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Criminal S.M. Revision Application No. 40 of 1985, decided on 1st October, 1985.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302/34‑‑Cancellation of bail‑‑Specific part attributed to accused of having caused hatchet injuries to deceased who was murdered by accused and his co‑accused in a large town during day time‑‑Accused granted bail by trial Court on ground that all witnesses including complainant had sworn affidavits exonerating accused of charge‑‑Suo motu notices issued to accused for cancellation of bail‑‑Evidence was yet to be recorded at time of granting of bail‑‑Possibility of substantial piece of evidence being on record not ruled out‑‑Lower Court not referring to evidence collected by prosecution during investigation‑‑Factual inquiry, held, was not to be conducted at bail stage‑‑Bail on basis of such affidavits, therefore, could not be granted‑‑Bail cancelled.

1981 P Cr. L J 80; P L D 1978 S C 256 and 1979 S C M R 137 distinguished.

P L D 1984 Kar. 223 rel.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302/34‑‑Co‑accused granted bail by Sessions Judge‑‑Sessions Judge transferring bail application of accused to Additional Sessions Judge who had not yet taken cognizance of case‑‑Additional Sessions Judge granting bail to accused‑‑Once bail application was decided on merits by one Judge, another application of co‑accused, held, must be placed before same Judge‑‑Sessions Judge, therefore could only transfer bail application to Additional Sessions Judge when case was transferred to such Additional Sessions Judge and he took cognizance.

P L D 1971 S C 327 rel.

Abdul Ghafoor Mangi, A.A.‑G. for the State.

G.M. Saleem for Respondent.

The case under sections 302 and 34, P.P.C. against the respondent Ghulam Qadir is pending in the Court of 1st Additional Sessions Judge, Larkana. He has been granted bail on the ground that the complainant and all the witnesses including Mashirs of recovery filed affidavit exonerating the accused of the charge.

Briefly stated, the facts of the prosecution case are that on 25‑8‑1983, Nasir Muhammad lodged report at Town Police Station, Larkana in which he stated that he alongwith deceased Imdad Hussain and Qaimuddin had gone to Larkana on motorcycle. When they reached in Mohallah Azim Shah, behind P.V. School there came motor rickshaw from which 4 persons namely Ghulam Shabbir, Ghulam Qadir and two unidentified persons with hatchets. He has further stated that accused gave hatchet blows to lmdad Hussain who died. One Wali Muhammad was informed about the incident. Respondent was granted bail by the Additional Sessions Judge, Larkana.

2. The matter was processed on judicial side and registered as sum motu reference bearing Criminal S. Miscellaneous Revision No. 40 of 1985. The notice was issued to respondent Ghulam Qadir to show cause why his bail should not be cancelled.

3. I have heard Mr. G.M. Saleem, appearing for the respondent and Mr. Abdul Ghafoor Mangi, A.A.‑G. for the State. The learned counsel for the respondent submitted that bail has rightly been granted as all the witnesses including complainant sworn affidavits. He has cited 1981 P Cr. L J 80; P L D 1978 S C 256; 1979 S C M R 137.

Mr. Abdul Ghafoor Mangi, the learned A.A.‑G. submitted that the learned 1^st Additional Sessions Judge has wrongly granted bail. When evidence is yet to be recorded. He relied on the case reported in P L D 1984 Kar. 223.

The murder of Imdad Hussain took place in Larkana Town, during the day time. The specific part has been attributed to respondent that he caused hatchet injuries to the deceased. The learned Ist Additional A Sessions Judge in his order stated that he was not inclined to place reliance on the facts unless he confirmed the facts from the deponents in the Court. He called all these witnesses in Court and made inquiries.) The facts of the case cited by the learned counsel for the respondent are distinguishable. The murder case appears to be on the file of the) learned Sessions Judge as co‑accused Shabbir and Haider, were granted bail by the learned Sessions Judge. In these circumstances, the learned Sessions Judge has erroneously transferred this application to the learned Additional Sessions Judge, who had not yet taken cognizance of the) case. Moreover, it is a settled law that once the bail application is1 g decided on merits by one Judge the another application of co‑accused must be placed before the same Judge. On this, I refer to a case reported in PLD 1971 S C 327. Moreover, it has been observed from' time to time that the Sessions Judge can only transfer the bail applications to the Additional Sessions Judge, when the case is transferred to him and he takes cognizance. On the point of affidavits, I refer to a case of Allah Ditto and another v. State, reported in P L D 1984 Kar. 223. The observations made in that order by the Chief Justice of this Court are as under:‑

" I have recently come across a growing tendency in the Sessions Courts to take notice of and rely on ex parte affidavits of prosecution witnesses, stating that the accused were not guilty and minimising the extent of their guilt. These affidavits are not sworn in the Courts, but before some Oath Commissioners, and the contents thereof are not evidence within the meaning of the Evidence Act. The deponent's averments are not tested by Courts and normally the Courts do not even compare the contents of earlier statements of these witnesses with the statements made in affidavits, and such affidavits would normally be of no value, unless there are very strong circumstances to indicate that the police investigation was dishonest, and the Investigating Officer has attributed the making of some allegations against the accused by a witness, who has, in fact, not made those allegations. Before such affidavits are considered and relied upon for the purpose of granting bail to persons accused of capital charges, or heinous offences, the Court should look round and find out which out of the two versions made by a particular witness is true, Even otherwise, it is established principle of law that, when a person speaks in two tones, a duty is cast upon the Court to determine in which tone he is speaking the truth It is only after such exercise is undertaken by the trial Court that the trial Court will be justified in acting on the ex parte affidavits of persons for the purpose of grant of bail. Instances also are not unknown when fake documents have been produced before the Court, and the complainants then create a hue and cry, stating that they have not made the affidavits at all, and such documents, as have been placed before the Court, are fake, or forged. To say the least, the evidence furnished by such affidavits at such initial stage of the case has to be looked upon, prima facie, with suspicion, and the Court should be slow to act on such affidavits, unless the Court is satisfied that interest of justice will be advanced by acting on the same for the reason that the contents of the affidavits are true and reliable and should be accepted in preference to the earlier statement of that person made during investigation."

The evidence is yet to be recorded in Court and may be that witnesses might have given 164 statement in presence of the accused which could be treated as substantial piece of evidence. The learned Additional Sessions Judge has even not referred to the evidence collected by the prosecution during the investigation. The factual enquiry is hardly conducted at the stage of bail. In my view that bail on the basis of affidavits has not been properly granted. The order of the learned Additional Sessions Judge, Larkana is set aside. The respondent Ghulam Qadir, be remanded to custody.

H.A.K. Bail cancelled.

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