Applicant Muhammad Urs has sought bail in a case arising out of F.I.R. No,28 of 2002 of Police Station Baloch Colony, Karachi for an offence punishable under sections 353/324/34, P.P.C.
2. As per F.I.R., A.S.-I. Zulfiqar Hyder posted at Madadgar East, East Line, Karachi was on patrol on 16- 12-2000 alongwith HC Ghulam. Muhammad on motorcycle when they saw Car No,ADD-634 Suzuki Mehran going towards Defence View from the bridge of Baloch Colony in suspicious circumstances. The A.S.-I. Signalled the car to stop, but the persons sitting in the car opened fire on them. In return, the A.S.-I. And his companion also made fires and succeeded in apprehending applicant Muhammad Urs and co-accused Muhammad Tariq, while the third one made his escape good. On personal search, one .22 bore pistol and two live bullets were recovered from the applicant and both of then were taken to police station where the F.I.R. Was recorded.
3. The accused persons approached the trial Court for bail. Out of them Muhammad Tariq was granted bail by order dated 18-4-2002, inter alia, on the ground that no crime weapon was secured from him, and bail was refused to applicant. Muhammad Urs. The applicant moved an application for bail in this Court which was heard by another Bench and after hearing the arguments of learned counsel for applicant and learned State Counsel the application was dismissed on 26-4- 2002 on the ground that the offence fell under the prohibitory clause of section 497, P.P.C. And that there was sufficient material to connect the applicant with the commission of the offence. It was additionally observed that these crimes of attacking police party have become common in the society and the citizens are also feeling themselves unsafe from these types of culprits. A fresh application for bail has again been moved in this Court, but since my learned brother, who passed the earlier order, is sitting at Sukkur, the matter has been posted before me with the approval of Hon'ble Chief Justice.
4. I have heard Mr. Abdul Qadir Siddiqui, learned counsel for applicant and Mr. Fazalur Rahman Awan, learned State Counsel.
5. Learned counsel for applicant submitted that this Court was not correct in holding that the offence falls within the prohibitory clause of section 497, P.P.C. And further this Court had not taken notice of the fact that no injury was sustained by the police party and no empties of bullets were recovered from the place of incident, while the .22 bore pistol, secured from the applicant, still contained two live cartridges. As such, this Court can recall the earlier order and grant bail to the applicant as this Court has, in such cases, exercised discretion in favour of accused. For instance, in the case reported as Abdul Ghafoor v. State 1996 PCr.LJ 1573, bail was granted to the accused for such an offence. He further submitted that this was a case of sudden flare up and the intention to kill cannot be gathered from the circumstances of the case. He further argued that since the co- accused has been granted bail, under the rule of consistency the applicant is also entitled to the concession of bail. Learned State Counsel opposed the bail on the ground that the entire material available with the prosecution was duly considered by this Court and then the bail application was dismissed, therefore, there was no occasion to warrant recalling of the said order. Besides, according to learned State Counsel, the rule of consistency was not available as the case of applicant was distinguishable from that of Muhammad Tariq.
6. As regards the main contention that the earlier order may be recalled learned counsel vehemently relied on the observations made by the Hon'ble Supreme Court in Gulzar Hussain Shah v. Ghulam Murtaza PLD 1970 SC 335. I have gone through this judgment. The relevant observations of the Hon'ble Supreme Court are reproduced hereinbelow:-- "I am conscious of the fact that general principles of finality of judgment attaches to the decision or order of the High Court passed in criminal cases. But it will not apply to cases where an order is passed without jurisdiction or without giving any opportunity to the parties of being heard. In such cases section 561-A, Cr.P.C. Can be invoked for the purpose of doing justice between the parties and for seeing that the act of the Court does no injury to any of the parties. This is an inherent power of the Court and has been preserved by the above provision of law, in my opinion 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 Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is, however, not possible to enumerate the circumstances in which this provision can be invoked.
7. It has been observed in express term that in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decision. The order passed without jurisdiction or without giving an opportunity to the parties of being heard has been construed to be one of those circumstances. In the cited case the order was passed in the absence of respondents for no fault on their part and was held to be nullity in the eye of law. The position, with due respects, is altogether different in the instant case. Learned counsel for applicant was fully heard and on merits it was observed that there was sufficient material to connect the applicant with the case.
The order indicates that the facts of the case have been reflected therein. It has been noted in the arguments that a plea of ineffective firing has. Been taken on behalf of the applicant. On behalf of the State the bail had been opposed, inter alia, on the ground of recovery of .22 bore pistol from the applicant and the fact that he was captured on the spot. Indeed, no exceptional circumstances exist in the instant case to recall the earlier order. The incidence or such crime has been duly noted, while passing the said order which observation is also not open to question and will not furnish a ground for review of the earlier order.
8. In view of the discussion made in the foregoing paras I am not inclined to accept the bail plea.
However, realizing the position that accused is in custody with no progress at the trial, it is directed that since the case is founded on the evidence of two official witnesses the trial be concluded expeditiously. Accordingly, while dismissing the application for bail it is directed that the trial Court shall record the evidence of these two witnesses within a period of seven weeks from receipt of this order whereafter the applicant would be at liberty to move fresh application for bail in the trial Court. These are the reasons for the short order announced on 22-8-2002.