1. ' The facts leading to the present application for bail are that the applicants are facing trial before the learned Special Judge, Anti-Corruption (Provincial) Karachi, under sections 161 and 342, P.P.C.
2. With section 5(2) of Prevention of Corruption Act of 1947, in a case registered against them, at Police Station, Anti-Corruption Establishment, Karachi.
3. ' The brief facts of the prosecution case, as disclosed in the F.I.R. No,18 of 1998 lodged by Inspector Ghulam Hussain Mangi on 31-12-1998 are reproduced hereinbelow:-- "During the course of verification of the application of Mst. Rubina daughter of Late Rahim Khan it was alleged that on 19-4-1998 at about 23-45 hours A.S.-I. Nazir Khan alongwith H.C. Aamir Khan and two unidentified persons of C.I.A. West Saddar Karachi raided the house of Mst. Rubina situated at Momanabad Orangi Town, Karachi, apprehended, her brother Eid Muhammad, Jahangir Khan and brother-in-law Sher Muhammad and took them to C.I.A. Centre Saddar Karachi. A.S.-I. Nazar Khan also took search of the house and taken away a licensed revolver of Eid Muhammad, Cheque Book of Account No,2429 and balance amount of Rs,4,90,000 lying in the house drawn by Eid Muhammad against Cheque No,379626, dated 17-4-1998 for purchase of a vehicle. It was further alleged that on next day A.S.-I. Nazar Khan and others forcibly got signed cheque No,379626, dated 4-4-1998 amounting to Rs,5,10,000 by Eid Muhammad under threats at the C.I.A. Centre and released them after encashing the amount of the cheque from the bank.
4. ' The case is registered against A.S.-I. Nazar Khan, H.C. Aamir and two unidentified person of C.I.A.
5. West Saddar Karachi with the permission of the competent Authority received through the Deputy Director A.C.E. Karachi vide his Letter No,DY.D/ACE/98/5/9873, dated 31-12-1898. The offence falls under section 161/342/34, P.P.C. Read with section 5(2) Act 11-1947. Hence case is registered in compliance of section 157, Cr.P.C. Copies of F.I.Rs, are being sent to the competent Authority."
6. ' The applicants applied for bail before the trial Court but it was declined by the Court below vide order, dated 13-2-1999.
7. ' Being aggrieved by the order of trial Court, dated 13-2-1999 the applicant/accused filed C.B.
8. No,159 of 1999 before this Court and bail was declined to them by order, dated 17-3-1999 with the observation that applicants could repeat their plea for bail at any subsequent stage of the case if fresh ground became available to them.
9. ' The applicants/accused again moved the trial. Court for grant of bail but their bail plea was rejected by impugned order, dated 13-7-1999.
10. ' I have heard Mr. Ghulzaman Khan learned counsel for the applicants/accused and Mr. M. Arshad Lodhi, learned A.A.-G. For the State. The latter opposed the bail plea and also challenged the maintainability of this application I have also perused the material placed on record.
11. ' First of all I will take up the point of maintainability of the bail application.
12. ' It will be pertinent to reproduce herein under section 369, Cr.P.C. For ready reference:-- ' 369. "Court not to alter judgment save as otherwise provided by this Code or by any other law for the time being in force, or in the case of a High Court by the letter patent of such High Court, not Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error."
13. ' The plain reading of the above provision of law shows that after the Court has signed its judgment it cannot, alter or review the same, except to correct a clerical error. The wisdom behind it is that after signing and pronouncing judgment the Court becomes functus officio' as the cause attained finality so for that Court was concerned. Section 369, Cr.P.C. Does not put any embargo/restraint on the powers of Court in respect of passing any order on any application or otherwise at any stage of the case on the same subject-matter. In the case of Gulzar Hassan Shah v. Ghulam Murtaza reported in PLD 1970 SC 335, the Honourable Supreme Court laid down the following dictum:-- "Section 369 of the Cr.P.C. Does not control section 498 and in suitable cases section 561-A of the Criminal Procedure Code can be invoked. In the first place, an order passed under section 498, Cr.P.C. Is not a judgment within the meaning of section 369, Cr.P.C. Moreover, section 369 of the Criminal Procedure Code is in the Chapter relating to original trial and unless it is specifically applied to other proceedings under the Criminal Procedure Code, it cannot be said to have any application to other proceedings."
14. ' In this context reliance can also be placed on an unreported D.B. Decision of this Court in Criminal Bail Application No,1248 of 1996 (Maqbool Ahmed Shaikh v. The State). The relevant observations are reproduced hereinunder:-- "This ground being a new ground which was not considered in the earlier bail application, the present bail application would be competent and there would be no question of reviewing the earlier order passed by this Court. Besides, it be stated that the order passed on bail application is not a judgment within the meaning of section 369, Cr.P.C. Hence there would be no bar from passing of fresh order on fresh ground on the bail application."
15. Thus, it is crystal clear that if a fresh ground was raised which was not considered in the previous bail application, the Court is not devoid of the B power and jurisdiction to adjudicate the same.
16. ' It is not necessary to dilate upon the grounds which were already urged and decided vide order passed earlier.
17. The fresh grounds urged by the learned counsel for the applicant/ accused which are borne out from the record are that F.I.R. Was lodged on 31-12-1998 and during the course of investigation both the applicants/ accused were arrested and on 16-2-1999 they were remanded to judicial custody.
18. More than eight. Months have elapsed but so far even charge has not been framed in the case. It was further urged that in Departmental enquiry held against the applicant/accused A.S.-I. Nazar Khan by S.S.P. Karachi West was proved innocent as the charge against was not established. This ground was not considered while deciding the previous bail application. The contents of the copy of final order filed in support of this plea is reproduced hereinunder in extenso::-- "Office of the Senior Superintendent of Police, District West, Karachi ' No,SSP/W/DPC-I/5244-49/Karachi, dated 6-2-1999 Final order ' A.S.-I. (08/KAR) Nazar Khan of Police Line West (now posted at S.I.T.E. Police Station) issued show- cause notice vide this office No,SSP/W/DPC-I/62989, dated 23-10-1998, on the following grounds:- ' On 14-4-1998, Shahzad Tata son of Khalid Tata was kidnapped from jurisdiction of Police Station Aziz Bhatti, District West Karachi. The case vide F.I.R. No,115 of 1998 under section 365-A was registered. The kidnappers had demanded Rs,3 Crore for the release of Shahzad Tata.
19. ' A joint operation was launched by Anti-Terrorist Wing (A.T.W.) Special Branch and District East for the recovery of kidnapee with the assistance of C.P.L.C. Shahzad Tata was recovered following an encounter in the jurisdiction of Police Station Saeedabad District West Karachi. In this encounter two accused, who were latter identified as Raja Muhammad and Abdul Rauf, were killed while one accused had escaped from the scene (F.I.R. No,92 of 1998 under sections 353 and 324/34, P.P.C.
20. Police Station Saeedabad.
21. ' The Anti-Terrorist Wing of Special Branch continued it efforts to trace the absconding accused in the subject case he was identified as Eid Muhammad alias Eidoo resident of N.-W.F.P. Further background checks revealed that the gang was involved in number of Crimes/robberies, including the famous Farooq Soonar's dacoity case of Korangi and back dacoity in Mansehra, N.-W.F.P.
22. ' During the course of intelligence gathering, it was learnt that accused Eid Muhammad alias Eidoo alongwith his brother Sher Muhammad and Jehangir Khan (brother-in-law) was arrested by you, A.S.-I. Nazar Khan, while posted in C.I.A. Karachi after 4/5 days of the above encounter but he was released by you after accepting Rs,10 lacs and 10 thousand.
23. ' He submitted reply to the show-cause notice. He was called in Orderly Room and heard in person on 4-2-1999. As per enquiry report of S.D.P.O., Orangi Town Sub-Division, KYC vide his Letter No,S.D.P.O./Oangi/8260, dated 30-1-1998, the charge remained unsubstantiated. The show-cause notice is filed. The period of suspension from 20-10-1998 to 25-11-1998 treated as spent on duty.
24. (Sd.) Senior Superintendent of Police, District West Karachi."
25. It was argued that P.W.1 Robina Begum is real sister of P.W. Jehangir Khan, P.W. Sher Khan is brother-in-law of complainant as Mst. Shaheen real sister of complainant is wife of Sher Khan and Mst. Yasmin real sister of complainant is wife of P.W. Habibur Rehman. P.W. Eid Muhammad is brother of complainant and of P.W. Jehangir Khan. Thus, they are inter se related and interested.
26. P.Ws. Badruzaman and Muhammad Hassan have exonerated the applicants/accused from the culpability in the commission of this offence in their affidavits and no one from the bank has been cited as a P.W. In the challan. The inference would be that encashment of cheques is not proved. It was further stated that the challan was submitted after eight months under sections 342 and 161, P.P.C. Read .With section 5(2) of Prevention of Corruption Act, 1947.
27. ' Learned counsel stated that an application under section 249-A, Cr.P.C. Was moved before the trial Court but it was dismissed on 17-5-1999. The said order of dismissal has been challenged through Criminal Miscellaneous Application No,226 of 1999, under section 561-A, Cr.P.C. Wherein prayer for the quashment of proceedings was made and the same has been admitted by this Court. The Constitution Petition No,D-992 of 1999 has also been filed as the main offence has no nexus with Anti-Corruption Law. The same is sub judice before D.B.I. Of this Court.
28. ' The learned counsel for applicant has placed reliance on:--
(A) Nadim Hamid v. The State PLD 1997 Kar. 494,
(B) Mooso v. The State 1996 PCr.LJ 361,
(C) Abdul Karim alias Raja and another v. The State 1996 PCr.LJ 503,
(D) Abid Rashid v. State 1995 MLD 1829,
(E) Asma Khatoon v. Syed Shabbir Hussain Shah A.C.M. And F.C.M. Court-IV, Karachi West and 2 others PLD 1996 Kar. 517,
(F) Kanwar Khalid Younus v. The State 1993 PCr.LJ 437,
(G) Muhammad Amin v. The State 1973 PCr.LJ 661,
(H) Saleem Akhtar v. The State PLD 1980 Lah. 127, (T) Muhammad Aslam v. The State 1997 PCr.LJ 1736, and
(I) Ghulam Qasim v. Superintendent, District Jail, Multan and another 1993 PCr.LJ 2066.
29. Consequently, upon considering the fresh grounds cumulatively, I am of the considered view that case necessitates further inquiry as contemplated under section 497(2), Cr.P.C. The applicants/accused are consequently granted bail in the sum of Rs,5 lacs each and P.R. Bond in the like amount to the satisfaction of the trial Court.