ABDUL GHAFFAR vs TANVEER ISMAIL AND Another

ORDER

1. DORAB PATEL, J.-In a background of enmity between them, there was an incident between the petitioner and the first respondent in Karachi on 29-10-1978 at about 4-00 p.m. The shops of both the petitioner and the first respondent are very near each other on Elphinstone Street in Karachi, and, according to the prosecution, the petitioner fired at the first respondent on the street and injured him, whilst, according to the petitioner, it was the first respondent, who came with armed men to his shop and threatened him. Therefore, he fired a pistol to scare them away and the shot accidentally hit the first respondent causing a very minor injury.

2. Both parties reported the occurrence to the Police and both were late in making their reports. The delay on the petitioner's part was much greater but learned counsel's submission was that the police refused even to come to his assistance because the first respondent was very highly connected. Be this as it may, we would only observe that as the petitioner apprehended harassm ent by the police, he applied for bail before arrest in the Sessions Court, Karachi. Interim bail was given in due course and thereafter the confirmation of this interim bail order came up for hearing before the learned Sessions Judge, Karachi, who allowed bail by his order dated 6-11-1978.

3. Bail was granted on several grounds. One was the long standing enmity between the parties, but the learned Sessions Judge also appears to have been somewhat special of the Police statement.

4. Another ground, for granting bail was, "the mashirnama of the scene of offence does not show any blood on the spot". Yet another ground for f ranting bail, according to learned counsel, was that the injury to the first respondent was not grievous. But the final medical report was not available to the learned Sessions Judge, when he granted bail.

5. Aggrieved by this order, the first respondent filed an application in the Sind High Court for the cancellation of the bail granted to the petitioner and strangely enough this application appears to have been filed on the very day the Sessions Judge had allowed bail. Nothing turns on this coincidence, but application was supported by the final medical report which is dated 29-10-1978.

6. We are not able to understand why this report was not produced in the Sessions Court, although it must have been available at the relevant time. In this background, Mr. Khalid Ishaq said that he opposed the production of the final medical report in the High Court and submitted on the basis of the law declared by this Court in Nazir v. Amir Din and another (1971 SCMR 637) that if the High Court was of the view that the final medical report was relevant it should remand the case to the Sessions Court. And learned counsel's grievance is that although he cited this Court's authority, the learned Judge did not follow it and largely on the basis of the final medical report set aside the order granting bail. Hence this petition for leave.

7. Learned counsel criticised the impugned order on the ground that the learned Judge in the High Court had totally ignored the long standing enmity between the parties although this plea was supported by documentary evidence. Secondly, according to learned counsel there had been gross and unexplained delay in lodging the F. I. R., therefore, the further sub--mission was that the learned Judge had rightly allowed bail, inter alia, on the ground that the mashirnama of the scene of offence does not show any blood on the spot". In view of the order we are passing, we would only observe that it cannot be said that the order of the High Court is not supported by any material whatsoever. Therefore, in the circumstances we would not interfere with it unless it was a perverse order. But having given anxious thought to this question, we do not think it can be said that the order is a perverse order.

8. Learned counsel then complained that the observations in the impugned order were very strong and were likely to prejudice the case of the petitions in the trial Court. There is force in this submission, but we would only observe that both the Courts should have refrained from expressing their views so strongly, and unfortunately for the petitioner the difference between such observations by the High Court and by the lower Court is that the lower Court would be bound by the observations of the High Court. Accordingly, for the guidance of Sessions Courts, we would observe that even though an order disposing of a bail application does not state that the observations in it are tentative, these observations must be presumed to be tentative and should not, therefore, influence the Sessions Court when they hear and decide a Sessions case. .

9. I would now turn to Mr. Khalid Ishaq's submission that the impugned order is in violation of the law declared by this Court in Nazir's case. In that case, it was observed:- "We are of the opinion that the Court which granted bail should first have been moved on the basis of the new grounds for the cancellation of such bail. It is only proper that the Court which is seized of a matter should first have an opportunity of considering whether its previous order should be cancelled or not."

10. These observations support to the hilt Mr. Khalid Ishaq's submission that the learned Judge should have referred the question of the cancellation of bail on the basis of the final medical report to the Sessions Court and as in disposing of the matter himself, he has disregarded the law declared by this Court, we observed that we would have to admit the petition. Mr. Zafar Mahmood, who appeared for the caveator thereupon stated that the petitioner had filed an application for bail in the Sessions Court which was to be heard in this week. As the Sessions Court already has seisin of the matter, the more convenient course would be to allow it to decide that application instead of admitting this petition.

11. However Mr. Khalid Ishaq had one more submission. This was that the petitioner was in any event entitled to bail, because of the arrears of litigation in the Sessions Court, the more so, as it was a case under section 307, P. P. C. As the matter is pending in the Sessions Court and as the Sessions Judge will be the best Judge of the possible delay in the hearing of the case, the petitioner should raise this plea in the Sessions Court.