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Criminal Bail Applications Nos, 45 of 1983, decided on19th December, 1983.

-- S. 497(5)-Bail - Cancellation of - High Court although not justified to bypass order of Sessions Judge and entertain applications for cancellation on new ground and proper course being to approach Sessions Judge but when point urged before High Court same as repeated in opposition to grant of bail -to co-accused who was refused bail by Sessions Judge, High Court, held, would consider such ground.

-- S. 4-Criminal Procedure Code (V of 1898), S. 497-Cognizance of offence-Deputy Commissioner deferring question of taking cognizance for a further date till completion of investigation-No interim challan or report by Investigation Officer available before Deputy Commissioner to give him an opportunity to apply his mind to facts of case and for that reason Tribunal also not constituted-Order of Deputy Commissioner, held, nothing but a mere assurance to aggrieved person that case would be considered in due course.

-- S. 4-Criminal Procedure Code (V of 1898), S. 497-Cognizance Bail-No cognizance having been taken as required under S. 4 of Ordinance, Courts, held, competent to deal with bail application and authorities under the Ordinance have no jurisdiction in that regard.-[Jurisdiction].

Khial Akbar v. The State P L D 1979 Quetta 96 and Mehr Gul's case P L D 1982 Quetta 103 rel.

--- Ss. 497(2) & 497(5)-Bail-Cancellation of-Whether statement 9f injured person worthy of credit yet to be assessed by - Court of Tribunal constituted for determination of guilt or otherwise of accused - Investigation in progress and case requiring further inquiry-Eye-witnesses not named by injured in first information report-Sessions Judge by granting bail to accused, held, exercised his discretion in accordance with law and application for cancella tion thereof without merit in circumstances.

-- S. 497 (5)-Bail-Other persons involved in offence with similar allegation as made against accused since released-Bail, held, cannot be refused to accused in circumstances.

Mir Hazar Khan Khoso for Petitioner.

Ehsan-ul-Haq for Respondent.

Tariq Mehmood for A.-G. for the State.

Date of hearing : 4th December, 1983.

This order would dispose of the Criminal Bail Applications Nos. 45, 52, 83 and 90 of 1983 as all the persons involved therein were apprehended for the commission of murderous assault alleged by one Kodha Pir Muhammad (now deceased) on him and arise out of the same facts and also involve the same law points.

2. The said Kodha Pir Muhammad was found injured, on 9th March, 1983 and was lying in the hospital at Turbat. An information to that effect was conveyed to Tehsildar Turbat who after making some inquiries from the injured person directed the registration of the case and the arrest of the culprits. An F.I.R. No. 58 of 1983 was registered by the Naib Tehsildar Turbat and during the investigation of the case, Qadir Bakhsh, Taj Muhammad, Karim Bakhsh, Hayatan Gajiyan, Hashim, Shanzak and Dad Muhammad and some other persons were arrested. The accused Shinzul son of Dosbambay, Hashim son of Behram respondents in Criminal Bail Application No. 45 of 1983, Dad Muhammad son of Gul Muhammad, respondent in Criminal Bail Application No. 52 of 1983 and Taj Muhammad son of Mayar in Criminal Bail Application No. 90 of 1983 have been released by the learned Additional Sessions Judge, Turbat. Against which the Applications Nos. 45, 52 and 90 of 1983 for the cancellation of bail have been moved while Qadir Bakhsh son of Ali Muhammad has been refused bail on whose behalf now an Application No. 83 of 1983 for the grant of bail has been moved in this Court.

3. The learned counsel appearing for the petitioner Gul Muhammad on whose behalf the three applications referred above for the cancellation of bail to the respondents/accused have been moved has urged before me that the cognizance of the offences has been taken by the Deputy Commissioner, Turbat on 10th April, 1993 under section 4 of the Criminal Law (Special Provisions) Ordinance (II of 1968) hence the learned Additional Sessions Judge Turbat had no jurisdiction to entertain the bail applications. From the perusal of the order of the learned Additional Sessions Judge it is apparent that no such ground was urged before him. I am, therefore, of the opinion that in view of the wordings of section 497(5), Cr. P. C. and the law laid down by the Supreme Court in Nazir v. Amin and others (1971 S C M R 637). I would not be justified to by pass the order of the Sessions Judge and entertain the applications for cancellation on new grounds. Proper course for the petitioner, therefore, was to approach the Sessions Judge for cancellation of bail but since the point has been urged before me and the same contention has been repeated in opposition to the grant of bail to accused Qadir Bakhsh, I would consider this ground. The order, dated 10th April, 1983 being pressed is reproduced below :--

(Sd.) Deputy Commissioner.

Turbat

From the bare reading of this order one can come to the conclusion that this order does not amount to taking of cognizance. There can be no two opinions that the learned Deputy Commissioner has deferred the question of taking of cognizance for a further date till the investigation is completed by the Investigating Officer. There was no interim challan or report by the Investigating Officer which could have given him an opportunity to apply his mind to the facts of the case and for that reason the Tribunal too has not been constituted so far. In the circumstances of the case the order passed by the learned Deputy Commissioner is nothing more than B an assurance to the aggrieved person that case would be considered in due course and for the completion it was referred to the Investigating Officer and the order passed is thus only a miscellaneous order. With due respect to Mr. Hazar Khan Khoso the learned counsel for the petitioner this contention which he has now raised before me is directly covered bar a. judgment reported in Khial Akbar v. The State (P L D 1979 Quetta 96), At page 103 of the report the view taken in Superintendent and Remembrancr of Legai Afairs, W. e. v. Abani Kumar (A I R 1950 Cal. 437) has been quoted with approval and it reads :-

"What is taking cognizance has not been defined in the Criminal P. C. and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under section 190 (1) (a), Criminal P. C. he must not only have applied his mind to the contents of the petition but he must have done so far the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this chapter, proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the Magistrate applies his mind not for the purposes of proceeding under the subsequent sections of this chapter, but for taking action of some other kind e.g. ordering investigation ...under section 156(3) or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offences."

And it has been held by the learned Judge that "camouflage of the taking of cognizance by the Assistant Commissioner would not be deemed to be taking of the legal cognizance."

The principle of law now stands settled as far as this Court is concerned. My Lord the Acting Chief Justice (Mr. Zakaullah Lodhi) delivering the judgment in Mehr Gul's case (P L D 1982 Quetta 103) has in unequivocal terms held that :-

"Taking of cognizance and being cognizant about a fact are not the same things. Since taking of cognizance under section 4 of the Ordinance means taking decision to order trial of the case by appointing members of the Tribunal, it must depend on something more than mere knowledge and the later can only be upon the examination of the material collected and placed by the investigating agency before him so that he could make up his mind to act in one way or the other."

His Lordship has further observed :-

"When the word cognizance' is to be construed with reference to the Ordinance, it would mean making of mind by the Deputy Commis sioner as to whether or not trial of a scheduled offence should take place. Such decision is possible only when sufficient material is available before the Deputy Commissioner so that by assessing it he could take a decision in such directions."

Admittedly in the instant case no challan (interim or complete) has been submitted to the Deputy Commissioner so far in spite of the fact that matter is under investigation since 9th March. 1983. In these circum. stances I am not prepared to agree that the cognizance as required under section 4 has been taken in this case, with the result that the ordinary Courts are competent to deal with the bail application and since the matter is not drawn properly in the system envisaged by Ordinance II of 1968, the authorities under the Ordinance have no jurisdiction deal with the matters. The contention of the learned counsel is, therefore, I repelled.

4. Now there remains to be noticed the evidence which is being pressed into service against the accused. I have perused myself the entire record and have found that there is no eye-witness in the matter. Gul Muhammad, Fateh Muhammad and Said Muhammad in spite of the fact that they are closely related to the injured have not said that they have (1) P L D 1992 Quetta 103 witnessed the incident themselves. Gul Muhammad in his statement has said that he was informed by another person namely Rasool Bakhsh son of Muhammad Hussain that Kodha Pir Muhammad was injured by a gun shot and has been removed to his. house. On the enquiry made by Gul Muhammad as to who had injured him he has replied :-

Similarly Fateh Muhammad and Said Muhammad also reached the spot when firing was over. Whatever has been said by these two persons also has been told to them by the injured as claimed by these witnesses. How for the statement of the injured person is worthy of credit is to be assessed by the Court or Tribunal constituted for the determination of guilt or otherwise of the accused persons. The investigation is still W progress, therefore, in view of the provisions contained in section 497 (21 this is a case of further inquiry and the accused are entitled to be releases on bail. The accused are in custody for more than 9 months and I am of the opinion that they cannot be detained as a punishment. There is yet another reason to exercise the discretion in favour of the accused and it is this that the so-called eye-witnesses namely Gul Muhammad, Fateh D Muhammad and Said Muhammad have not been named by the injured in the F. I. R. In such circumstances the discretion of the learned Sessions Judge in favour of the accused has been exercised in my opinion in accordance with law. The applications for cancellation of bail, therefore, have no merits and are dismissed. The respondents involved in applications Nos. 45, 52 and 90 of 1980 shall continue to remain enlarged on bail till such time any Court of competent jurisdiction decides to cancel their bail upon a proper applications made in that behalf.

6. As regards the application for the grant of bail moved on behalf of Qadir Bakhsh it cannot be refused because the other persons involved in the commission of offence especially Tai Muhammad against whom similar allegations as are made against Oadir Bakhsh has since been released. There is no valid reason to withhold the bail to Qadir Bakhsh. E The Application No. 83 of 1983 moved on behalf of Qadir Bakhsh is, therefore, accepted. . He shall be released on bail if he furnishes bail in the sum of Rs. 20,000 with two sureties in the sum of Rs. 10,000 each and P. R. in the like amount to the satisfaction of the Additional Sessions Judge, Turbat.

M. Y. H. Order accordingly,

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