ZAHID and another vs THE STATE and another

ORDER

1. ' The appellants herein (accused in a case under section 302/34, P.P.C.) were arrested by the police.

2. They moved an application for bail after arrest before the Additional Sessions Judge, Faisalabad, who vide his order, dated 1-111990, accepted the application and ordered their release on bail. The complainant moved an application (Criminal Miscellaneous No,4709-B of 1990) in the Lahore High Court for cancellation of bail. A learned Single Judge of the said learned Court, vide order, dated 21- 1-1991, was pleased to set aside the order granting bail passed by the Additional Sessions Judge and directed that the appellants herein be taken into custody and lodged in jail. Feeling aggrieved, the appellants have filed a petition for leave to appeal against the aforesaid order dated 21-1-1991 and prayed for restoration of the order dated 1-11-1990 passed by the Additional Sessions Judge, Faisalabad allowing them bail.

3. ' The Branch Registry of this Court, however, refused to entertain the petition for leave to appeal and the order dated 28-1-1991 passed by the Assistant Registrar in this regard is as follows:-- "This petition is hit by the second proviso to Rule 8, Order XXIII of the Supreme Court Rules, 1980.

4. Therefore, it cannot be entertained and the same is hereby returned to the A.O.R."

5. ' This is an appeal under Order V, Rule 3 of the Supreme Court Rules against the aforesaid order of the Assistant Registrar.

6. ' Sh. Shaukat Ali, learned counsel for the appellants, Mr. Maqbool Elahi Malik, learned Advocate- General, Punjab and Qazi Muhammad Saleem, learned counsel for the complainant, have been heard.

7. ' Rule 8 of Order XXIII of the Supreme Court Rules states-- "Pending the disposal of a petition under this Order, the Court may direct that execution of any order for imprisonment or fine, against which leave to appeal is sought, be stayed, on such terms as the Court may deem fit: ' Provided that unless surrender is first made to an order of imprisonment, as above, the petition shall not be entertained: ' Provided further, petitions, involving bail before arrest may be entertained and posted for hearing if the petitioner undertakes to appear and surrender in Court."

8. It is manifest from the terms of the first proviso that unless surrender is made to an order of imprisonment the petition shall not be entertained.

9. ' Now in this case there is no order of imprisonment that is challenged and the order which is challenged is the order cancelling the bail granted to the appellants by the Additional Sessions Judge. Accordingly, the bar contained in the first proviso of Rule 8 does not apply in the circumstances of the present case.

10. Similarly, the second proviso is also not attracted in the facts and circumstances of the case as the petition filed before this Court does not involve the question of 'bail before, arrest' in which case a petition can be entertained if the petitioner undertakes to appear and surrender in Court.

11. Accordingly, the provisions of Rule 8 cannot be invoked in the facts and circumstances of this case.

12. Nor is there any other specific rule in the Supreme Court Rules dealing with the situation which arises in this case. In such a situation where no specific bar to the entertainment of the petition to the effect that unless the petitioner surrenders to the police authorities exists, the residuary rule namely Rule 6, Order XXXIII of the Supreme Court Rules permitting the Court under its inherent powers to make such orders as may be necessary for the ends of justice, can be invoked and any order which furthers the ends of justice can be passed, in the light of the circumstances of a given case.

13. ' The learned counsel for the parties have, I may add, brought two judgments of this Court wherein a similar situation arose, to my attention, namely Bakhta and others v. The State 1985 SCMR 97, where the facts were similar in that the Additional Sessions Judge had allowed bail but his order was cancelled by the High Court and directed that the petitioners be taken into custody forthwith and when the matter came to this Court it was observed that the petition could be heard only if the petitioners 'surrender themselves before this Court' and Musharaf Khan v. The State 1985 SCMR 900 where too the situation was similar as the Sessions Judge had admitted the petitioner to bail but on an application for cancellation of bail under section 497(5) read with section 439, Cr.P.C. The High Court had cancelled the bail and this Court entertained the petition agianst the order of the High Court while allowing bail and observed 'the petitioner, who has surrendered himself before us, is allowed to remain on bail on the bail bond furnished by him in pursuance of the order of the learned Sessions Judge, Sheikhupura dated 5-4-1980."

14. ' The upshot is that this appeal is allowed. The order of the Assistant Registrar dated 28-1-1991 is set aside. The Criminal Petition for Special Leave to Appeal should now be put up before the Court for considering whether the petition for leave may be entertained without the accused surrendering before the police.