GHULAM HUSSAIN vs KARIM BAKHSH And Others

ORDER

Ghulam Hussain petitioner has filed this application under section 497(5) of the Code of Criminal Procedure, for the cancellation of bail, allowed to Karim Bakhsh and Abdullah respondents by me on 10th August, 1973 (Criminal Miscellaneous No. 3134/B of 1973), in a murder case registered against them and one Musa. When this order was made, the commitment proceedings were in progress and it was not brought to my notice that a similar petition (Criminal Miscellaneous No. 2196/8 of 1973), was dismissed on 4th June, 1973, by Mr. Justice Muhammad Afzal Zullah.

2. The respondents were allowed bail by me for the reasons that they were empty handed and were not attributed any overt act. They were however, alleged to be present at night time with the principal offender Musa, who was armed with a gun and had fired at Karim Bakhsh deceased.

Moreover, the respondents lived at a distance of 123 Karams from the place of occurrence. Their presence with the principal offender without their having assisted him in any manner was also considered by me. Learned counsel for the State who appeared then, placed reliance on Chiragh Din and others v. The State PLD 1967 SC 340 which authority is distinguishable from the present case. In the cited case, a Lalkara was attributed to use the accused. But in the present case ever a Lalkara is attributed to the accused. But in the present case even a Lalkara is not attributed to the respondent.

3. Learned counsel for the petitioner has placed reliance on Sultan Ali v. Shameer and others Criminal Miscellaneous No. 3978/B of 1973. In a similar situation, bail allowed to the accused was cancelled by the same learned Judge, who had granted it. Learned counsel for the petitioner has also placed reliance on Farid v. Ghulam Hussain 1968 PCr.LJ 1424 and Muhammad Khan v. Sana Ullah PLD 1971 SC 324. These two authorities have laid down the rule that a bail petition should be heard by the same Judge, who has once considered the matter in order to avoid conflicting orders.

4. The petition Criminal Miscellaneous 2134/B of 1973 was presented by Mr. Hakim Ali Dogar, Advocate and was argued by Mr. Muhammad Latif Khan Khosa, Advocate, who was assisted by Mr. Dogar. There were no additional grounds on merits in the second petition. This dismissal of the earlier petition was concealed. I sent for Mr. Khosa and Mr. Dogar Advocates, Mr. Khosa stated that when the petition was being argued before me he did not know, if it had not been brought to my notice by Mr. Dogar earlier, that a similar petition had already been dismissed. Mr. Dogar stated that Mr. Khosa did not tell him that a similar petition was dismissed by this Court earlier in which Mr. Khosa appeared as a counsel on behalf of the present respondents. Both the Advocates have tendered their unqualified apology. In view of their apology I do not propose to take any action against them.

5. Keeping in view the rule of propriety, laid down by the Supreme Court in cases where successive bail applications are made, which come up for hearing before different Judges, moreover, bail in non-bailable offence is not a right, but a concession, I accept this petition and cancel the bail of the respondents, with the observation that either the same or a fresh bail application by the accused-respondents be placed before my Lord the Chief Justice, for whatever orders of his Lordship deems proper.