' Muhammad Khan who is complainant of a case registered against respondent Muhammad Ijaz etc. Vide F.I.R. No,50, dated 3-5-2003 for offences under sections 324/109/337-F(iii and vi), P.P.C. At Police Station, Katha Sagraal, District Khushab, seeks cancellation of bail under section 497(5), Cr.P.C., granted to the respondent by the Additional Sessions Judge, Khushab vide order, dated 15- 1-2004, on the ground that the respondent is nominated in the F.I.R. Specific role of firing and causing injuries with fire-arm to Muhammad Aslam is attributed to him and that the offence under section 324, P.P.C. Falls within the prohibitory clause of section 497, Cr.P.C. And the learned Additional Sessions Judge has granted bail only on the ground that the case has not been disposed of by the trial Magistrate within the specified period as contained in his earlier order.
2. Vide order of this Court, dated 22-1-2004, notice was directed to be issued to the respondent in pursuance of which the learned counsel for the respondent has entered appearance. It is contended by the learned counsel for the respondent that the petition under section 497(5), Cr.P.C.
Directly before this Court is not maintainable no reason for not approaching the bail-granting Court has been mentioned and the complainant contributed in delay in disposal of the case, the order of the learned Additional Sessions Judge, dated 29-8-2003 has been violated. Reliance has been placed on the cases reported as Mirza Khan v. Lal Khan and another 1976 PCr.LJ 324 at 326.
Barkaat Ahmad v. Said Akbar and 2 others 1981 PCr.LJ 1208 at 1209. The State v. Zahid Rasool 1990 PCr.LJ 340 at 341(b) Karachi and Nazir v Amir Din and another 1971 SCM R 637.
3. I have considered the arguments of the learned counsel for the parties and perused the record with their assistance. Before I proceed to decide the application on merits, it is appropriate to dispose of the preliminary objection raised by the learned counsel for the respondent regarding maintainability of this petition under section 497(5), Cr.P.C. Directly before the High Court without approaching the learned Additional Sessions Judge for cancellation of bail. Ordinarily where the accused after release on bail misuse the same interferes in the proceedings of the trial, extends threats to the witnesses or creates any sort of hindrance in conclusion of the trial, the Court granting bail can cancel the same on the basis of evidence before him by exercising jurisdiction under section 497(5), Cr.P.C., but if the bail granting order is without jurisdiction and without observing the mandatory provision of law on authorities of the Superior Courts then the High Court has jurisdiction to entertain the application under section 497(5), Cr.P.C. For cancellation of bail of the accused. In the case of Nazir 1971 SCM R 637 (supra) the Hon'ble Supreme Court while interpreting the provisions of section 497(5), Cr.P.C. Observed that, "the High Court under the mistaken belief that the learned Sessions Jude had ignored the evidence of the threats mentioned in the revision petition, although the same were never placed before him" and set aside the bail cancellation order of the High Court.
4. On the touchstone of section 497(5), Cr.P.C. And case of Nazir (supra), I have gone through the facts of the case and examined the impugned order. It is an admitted position on the record that vide order, dated 29-8-2003 while disposing of the application for post-arrest bail of the respondent a direction was issued by the learned Additional Sessions Judge to the trial Magistrate to take all measures for conclusion of the trial till 31-12-2003. From perusal of the order, it appears that the case was adjourned on two dates for disposal of the application for summoning the co- accused of the respondent (mentioned in Column No,2 of the report under section 173, Cr.P.C.) on 18-11-2003 and 20-11-2003 when the learned counsel for the accused was not present. On 4-12- 2003 evidence of the prosecution was not present and on 8-12-3003 examination-in-chief of Muhammad Khan complainant was recorded. The above resume of the facts would disclose that both the parties contributed in delay in disposal of the case in violation of the order, dated 29-8- 2003 and this was the only ground which prevailed with the learned Additional Sessions Judge to grant bail to the respondent. Suffice to say that jurisdiction of the Court to grant bail to the accused on statutory ground is no more available to the accused. Bail under section 497, Cr.P.C. Can only be granted if there are no reasonable grounds to believe that the accused has committed the offence for which he has been charged but there are grounds for further inquiry into the guilt of the accused under section 497(2), Cr.P.C. And to record a finding that there are grounds of further inquiry the Court has to record a definite finding that there are no reasonable grounds to believe that the accused is involved in the case. See case reported as Arbab Ali v. Khamiso and others 1985 SCM R 195.
' In the present case, Muhammad Ijaz respondent is nominated in the F.I.R. A specific role of firing and causing of 8 fire-arm injuries to Muhammad Aslam is attributed to him and the offence under section 324, P.P.C. Falls within the prohibitory clause of section 497, Cr.P.C. In this view of the matter, the respondent has- illegally been granted bail through the order, dated 15-1-2004, which is without jurisdiction and the same, therefore, is recalled and the to the respondent is cancelled.
Bail cancelled.