1. NASIM HASAN SHAHJ.-By an order dated 14-2-1978, leave to appeal was granted by this Court in Cr. P. S. L. A. No. 368 of 1976 against the acquittal of the present applicant Riaz of the charge of murdering one Noor Elahi, and while doing so, it was directed that non-bailable warrants for his arrest shall issue.
2. Riaz applicant submitted Criminal Misc. No. 14 of 1976 (in Criminal S. L. A. No. 368 of 1976) praying that the order granting leave to appeal passed on 14-2-1978 be recalled and that in any case the direction regarding the issue of non-bailable warrants of arrest be withdrawn. In support of this application it was submitted by the petitioner's learned counsel Mr. Ijaz Hussain Batalvi, that the applicant having been acquitted by both the Courts below, the presumption of his innocence stood reinforced, and, accordingly, there was no necessity to have him arrested during the pendency of the appeal in this Court. The Court, after considering the relevant circumstances, came to the conclusion that in the present case, prima facie, the order of acquittal passed by the Courts below did not appear to be justified as it was a day light occurrence. Moreover, leave to appeal bad been granted only recently and therefore there was no compelling reason at present to allow bail. It was, however, observed that the application for bail could be repeated if there was inordinate delay in the hearing of the appeal. The application (Criminal Misc. No. 14 of 1976) was disposed of in the above terms on 22-3-1978.
3. However, shortly thereafter, by an application moved on 6-4-1978 (Criminal Misc. No. 15 of 1973 in Cr. P. S. L. A. No. 368 of 1976), it was again prayed that pending determination of the appeal, Riaz accused may be enlarged on bail. The ground taken in this application was that the notice required by Order VI, rule 1 of the Supreme Court Rules requiring that orders in Chambers shall be made only after notice to the parties to be effected thereby, was not complied with in the instant case. In this connection it was pointed out that although, there was a postal registration receipt evidencing the issuance of notice, an inspection of the record revealed that the notice purporting to have been sent by the petitioner in the main petition for leave to appeal to the present applicant intimating the fact of his filing a petition for special leave to appeal was not addressed to the applicant but it was addressed to "Riaz son of Sardar Khan, caste Awan, resident of village Khokhar, Tehsil Khushab, District Sargodha". However, the correct name and parentage of the respondent is "Riaz son of Alam Khan". Consequently it was evident that the statutory notice required to be issued to the party to be affected, according to the Supreme Court Rules, was not served on respondent No. 1 and his submission, therefore, was that he was condemned unheard. Since the order for grant of leave to appeal and issuance of non-- bailable warrants was obtained in the above circumstances, it was prayed that respondent No. 1 may be enlarged on bail awaiting the determination of the appeal.
4. The above application came up for hearing before a Bench of this Court on 30-4-1978. It is submitted before us that as the Court was of the view that the proper remedy for the applicant was to seek review of the leave ranting order passed on 14 2-1978, he withdrew the bail application with eave to file a review petition against the order granting leave, passed on 4-2-1978. Criminal Misc.
5. No. 15 of 1978 was, therefore, dismissed as withdrawn with leave to the applicant to file a review petition. Hence the applicant has now filed this review petition (Criminal R. o. 9 of 1978) in Criminal P. S. L. A. No. 368 of 1976.
6. The Learned counsel, in support of this petition, has relied upon the terms of Order VI, rule 1 of the Supreme Court Rules, which to the extent relevant, lay down as follows: "Except where otherwise provided by the Statute or prescribed by these r3. Rules, all applications which in accordance with these rules cannot be made in Chambers shall be made before the Court on motion after notice to the parties affected thereby It is argued that if the notice was in fact, addressed to the applicant at his correct name and address, he would have filed caveat and appeared when the matter was taken up for admission of the petition for leave to appeal. A fraud was deliberately or inadvertently practised by respondent No I upon this Court, firstly by obtaining the admission of the petition by the Registry, and, secondly, by obtaining leave to appeal from the Court itself on 14-2-1978 without affording an opportunity of hearing to the applicant.
7. We have seen the notice sent to respondent No. 1 which does indeed show that it is addressed to Riaz son of Sardar Khan, whereas the correct name of the applicant is Riaz sore of Alam Khan. We, therefore, called upon Mr. Abid Nawaz, Advocate-on-Record, to explain the circumstance in which the notice was addressed to Riaz son of Sardar Khan, instead of Riaz son of Alum Khan. He frankly conceded that a mistake had been committed which he attributed to the typist who had wrongly typed out the parentage of Riaz on the basis of which the notice was also subsequently sent to the wrong person. A question therefore does arise as to what is the effect of the notice not being addressed to the correct respondent. In other words, whether in the above circumstances the order granting leave to appeal oecame coram non judice.
8. Mr. Ijaz Hussain Batalvi conceded before us chat no such grave effect could be occasioned by the notice not being sent to the correct respondent. In fact his position was that he was not challenging the order granting leave to appeal at all and his plea merely was that the order of issuance of non--bailable warrants was not justified in the circumstances of this case, namely that he was deprived of the opportunity of making his submissions at the stage when the question of issuance of warrants arose.
9. We, therefore, heard the learned counsel for the petitioner on the question as to whether the non- bailable warrants ought to have been issued against, the petitioner or not and after hearing him have reached the conclusion that there is no reason for modifying our earlier order dated 14-2- 1978, pointed out in our previous order, the fatal shot was attributed to the applicant Riaz, and that being a daylight occurrence, there was hardly any possibility of mistaken identity and the offence alleged against the accused being punishable with death or imprisonment for life, the grant of leave was no: only justified but the order of issuance of non-bailable warrants was quite appropriate. Hence no ground for review of our order passed on, 14-2-1978 exists. This petition is, accordingly, dismissed.