MUHAMMAD YAMEEN Versus THE STATE
ORDER
1. This is second bail application filed on behalf of applicant Muhammad Yameen, who is involved in a case registered as F.I.R. 187/87 under sections 307 and 148, P.P.C. at Gulberg Police Station. Earlier bail application had been rejected by me on 26th November, 1987. On 14‑1‑1988 Criminal Bail Application No. 36/88 was presented on behalf of co‑accused Abdul Ghafoor and Abdul Aziz. The said co‑accused were allowed bail before arrest by my learned brother Mamoon Kazi, J. The ad interim order of bail was, later on, confirmed on 4th February, 1988 but unfortunately this fact was not brought to the knowledge of his Lordship that bail application of co‑accused had been heard and decided by me earlier. It is stated in the bail application now presented on behalf of the applicant that the part assigned to him in commission of offence is exactly the same as is assigned to co‑accused Abdul Ghafoor. The factual aspect of the matter is not disputed by the learned A.A.‑G. as well.
2. The learned A.A.‑G. however, opposes the grant of bail by contending that the order of Mr. Justice Mamoon Qazi has no binding force on me since he has also passed the said order sitting singly. He also urges that since no witness has been examined and no further material has come on record justifying the grant of bail to the applicant, he cannot be enlarged on bail simply on the ground that co‑accused has been granted bail. Learned counsel for the applicant has drawn my attention to two decisions of the Supreme Court, namely (1) Amiruddin v. The State P L D 1977 S C 602 and (2) Gulzar Hassan Shah v. Ghulam Murtaza Shah P L D 1970 S C 335. In the first above case, Supreme Court has held:
3. "According to section 369 of the Code no Court when it has signed its `judgment', shall alter or review the same except to correct a clerical error. But strictly speaking an order allowing or cancelling bail does not amount to a judgment within the meanings of this section. In Gulzar Hassan Shah v. Murtaza and 4 others (3) this Court has held that an order passed under section 498 of the Code is not a `judgment' within the meanings of section 369 of the Code so as to operate as a bar against its alteration or review. In this connection the Court further observed that the general principle of finality of judgment no doubt attaches to the decisions or orders of the High Court passed in criminal cases. Nonetheless, in the opinion of the Court in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which were not governed by sections 369, 424 and 430, with a view to give effect to any order under the Code or to prevent abuse of the process of the Court or otherwise to secure the ends of justice. At the same time the Court further observed that it was not possible to enumerate the circumstances in which the inherent power can be invoked. In that case before the Supreme Court it was conceded that application for bail can be made from time to time on fresh material. But in the context of the observations made by the Supreme Court this concession does not necessarily connote that in the absence of any fresh material under no circumstances a second application for bail or for the cancellation of bail already allowed can be entertained."
4. I have given my earnest consideration to submissions made at the Bar and I find that the State has not moved for the cancellation of the bail granted to the co‑accused Abdul Ghafoor although he has been assigned to have committed the same part in the commission of offence which is attributed to the applicant before me. It would not be in consonance of dispensation of justice to keep one accused on bail while the other in custody for same offence when in the commission whereof both accused are stated to have played the same part. In this view of the matter, I am of the opinion that it is one of those exceptions of cases wherein I can exercise my inherent power in order to secure the ends of justice. I, therefore, allow bail to the applicant in the sum of Rs.30,000 with one surety and P.R. in the like amount to the satisfaction of the trial Court.
5. S.G.D./M‑545/K
6. Bail allowed.