Friday, 19 February 2016

Conversion of Petition into Appeal

PLJ 1996 SC 1239
[Appellate Jurisdiction]
Present: FAZAL ILAHI KHAN, ZIA MAHMOOD MIRZA AND RAJA AFRASIAB
KHAN, JJ.
SAJJAD AHMAD alias NONA-Peittioner
Versus
STATE-Respondent
Crl. Petition No. 138-L of 1996 accepted on 14.4.1994
[On appeal from the judgment dated 12.3.96 of the Lahore High Court,
Lahore, in Cr. Misc. No. 803-B/1996)
Bail-
—S. 497. Cr. P.C.-Bail-Grant of--Prayer for-Offence u/s. 302/34 PPC--Contention that it was not an application for review of previous order of High Court, rather it was a fresh application for bail on fresh ground raised before Addl. Sessions Judge, apparently has got some force-­Supreme Court, therefore, convert petition into appeal and allow-Case is sent back to High Court for decision afresh after taking into considerationjudgment of Sessions Judge in light of medical report of Jail doctor-­ Appeal allowed.     [P. 1225] A
Malik Abdus Sattar Chughtai, ASC; S. Abdul Aasim Jaffri, AOR for Petitioner
Respondent not represented. Date of hearing: 14.4.1996
ORDER
Fazal Ilahi Khan, J.--In the report lodged by Muhammad Asghar Javed under section 302/34 PPC at Police Station Samanabad, Lahore, the accused/petitioner alongwith his co-accused was charged for the said offence.
2.    Petitioner's pre-arrest bail application was dismissed by th° learned Addl. Sessions Judge on 23.1.95. However, on re-investigation when the police found the petitioner innocent, on such fresh ground the petitioner moved an application for his post arrest bail, which was granted by the learned Addl. Sessions Judge, on 27.2.1995.
3.          The complainant, however, approached the learned Lahore High Court for cancellation of bail u/s 497(5) of the Cr. P.C. The learned High Court cancelled the bail vide order dated 25.4.1995 on merits. This order was not challenged and became final.
4.          The petitioner allegedly fell ill and on the basis of the medical certificate furnished by Jail Doctor on  21.1.96,  the  petitioner against approached the learned Sessions Judge for grant of bail. For the reasons given therein such plea was not accepted and the application was dismissed by order dated 22.1.1996. His application was also dismissed by the learned High Court on 12.3.1996 with the observation, without commenting upon the medical certificate issued by the Jail Doctor, that there was no good ground to review the previous order. Leave is prayed for against the said order.
5.          Learned counsel for the petitioner has placed on file the medical certificate dated 19.1.1996. Apparently the learned High Court considering the application as review application of his lordship's previous order, dismissed the same without commenting on the medical certificate/report. The contention of the learned counsel that it was not an application for review of the previous order of the learned High Court, rather it was a fresh application for bail on fresh ground raised before the learned Addl. Sessions Judge, apparently has got some force. We, therefore, convert this petition into appeal and allow the same. The case is sent back to the learned HighCourt for decision afresh after taking into consideration the judgment of the learned Addl. Sessions Judge in the light of the medical report of Jail Doctor.
K.K.F.                                                                               Appeal allowed.

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