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Criminal Miscellaneous No. 6328 of 1969, decided on 14th November 1969.

---Ss. 497(2), (S) & 498-Bail, cancellation of Murder case-Accused found innocent by police and placed in column 2 of Challan-Committing Magistrate releasing accused on bail and Sessions Judge refusing to cancel ball-Successor in office of Sessions Judge, however, cancelling bail although evidence on record not sufficient to show reasonable grounds for believing that accused were guilty of offence punishable with death or transportation for life-Held: Sessions Judge should riot have reviewed order of his predecessor without cogent reasons-Orders of cancellation of bail, in circumstances, set aside--Case, held, could be assumed to be covered by S. 497(2).

---Arts, 100 & 63-Pronounce ments of superior Courts of country-Binding upon subordinate Courts-Distinguishing rulings of superior Courts on flimsy grounds- Practice deprecated-Sessions Judge warned to be careful to avoid futile attempts to distinguish rulings of superior Courts on flimsy grounds.

Ghulam Sarwar Chaudhry for Petitioners.

Saeedul Hussan with Abdur Rashid, A. S. 1. for the State.

Aziz Ahmad Waraich for the Complainant.

This is a petition for bail under section 498 of the Code of Criminal Procedure.

2. The facts are these. A case under sections 302/3017/149 and 148, P. P. C., was registered at Police Station Miani, Tehsil Bhalwal, District Sargodha, on the 2nd of October 1968, against the petitioners and eight others at the instance of one Ghulam Rasul son of Inayat. After the usual investigation the petitioners were pronounced innocent by the police and were placed in column 2 of the final police report made by Sart'ra,r Khan, Inspector of Police, Bhalwal. On the 11th of April 1969, the committing Magistrate after examining the complainant summoned them as accused and released theca on bail on the 2hth of April 1969. The complainant made an application for the cancellation of their bail to the Sessions Judge, Sargodha. Mr. Muhammad Zafarullah, who after hearing the counsel for the parties on the 19th of May 1969, took the view that they were placed in column 2 and there was nothing unusual or illegal in the proceedings and that there was no ground for the cancellation of their bail. Another application was presented under section 497(5), Cr. P. C., before Mr. Ghulam Hussain, the present Sessions Judge, Sargodha, wherein in addition to the grounds taken B earlier, it was stated that two of the injured P. Ws. had inculpated the petitioners before the inquiry Magistrate. The learned Sessions Judge after hearing the counsel for the parties cancelled the bail.

3. Learned counsel for the petitioners contended: --

(i) that in the course of investigation the complainant and some of the eye-witnesses filed a written statement before the investigating officer stating therein that the petitioners, namely, Ghulam Muhammad, Dosa and Sardara were innocent in view of this evidence and the evidence of alibi placed them in column 2 of the police challan.

(ii) that the F. I. R. shows that no specific part has been attributed to the petitioners except that they were present at the spot,

(iii) that it is after the lapse of considerable time that the complainant and the witnesses are naming the petitioners as accused in this case,

(iv) that one of the petitioners, Ghulam Muhammad is old man of 70 years; and

(v) that the learned Sessions Judge was not justified to review the order of his predecessor who rejected the petition for cancellation of bail moved by the complainant.

4. It is not disputed before me by the learned counsel for the complainant and the State that the petitioners were found innocent by the police during the investigation and were placed in column 2 of the challan. Learned counsel for the State stated that in the curse of investigation a document was executed between the complainant and the accused wherein the complainant admitted that the petitioners were innocent. The statement of Ghulam Rasul P. W. was read out in Court, wherein he stated:

"I have seen document Exh. D. A., and it bears my thumb impression at Exh. n. A./I. It is incorrect to suggest that before Allah Yar, Muhammad Zahoor and Muhammad Akram I swore on the Holy Quran that Ghulam Muhammad son of Ata Muhammad,. Dosa and Sardara accused present in Court, were not present at the time of occurrence and were innocent in the present case. I did not attest any document with the knowledge of its being referring to the innocence of the above three persons."

Amir P. W. stated that he was not in a position to specify the assailants of Ali deceased. Likewise Manak P. W. did not allege that the petitioners were the assailants of Ali deceased. Roshan P. W. in his statement before the police stated that the petitioners were not present at the spot.

5. As a result of the investigation and the evidence that has come on the record so far, the learned Sessions lodge was wrong to assume that there appear to be reasonable grounds for believing that the petitioners are guilty of the offence punishable C with death or transportation for life.' The complainant who had been examined, had denied the execution 4 document Exh. D. A. Ex facie, it is too difficult to accept 'the assertion of Ghulam Rasul P. W. that he attested the document in question without ascertaining its contents. The execution (if Exh. D. A. is mentioned in detail in the police file. If Ghulam Rasul was not satisfied with the investigation he would have agitated the matter before the higher authorities. It was on the 11th of April 1969, i.e. after the lapse of about six months, that he re-asserted that the petitioners were the participants in the crime.

6. I do not wish to say any thing at this stage, as to the truthfulness or otherwise of the testimony of Ghulam Rasul, and particularly to the execution of Exh. D. A., as it might prejudice a party's case, but in the circumstances of the case, i.e. can be assumed that the case of the petitioners is covered by section 497 (2), Cr. P. C.

7. Learned counsel for the petitioners cited Ibrahim v. The State (1969 P Cr. L J 3) where in the similar circumstances, the learned Judge released the petitioners on bail. Interestingly enough, the learned Sessions Judge endeavoured to distinguish this judgment and Abdul Malik v. The State (P L D 1968 S C 349) though the facts in both these cases were similar as in the present case. It is incumbent upon the subordinate Courts to follow the pronouncements of the superior Courts of the country. Any to attempt by a subordinate Court to distinguish the rifling; on a flimsy ground must be deprecated. In the instant case, as stated earlier, the learned Sessions Judge made a futile endeavour to do so, He is warned to be careful in future. The t propriety also demands that he should not have reviewed the order of his predecessor without cogent reasons.

8. Considering all the circumstances of the case, I accept this petition and set aside the impugned order of the learned Sessions Judge, dated the 4th of October 1969. The petitioners are admitted to bail in the sum of Rs. 10,000 each with one surety each in the like amount to the satisfaction of the committing Magistrate pending the decision of the case against them.

Petition accepted Bail granted.

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