining the said Shoaib had found him in a serious condition and according to the said doctor his blood pressure and pulse were not recordable. Shoaib P.W. Was found to have five sharp-edged weapon injuries on his left thigh; his buttocks and in his left renal area. He was admitted in the hospital. The said patient then appears to have been referred to Mayo Hospital, Lahore where he was operated upon and on 17-8-1995, it was opined that there was a complete sensory motor loss of left lower leg as a result of which the injury to the left leg had been declared as Itlaf-i-Salahiyyat-i-Udw. It had however been mentioned by the doctor that the question whether this disability was permanent or temporary would be decided after a period of 5/6 months depending upon whether the injured nerves got cured or not.
4. Through an order dated 13-11-1995 passed by this Court in Criminal Miscellaneous No,4900/B of 1995 which was a bail petition of Abu Bakar accused, Dr.Abdullah Khan, Medical Officer of D.H.Q.
Hospital at Gujranwala had been directed to reexamine Muhammad Shoaib about the then prevailing condition of his abovementioned leg and to submit a report about the same. The abovementioned M.O. Referred Muhammad Shoaib to the Orthopaedic Surgeon of D.H.Q. Hospital, Gujranwala and through a report dated 30-11-1995, the said doctor had found a complete sensory motor loss of functions of left lower leg as according to him, sciatic nerve had been permanently damaged. Itlaf-iSalahiyyat-i-Udw of left lower leg was thus declared permanent.
5. These are then the accusations levelled against Abu Bakar accused; the role attributed to him in the occurrence in question; the details of the injuries received by Muhammad Shoaib P.W. And his medical and physical condition as a result of the said injuries.
6. After his arrest in this case Abu Bakar accused submitted an application to the learned trial Magistrate for his release on bail. After considering all the submissions made in support of bail for the said accused, the learned trial Magistrate dismissed the said application on 26-6-1995 through a detailed order passed by him. Abu Bakar accused then petitioned the learned Court of Session seeking his release on bail which application was also dismissed by a learned Additional Sessions Judge on 13-7-1995. After about two months, the said accused person went back to the learned Magistrate repeating his prayer for bail which prayer was once again refused by the learned Magistrate Section 30 through his order dated 20-9-1995. He again went to the Court of Session and his bail plea was once again dismissed by a learned Additional Sessions Judge at Gujranwala on 9-10-1995. Thereafter Abu Bakar accused approached this Court through Criminal Miscellaneous No,4400/B of 1995. This petition was dismissed on 13-12-1995 with the following order:- "When I was going to dictate the order of dismissal of this petition, learned counsel wants to withdraw the same. Disposed of accordingly.
(Sd.) ' JUDGE."
7. Abu Bakar accused then filed another petition before this Court on 31-1-1996 which petition remained pending for about eight months as no one was appearing to prosecute the same and it was finally on 18-9-1996 that this petition bearing Criminal Miscellaneous No,485/B-96 was dismissed with the following order:-- ' Nemo.
' The case had been called many times. It is 9-50. a.m. None has put in appearance. Dismissed for non-prosecution.
(Sd.) ' JUDGE."
8. Muhammad Shoaib, the injured petitioner complains through this petition that artery the bail application of Abu Bakar respondent had been twice dismissed by the learned Magistrate; had been twice dismissed by a learned Additional Sessions Judge and had been dismissed once by this Court and while Criminal Miscellaneous No,485/B of 1996 was still pending before this Court Abu Bakar accused once again approached the learned trial Magistrate who through his order dated 18-2-1996 released the said accused on bail. This according to the learned counsel was exercised of jurisdiction by the said learned Magistrate which was improper and invalid, inter alia, on the ground that the petition of the said accused having been dismissed by the High Court on 13- 12-1995, no fresh ground had accrued to the petitioner-accused which could justify grant of bail to him on 18-2-1996 i,e, within two months of dismissal of his plea by the High court and also on the ground that filing of a bail petition before a Magistrate, during the pendency of a bail petition before this Court and by concealing the said fact, the accused person had disentitled himself to any relief in equity.
9. The reasons which had weighed with the learned Magistrate in allowing bail to the accused were that the accused had been in custody for about ten months; that the challan had not been submitted in Court which showed the callous attitude of the prosecution towards the said accused; that the accused was a first offender; that the intention of the accused to cause the murder of the victim could be determined only at the trial that Shoaib P.W. Never made himself available to the Medical Board which had been constituted in the light of the direction of the Hon'ble High Court for re-examination of the said injured person and that in the circumstances Abu Bakar accused was entitled to the grant of bail.
10. The learned Additional Sessions Judge who had refused to cancel this bail through his order dated 9-4-1996 also appears to have been impressed the same considerations which had weighed with the learned Magistrate allowing bail. While dealing with the submissions from the complainant side that Abu Bakar respondent's bail petition stood dismissed by the High Court when the learned Magistrate allowed him the said concession, the learned Additional Sessions Judge added that though it had been mentioned by this Court in its order dated 13-12-1995 passed in Criminal Miscellaneous No,4400/B of 1995 that while the learned Judge was going to dictate the order of dismissal of the bail petition, the learned counsel for the petitioner prayed for permission to withdraw the same, the fact that the High Court had accepted the request of the accused person to allow him to withdraw his bail petition from the High Court such a withdrawal did not convey "solid view of the High Court that the petitioner was denied the concession of bail for all times to come". The learned Additional Sessions Judge also took notice of the fact that the injured Shoaib had not made himself available to the Medical Board constituted by the Medical Superintendent of D.H.Q. Hospital, Gujranwala for his re-examination and further that the fact that the injured Shoiab had gone away to Saudi Arabia sufficiently indicated that the said injured person was fit to travel abroad which consequently spoke of his satisfactory physical and medical condition.
11. The bail allowed to Abu Bakar accused by the learned Magistrate through his abovementioned order dated 18-2-1996 was likely to be re-called for more than one reasons:
12. It is not denied that Abu Bakar petitioner had filed a petition for his release on bail before this Court on 31-1-1996 which was entertained on 1-2-1996 and which bears Criminal Miscellaneous No,485/B of 1996. However no one had ever entered appearance to prosecute this petition which was consequently dismissed on 18-9-1996 having remained pending for more than seven months.
The application for grant of bail which had been allowed by Mr. Muhammad Saleem Hassan, a learned Magistrate exercising powers under section 30 of the Cr.P.C. At Gujranwala was submitted on 7-2-1996 pursuant to which the bail had been granted to Abu Bakar accused on 18-2-1996. This bail application makes no mention of the filing of and the pendency of Abu Bakar accused's bail application before the High Court. This important fact having been concealed and withheld from the learned Magistrate disentitles the said accused person to any relief in equity. It was argued that the bail petition before the learned Magistrate had been filed without the knowledge of Abu Bakar accused and thus he could not be burdened with the concealment of this fact from the learned Magistrate. This is strange logic. The abovementioned bail petition of Abu Bakar accused before this Court bearing Criminal Miscellaneous No,485/B of 1996 is accompanied by a power of attorney executed by the said accused in favour of Rana Abdul Majeed, Advocate. He was thus conscious of a petition having been filed before this Court for his release on bail. If his application for the same purpose before the learned Magistrate was unauthorised then he should have refused to be a party to the same and he should have refused his release on bail in pursuance of an order passed on such an application. He would have come to know of this situation when a cancellation of bail petition had been moved against him in the learned Court of session in March, 1996 when notice of the same had been given to him. Not only that he did not volunteer to refuse to accept the fruits of an alleged unauthorised bail petition but he in fact vehemently contested this petition for cancellation of bail. Similar is his conduct before this Court. Needless to mention here that such a conduct on the part of Abu Bakar accused is sufficient negation of the submission that the bail application in question before the learned Magistrate had been filed without his knowledge or without any authority from him. The bail in question allowed to Abu Bakar accused is liable to be re-called on this ground alone.
13. As has been noticed above the learned Magistrate had allowed bail to Abu Bakar accused on the ground that he had been in custody for about ten months without the challan having been submitted in Court; that the offence under section 324, C.P.C. Was at least prima facie, not made out as the injuries caused to the victim were on non-vital parts of his body and that the injured victim had refused to make himself available to the Medical Board for reassessment of his medical/physical condition.
14. The grant of bail on account of delay in the commencement or the conclusion of trials is now statutorily regulated by the 3rd proviso to section 497(1) of the Cr.P.C. It is not denied that in the present case the delay which had crept into the matter had not ripened into the kind of delay which in terms of the said provision of law, could confer any right on the accused person for his release on bail.
15. A mention has been made not only in the ing order of the learned Magistrate but even in the rejection of bail petition order by the learned Additional Sessions Judge that Shoaib P.W. Had not made himself available to a Medical Board. There is an indication in the abovementioned order of the learned Additional Sessions Judge that this Board had been constituted in the light of some order passed by the High Court. This position is factualty incorrect. It was through an order dated 13-11-1995 passed in Criminal Miscellaneous No,4400/B of 1995 that this Court had directed re- examination of Shoaib P.W. To find out the then prevailing condition of the injury sustained by him.
From the order dated 28-11-1995 it transpires that Shoaib P.W. Had appeared before the concerned doctor on 21-11-1995 and then on 27-11-1995 but on both these occasions the concerned doctor was not present. This Court then passed an order on the said date that the said doctor shall examine Shoaib P.W. On 29-11-1995 and the case was adjourned to 5-12-1995 to await the report of this re- examination From the order dated 5-12-1995 passed by this Court in the said petition it transpires that the medical report in pursuance of the said re-examination had been received in the Court and the learned counsel for Abu Bakar accused had sought an adjournment to go through the same. This report which is dated 30-11-1995 and consists of three pages is also available on the file which has been reproduced in the earlier part of this order. According to this report it had been found that the sciatic nerve had been permanently damaged and the injury had been declared as permanent Itlaf-i-Salahiyyat-i-Udw of left lower leg. This is therefore not correct either that Shoaib P.W. Had not made himself available for reassessment of the medical loss suffered by him or that the High Court had passed any order thereafter for the constitution of any Medical Board for further re-examination of Shoaib P.W. Who had constituted the Medical Board which is mentioned by the learned Magistrate in his ing order; under what authority and for what purpose, is thus not known.
Nor is any such order available on record. The impression gathered by the learned Additional Sessions Judge that since Shoaib P.W. Had gone away to Saudi Arabia, therefore his condition must have been satisfactory is an impression which is not well founded in record because it, is not unknown that a person with an invalid lower leg is capable of travelling by air unless the learned Additional Sessions Judge had some information that this Shoaib P.W. Had undertaken the journey to Saudi Arabia on foot.
16. The abovementioned opinion of the doctor regarding the status of Shoaib P.W.'s leg makes the injuries in question liable for punishment inter alia under section 336, P.P.C. And the imprisonment envisaged for the said offence is ten years.
17. An order passed on a bail petition is not a final judgment and is thus strictly technically speaking not a judgment in terms of section 369 of the Cr.P.C. There may thus be no bar in law on any Court in allowing bail to accused person despite dismissal of such a prayer on an earlier occasion but then the learned Magistrate and the learned Additional Sessions Judge need to know and remember that in the matter of administration of justice there is some thing known as propriety also. Ordinarily there would be no difference between a petition which is dismissed by a Court on merits and a petition which is dismissed as withdrawn. However, in the present case there was more than sufficient indication available in the order dated 13-12-1995 passed by this Court in Criminal Miscellaneous No,4400/B of 1995 that the learned Judge had not found Abu Bakar accused entitled to the concession of bail in the present case as a result of his lordship's assessm ent of the facts and circumstances of the said case. Grant of bail by a Magistrate after dismissal of the accused person's bail petition by the High Court without any fresh ground having accrued to such a person was a highly improper exercise of discretion by the said learned Court which conduct of the Magistrate was open to rather serious exception.
18. Similar appears to be the conduct of the learned Additional Sessions Judge who had refused to interfere with the ing order in question passed by the learned Magistrate.
19. In view of what has been noticed above, the bail allowed to Abu Bakar respondent in case F.I.R.
No,275 of 1995 of Police Station. Satellite Town, Gujranwala by Mr. Muhammad Saleem Hassan, a learned Judicial Magistrate at Gujranwala through his order dated 18-2-1996 is recalled. Abu Bakar respondent is directed to be taken into custody in terms of section 497(5) of the Cr.P.C.
20. My observations about the conduct of the said Mr. Muhammad Saleem Hassan, Magistrate that the ing order in question passed by him was seriously lacking in propriety and legality shall be placed on his service record. A copy of this order shall be sent to the Registrar of this Court for compliance of this order.
21. Copies of this order shall also be sent to Mr. Mansoor Akbar Kokab, a learned Additional Sessions Judge and to Mr. Muhammad Saleem Hassan, Judicial Magistrate wherever they be posted.
22. Record requisitioned from the Court of the learned Judicial Magistrate shall be immediately returned to the said learned Court.
Bail cancelled.