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Criminal Miscellaneous No. 1180/B of 1983, decided on 13th June, 1983

---S. 164-Penal Code (XLV of 1860), S. 302/148/149/109-Statements of witnesses under S. 164, Cr. P. C. recorded by Magistrate at District J whereas occurrence taking place in area of district S-Held, in propriety and practice witnesses should have been directed to appear before their Illaqa Magistrate and it was irregular of Magistrate at J to have recorded statements of witnesses of case relating to District S.

---- S. 302/148/149/109 - Murder-Trial - Additional Sessions Judge requesting Sessions Judge to send case to him for disposal-Asking for a particular case by Additional Sessions Judge, held, not only departure from normal practice and procedure which has no sanction but also open to serious criticism and objections-High Court directed Sessions Judge to try case himself rather Additional Sessions Judge who requested for case.

-----S. 497(5)-Penal Code (XLV of 1860), S. 302/148/149/109-Bail Application for cancellation-Bail granted by Additional Sessions Judge on grounds that accused were declared innocent by Police but factually incorrect---Investigating agencies finding accused responsible for offence-Counsel appearing on behalf of State supporting application for cancellation of bail-Held, in case where there is serious doubt as to who appeared to make statement before Magistrate this per se would not make case for further inquiry-Accused attributed injuries to deceased and firing three shots injuring deceased-Bail cancelled.

Syed Ehsan Qadir Shah for Petitioner.

Ashiq Hussain for Respondents.

Sh. Ijaz All for the State.

Fateh Shah has come up for the cancellation of bail allowed to Muhammad Hassan and Mashkoor Hussain in the murder case pending against them and fourteen others, which was registered at Police Station, Sahiwal, District Sargodha. The respondents were allowed bail on the ground that the four eye-witnesses had exonerated them in their statements under section 164, Cr. P. C. and that they were found innocent by the Police. Petitioner's contention is that the alleged statements were not made by the eye-witnesses. In support of this submission, their affidavits have been filed. As to who appeared before the Magistrate for making the statements is a matter which cannot be gone into deeper at the bail stage. It will be for the trial Court to consider when evidence is led in the case.

2. The occurrence in this case took place because of another murder which took place earlier in District Jhang between the parties. It may be mentioned here that the statements of the witnesses recorded under section 164, Cr. P. C. are recorded by a Magistrate of Jhang, whereas, the occurrence in the instant case took place in the area of District Sargodha. In propriety and practice the Magistrate should have directed the witnesses to appear A before their Ilaqa Magistrate in District Sargodha because normally Magistrates of each District have been allocated work of their own Districts. It was however, irregular for the Magistrate of Jhang to have recorded the statement of witnesses of a case relating to Sargodha District.

3. Learned counsel for the petitioner also contended that Mr. Anwar Nasim, Additional Sessions Judge while disposing of the bail application of the respondents on 2-3-1983, observed that since on behalf of the petitioners, a request was made that the bail application will be withdrawn if the case is fixed for trial. It was thereafter that the Additional Sessions Judge requested the Sessions Judge to send the case to him for disposal and directed the accused's counsel to produce the other accused who were on bail on 7-3-1983 before him. Normally, a case is made over by the Sessions Judge to the Additional Sessions Judge for trial. It is not the practice that an Additional Sessions Judge should ask for a particular case to be sent to hire B for trial. Not only that this departure from the normal procedure and practice has no sanction, it is also open to serious criticism and objections. However, as the accused did not appear before the Additional Sessions Judge, the petition for bail remained pending. In the meanwhile, an application for cancellation of bail of the other accused was made, which is still pending before that Court. Later by his order dated 14-3-1983, the Additional Sessions Judge allowed bail to the two respondents for the reason that they were declared innocent by the police, which is factually incorrect. The fact is that all investigating agencies found only these two respondents responsible for the offence.

4. Mr. Ijaz Ali Sheikh, Advocate appearing on behalf of the State has supported the application for the cancellation of bail. In a case where there is serious doubt as to who appeared to make a statement before the Magistrate this per se would not make it a case of further inquiry. The respondents have been attributed injuries to the deceased. There are no less than 12 injuries to Qasim, whereas Mashkoor, respondent, allegedly fired three shots injuring the deceased. Under these circumstances, the bail allowed to the two respondents is cancelled with a direction that they shall be taken into custody by the District Authorities.

5. In view of the observations made by me that the Additional Sessions Judge departed from the normal practice by asking for the case on his file, I do not deem it fit that he should try the case. 1, therefore, direct that this case be tried by the Sessions Judge, Sargodha, himself who shall commence the trial in the 3rd week of July, 1983.

M. Y. H. Bail cancelled.

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