The respondents, Falak Sher Ron of Bahadar and Nasar son of Nazar Muhammad were sent up by Police Station Bhawana, District Jhang for murder of their cousin Mst. Janat Bibi on 30th of May 1977, at peshiwela in Chak No. 194.
2. They applied for bail, which was dismissed by the Additional Sessions Judge, Jhang Mr. M. Z.
Babar on the 12th of December 1977. They applied again for bail on the 8th May 1978, which was allowed by Mr. Muhammad Aslam, Sessions Judge, Jhang vide his order dated the 21st June 1978.
Mr. M. Z. Babar, who had earlier dealt with the case is still posted in Jhang. With two Supreme Court cases Chaudhry Muhammad Khan v. Sanaullah and another (PLD 1971 SC 324) and Farid v.
Ghulam Hassan and others (1968 SCMR 924) dis--approving the repeated bail matters being dealt with by another Presiding Officer, it is not understandable in what circumstances the matter was not listed before Mr. M. Z. Babar, Additional Sessions Judge.
3. However, the learned Sessions Judge allowed bail on the ground that three witnesses named in the F. I. R., namely Daulat, Lal and Malik, made statements under section 164, Cr. P. C. Before a Magistrate Section 30, exonerating the accused, i.e. The respondents. Out of these three, Malik P. W.
Before the learned Sessions Judge had disowned his statement. The complainant is dead and Malik and Lal P. Ws. Are also witnesses to the recovery of sota at the instance of Falak Sher and gun, at the instance of Nasar. Both of whom are stated to have made statements under section 164, Cr.
P. C. Though Malik P. W. Had not owned it before the Sessions Judge.
4. I have heard the arguments advanced by learned counsel for the parties as well as for the State.
Learned counsel for the respondents has vehemently defended the bail order relying on Amir v. The State (PLD 1972 SC 277) and Parvez Ahmad and another v. The State (1973 P Cr. L J 283), where some witnesses had exonerated the accused before a Magistrate, Supreme Court had allowed bail. He submits further that bail should not be cancelled to satisfy the complainant, if it was otherwise in accordance with law and in this regard he relies on Nazar Muhammad v. The State and another (1977 P Cr. L J 277). Each of these cases, proceeds on its own facts. In the two earlier cases the witnesses have made statements during the enquiry proceedings before a Magistrate and in the latter case the prerequisite of the principle is that the impugned order is otherwise maintainable in law.
5. I have perused the record with the help of the learned counsel. I find the learned Sessions Judge, while allowing bail to the respondents has overlooked, very material aspects and incriminating circumstances against the respondents, which are detailed below :- "(a) That it is a day time occurrence in the heart of the village ;
(b) That the first information is promptly lodged in which both the accused are named ;
(c) That the first informant is the real uncle of the deceased, who had no motive to falsely substitute. It is true that the complainant has died, yet under the Evidence Act the F. I. R. Is admissible, it will be good evidence ;
(d) That only the two respondents were named in the F. I. R., one armed with danda and the other armed with gun and two types of injuries are found on the person of the deceased, which indicates that no substraction or addition has been made while naming the accused ;
(e) The motive alleged is that Mst. Janat Bibi was carrying an illicit liaison, the respondents who are the first cousins, are likely persons to feel offended.
(f) That out of the two, recovery witnesses Malik was disowning his statement and there was anyhow the evidence of the Investigating Officer t prove these recoveries. These witnesses have attested the recover memos and the Public Prosecutor had a right to solicit the truth in cross- examination, which opportunity was still there during the trial.
(g) All these incriminating circumstances have been overlooked by the learned lower Court while allowing bail and I am of the opinion that the learned Sessions Judge has fallen in error in exercising the discretion in favour of the respondents, which error should be corrected."
I cancel the bail of respondents. They be taken into custody and committe to judicial lock-up pending the trial.