NAZAR SAID Versus THE STATE

This is an application under section 497/498 of the Criminal Procedure Code challenging the order dated 2‑1‑1976 of the learned Additional Sessions Judge, Mardan, whereby bail granted to the petitioner was cancelled and he was remanded to judicial custody pending his trial.

2. The facts giving rise to the present application are that on 4‑10‑1975 at about 13‑20 hours the complainant, Mehr Dil, was grazing his sheep in the field of Kabal Khan when Nazar alongwith his brother, Qamar, appeared. It is alleged that Nazar was armed with a dagger and on coming close to the complainant he asked him as to why he had damaged his crop by grazing sheep in his field, a couple of days prior to the occurrence. The complainant replied that the allegation was incorrect. His sheep were never grazed in his field, on which an altercation ensued during which Qamar caught hold of him and Nazar dealt him dagger blows injuring him on his left side of the abdomen and on his thigh and thereafter they decamped.

3. The motive, according to the complainant, was that the petitioner thought that his crop was damaged by the sheep which was intentionally grazed in their fields.

4. The petitioner applied for bail to the Magistrate having jurisdiction and was allowed bail in the sum of Rs. 10,000 with two sureties in the like amount, on the ground that the offence the petitioner was charged with, fell under the purview of section 326, P. P. C. which is neither punishable with death nor imprisonment for life. The complainant moved the Court of Session and the learned Additional Sessions Judge cancelled the bail granted to the petitioner for the reason that it has escaped the notice of the learned Magistrate that under section 326, P. P. C. the punishment provided is imprisonment for life or ten years' R. I. and after the amendment of section 497, Cr. P. C. by Ordinance VIII of 1973 offences punishable with ten years' R. I. or more have been brought within prohibitory clause of section 497, Cr. P. C.

5. The learned counsel for the petitioner argued that the impugned order passed by the learned Additional Sessions Judge is not well founded. Firstly, that the complainant had not remained in the hospital for more than 19 days and injury thus sustained by him does not fall under the purview of section 326, P. P. C. Secondly, that the learned Additional Sessions Judge was not empowered to cancel the bail because he was not a Sessions Court within the ambit of subsection (4) of section 17 of the Cr. P. C. as he could exercise his powers under section 497, Cr. P. C. only when the Sessions Judge who himself is unavoidably absent or incapable of acting, and make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge and it is only then that the Additional Sessions Judge has the jurisdiction to deal with such application. To conclude his argument that an Additional Sessions Judge cannot grant or cancel bail unless powers to do so are conferred on him under subsection (4) of section 17 of the Cr. P. C. reliance was placed on an Indian case reported in Kalu and others v. State (A I R 1954 Raj. 22) wherein it was held that an Additional Sessions Judge had no authority to make an order under section 497(5), Cr. P. C. for the cancellation of the bail of the accused because under section 497, Cr. P. C. the powers to cancel bail have been invested in the High Court or the Court of Session, and no mention has been made regarding the exercise of those powers by an Additional Sessions Judge or an Assistant Sessions Judge. Obviously, therefore, it was not con templated by the Code that the powers relating to the cancellation of bail are to be exercised by an Additional Sessions Judge, except in cases where specific powers in this behalf are conferred on him by the Sessions Judge. He also re ferred to Mupal v. Ghulam anal others (P L D 1953 Lah. 110) wherein his Lordship, the Chief Justice Muhammad Munir as he then was, held that an Additional Sessions Judge does not become a Court of Session for the purposes of section 498 of the Code of Criminal Procedure unless the notification appointing him as Additional Sessions Judge contains a direction to that effect or until the Sessions Judge himself by a general or special order assigns any application or applications under that section to him.

6. As regards the first point raised by the learned counsel, suffice it to say that the injury caused to the complainant by the petitioner was held to be grievous per report of the doctor and apparently the injury was on the vital part of the body which, with little more penetration could have caused) his death. Therefore, I do not find any force in this argument.

7. As far as the second objection raised, a notification regarding appointment of Additional Sessions Judge under section 9(3) of the Code of Criminal Procedure can be issued which reads "the (Provincial Govern ment) may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts". And to this effect I find that a notification has been issued by the Provincial Government, which is reproduced below:‑

No. S. O. Judl (HD)3‑8/71.‑In exercise of the powers conferred by subsection (3) of section 9 of the Code of Criminal Procedure, 1898 (Act V of 1898), the Government of N: W. F. P. are pleased to appoint with effect from the date of assuming the charge, the officers mentioned in Column 2 of the Table hereinafter appearing, to be the Additional Sessions Judges within the Session Divisions/specified against each in column 3 thereof:-

S. No.

Name of Officers

Sessions Division

1.

Qazi Muhammad Asif, Additional Sessions Judge, Peshawar.

Sessions Division. Peshawar.

2.

Mr. Muhammad Azam Khan, Additional Sessions Judge, Peshawar.

Do

3.

Mr. Abdur Rauf Khan Laghmani, Additional Sessions Judge, Mardan.

Sessions Division, Mardan"

8. A reference to the original file of bail cancellation application No. 652 of 1975 shows that the learned Sessions Judge, Mardan, has passed the following order on 20‑11‑1975 in the case in hand:‑

"Presented by Muhammad Quresh Khan, Advocate, Mardan. Put up before the learned Additional Sessions Judge, Mardan today for disposal."

9. Referring to the authorities cited by the learned counsel for the petitioner (Mupal v. Ghulam and others) it was held that an Additional Sessions Judge does not become a Court of Session for the purposes of section 498, Cr. P. C. unless a notification appointing him as such contains a direction to that effect and until the Sessions Judge himself by a general or special order assigns an application or applications under that section to him. Therefore this argument also loses its force as I find that there is a notification, referred to above, appointing the learned Additional Sessions Judge to exercise jurisdiction in one or more such cases and there ii also a specific order, dated 20‑11‑1975 of the learned Sessions Judge, Mardan, assigning the application for cancellation of bail to the learned Additional Sessions Judge, Mardan.

10. As regards the merits of the application, I find that the petitioner has been directly charged for stabbing the complainant and injury has also been determined as grievous by the doctor.

11. In view of the forgoing discussion, therefore, I dismiss this petition.

S. A. H.

Petition dismissed.