ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. B. A. 309 of 2008.
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Date Order with signature of Judge.
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For further orders:-
None for the applicant.
Mr. Muhammad Sarwar Khan, Addl. A.G.
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On 5.5.2008 applicant Inayatullah was granted bail by this Court for offence punishable under Section 6, 9(C) CNS Act 1997, FIR No.08/04 police station ANF Clifton Karachi.
Thereafter co-accused Syed Kazim Raza filed Cr. B. A. No.1073/08 which was heard by another Hon’ble Judge of this Court on 6.10.2008. Learned counsel for the applicant did not press the bail application and it was dismissed as not pressed.
The order dated 5.5.2008 passed in Cr. B. Appl. No.309 of 2008 seems to be a detailed order while that order was not relied in another bail application No.1073 o f2008. These both bail applications are arising out of the same FIR. While passing the order in Cr. B. Appl. No.1073 of 2008 the learned Judge of this Court has observed that bail granted to applicant Inayatullah in bail Application No.309 of 2008 may also be cancelled, therefore, a notice was ordered to be issued against applicant/accused Inayatullah and also notice was ordered to be issued to the learned Advocate General Sindh for his opinion in the matter. In compliance of order passed in Cr. Bail Application No.1073 of 2008 Show Cause Notice was issued to applicant/accused Inyatullah through trial Court and also notice was issued to the learned Advocate General Sindh.
On 17.12.2008 matter came up for further orders on that date except Mr. Miran Mohammad Shan, Addl. A.G none other was present and it was ordered as the notice for service on the applicant/accused was sent through Special Judge (CNS), according to the process server’s report applicant was not available. In such situation Non-boilable warrants were ordered to be issued against applicant/accused Inayatullah while the trial Court was also required to send a report about the status of the case of accused Inayatullah. On 2.2.2009 the matter again came up for further orders and on that date on behalf of Advocate General Sindh, Ms. Farkhunda Mangi, advocate appeared and she was directed to request the Advocate General Sindh to appear before the Court on 9.2.2009 and assist the Court whether the bail granted in other bail application can be cancelled on an order passed in another bail application. Again matter came four further orders on 9.2.2009 on that date Mr. Fazlur Rehman Awan, counsel for the state appeared and the matter was adjourned to 16.2.2009. However, the Advocate General office was put to notice that if no body appears before this Court on the next date of hearing, adverse action may be taken against A.G. office. On 16.2.2009 matter was discharged. On 20.3.2009 Mr. Muhammad Sarwar Khan, Addl. A.G, appeared.
Since the notice was issued to the leaned Advocate General for assistance on the point that the bail granted by this Court in another bail application can be cancelled by this Court in another bail application. On this point Mr. Muhammad Sarwar Khan, Addl. A.G, has argued at length. Learned Addl. Advocate General contended that under section 497(5) this Court is very much competent to cancel the bail granted by it. He also argued on the merits of the case and contented that in this case bail should not have been granted by the Court. At this stage I will not discuss the merits of the case. Only point which at this stage before me is whether this Court is competent to cancel the bail granted by it under sub-section (5) of Section 497 Cr.P.C which is reproduced as under:-
“Section 497(5):- A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody”.
Learned Additional Advocate General has placed his reliance on the case of AMIRUDDIN VS; THE STATE AND ANOTHER, reported in PLD 1977 SC 602:-
a. Ss. 496, 497(5) &498---Bail, cancellation of---High Court or Court of Session while taking action to grant bail does to under S. 496 or 497 read with S. 498 and does not draw its capacity from a soruce wholly distinct from S. 496 or 497---Powers conferred by subsection 95) of S. 497---Available to High Court or Court of Session when it grants bail in a case before a subordinate Court----High Court or Court of Session, held, empowered under provisions of subsection (5) of S. 497 to cancel bail earlier granted by itself under S. 498 read with 497---(Bail).
b. ---S. 369---Judgment, alteration or review of---Order allowing or canceling bail---Not a judgment within meaning of S. 369--- (judgment)
Another case of MUHAMMAD ISMAIL---VS---HIDAYATULLAH AND 2 OTHERS, reported in 1981 SCMR 35;-
a. ---S. 497(5) ---Bail, cancellation of---High Court empowered to examine question of cancellation of bail from various angles---Order canceling bail and later granting bail by same Court---Held, does not amount to review of earlier order. (Review).
b. ----S. 369 read with S. 497 (5)---High Court and Court of Session empowered not only to cancel bail granted by any other Court, but also bail granted by themselves---Section 369 even if made applicable to orders regarding grant of bail, same, held, would not apply to cancellation of bail, S. 369 saving matters otherwise provided by Criminal Procedure Code or any other law in force.
He further referred the case of MASOOD KHAN---THE STATE, reported in 1996 MLD 502, of Peshawar High Court in which it was held that criminal Court under Section 369 Cr.P.C, though can not review its judgment yet can review its order. Pronouncement made in bail matters is always an order and not a judgment and hence can be modified or amended.
In another case of SHAUKAT ALI—VS—ABDUL HASSAN alias NOOR HASSAN AND ANOTHER, reported in 1984 P.Cr.L.J 2086, Karachi, High Court of Sindh. In this case it was held that bail granted could be cancelled by the same Corut as cancellation would not amount to review of earlier order.
I have heard learned Additional Advocate General Mr. Muhammad Sarwar Khan, and have gone through the case law produced by him. In the light of the case law and reading to sub-section (5) of Section 497 Cr.P.C. I am clear in my mind that this Court is competent to cancel the bail granted by it earlier.
From perusal of the case file it appears that the NBWs issued against applicant/accused Inayatullah have not been served upon him. Let NBWs be repeated against him as ordered earlier and so also notice to his surety to appear before the Court and notice may also be issued to the Special Prosecutor, ANF, for a date to be fixed by the office.
Before finally parting with the above, I am indeed grateful to the invaluable assistance rendered by Mr. Muhammad Sarwar Khan, learned Addl. Advocate General. Order accordingly.
Karachi: J U D G E
Dated:___________
Muhammad Shahid Sami-ul-Haque,
P. A. to Mr. Justice Safdar Ali Bhutto,