SAFFAR Versus STATE
ORDER
This bail application was fixed on 10-5-1989 when it was found that police papers had not been received in spite of three adjournments granted to the State and of appeared from the certified copy of the F.I.R. that applicant Saffar, although he was one of the four accused persons, had not himself caused any hatchet blow to the deceased. However, learned Additional Sessions Judge in his order dated 12-5-1988 had observed that applicant Saffar had also caused sharp side and backside hatchet blows to the deceased but since this specific part played by applicant Saffar had not been shown in the F.I.R., it was inferred that there was some mistake of facts in the order of the learned Sessions Judge and, therefore, relying on the certified copy of the F.I.R. in which applicant Saffar was not shown to have played any specific role in causing the death of the deceased, the applicant was granted bail in the sum of Rs. 50,000 with two sureties in the like amount. However, shortly after the order was announced, Mr. A.G. Mangi learned A.A.-G. moved an application under Section 561-A Cr.P.C. for review of the bail order on the ground that he had received the police papers which showed that the certified copy of F.I.R. was not correct and that the original F.I.R. did implicate the applicant who was reported to have inflicted hatchet blows to the deceased. For maintainability `of this application he relied on PLD 1975 Kar,
80. Notice of the application was ordered to be issued to the counsel of the applicant and the operation of the bail order was stayed. Now Mr. Akhlaq Ahmed Siddiqui, Advocate for the applicant and Mr. K.M. Nadeem, A.A.-G for the State have been heard,
2. I may state at the outset that if the certified copy of the F.I.R. had been correctly prepared and the role assigned therein to applicant Saffar had been duly incorporated in the certified copy, the applicant would not have been granted bail. Grant of bail to the applicant was the result of the fact that the certified copy placed by the applicant on the record omitted an important portion from the original F.I.R. inasmuch as the certified copy did not contain the allegation of the complainant, which is available in the original F.I.R. in the police papers, that applicant Saffar had also inflicted hatchet injuries to the deceased. The only point for the consideration of the Court is as to whether this application under Section 567-A. Cr.P.C. is maintainable.
3. Learned counsel for the applicant relied on NLR 1982 Cr.L.J. 178 (1) (Muhammad Amin and 4 others v. The State) in which it is held that the inherent jurisdiction of the Court under Section 561-A Cr.P.C. is not available for recalling the order suspending a sentence in a criminal appeal against conviction under Section 302/149 PPG. Another authority retied upon by learned counsel for the applicant is PLD 1981 Kar. 711 (Ghulam Hussain v. The State) which held that the general principle of finality attaches to the decision and orders of High Court in criminal cases and such orders are not open to review except in case of being coram non judice or in contravention of law or where no opportunity of hearing has been afforded to the parties concerned. On the other hand learned AA.-G has relied upon PLD 1967 Lah. 883 (Kh. Muhammad Rafiq v. The State) which holds that review is barred only in respect of judgment or final order in the nature of judgment and that interlocutory order can be reviewed by Court Yet another authority relied upon by learned A.A.-G is PLD 1970 S.C. 335 (Gulzar Hassan Shah v. Ghulam Murtaza and 4 others). This is a Full Court judgment in which it is held that Section 369 Cr.P.C. and section 561-A Cr.P.C. can be invoked in suitable cases. The relevant portion from the judgment is produced below:
"There .is no quarrel with this proposition of law. The question for consideration is whether section 369 of the Criminal Procedure Code controls section 498, Cr.P.C. or section 561-A of the Criminal Procedure Code applies to it. In my opinion, section 369 of the Cr.P.C. does not control section 498 and in suitable cases Section 561-A of the Criminal Procedure Code can be invoked. In the first place, an order passed under section 498, Cr.P.C. is not a judgment within the meaning of section 365, Cr.P.C. Moreover, section 369 of the Criminal Procedure Code is in the Chapter relating to original trial and unless it is specifically applied to other proceedings under the Criminal Procedure Code, it cannot be said to have any application to other proceedings."
4. Taking into account the authorities relied upon by the learned counsel for the parties as well as their arguments I am oaf the view that application under Section 561-A Cr.P.C. moved by learned AA.-G is competent under the law. Bail order dated 10-5-1989 was passed on a mistake of fact resulting from the perusal of a defective certified copy of F.I.R. The error was brought to the notice of Court even less than two hours of the announcement of order. This is a fit case in which the inherent power of the Court under Section 561-A CIY.C. should be invoked as this is the only way to secure the ends of justice. Learned counsel for the applicant argued that bail can only be cancelled under Section 497 (5) Cr.P.C. but the prosecution had not made any application under this provision of law. Contention of the learned counsel is not correct. This is not a case for cancellation of bail but of taking necessary steps towards securing the ends of justice and to rectify the error resulting from the placing on record a defective certified copy of the F.I.R. Since the complainant had assigned specific roles to applicant Saffar in the infliction of hatchet blows to the deceased and since the eye-witnesses in their 161 Cr.P.C. statements have supported this version, I am of the view that the applicant is not entitled to bail. The order dated 10-5-1989 is re called and the bail application is dismissed. The applicant and many other co -accused are in custody for considerably long time and I would direct the learned trial Court (Sessions Judge, Larkana) to expedite the hearing of the case. If any Co-accused is absconding necessary proceedings under Sections 87 and 512, Cr.P.C. may be taken against them, if warranted by circumstances.
Sd. Salahuddin Mirza.
Judge,
Karachi.
Dated 17-5-1989.
P.S. Learned Sessions Judge Larkana may be directed to hold enquiry into the preparation of incorrect certified copy of F.I.R. to fix responsibility therefore and to take suitable action against the person or persons found responsible. The certified copy may be sent to him. Its photocopy may be retained on the file.
SA.N./S-431/K
Order re-called.