Ali Nawaz Chowhan, J.--Petitioners eight in number namely, Anwar, Akbar, Ghulam Ali, Sajid Ali, Tanvir, Muhammad Ali, Liaqat Ali and Nadeem Anwar are asking for their bail after arrest in case FIR No, 226 dated 2.6.2005 registered under Sections 1.0(4)/11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 read with Section 337-H(ii)/337L(ii)/148/149 PPC and Section 7 of the Anti-Terrorism Act at Police Station Chiniot District Jhang.
2. This case is pending before the learned Judge Special Court Anti-Terrorism Faisalabad (Mr. Muhammad Yousaf Ojla). The complainant in this case is Inayat Ali (PW-7) who gave out the story as stated by him in the FIR when his testimony was recorded on 27.9.2005 by stating as under:-- "On the night between 30/31.5.2005. I alongwith my family members, Muhammad Nawaz, my brother-in-law. Azhar s/o Shera and Noor s/o Shera were sleeping at our Havaili in the compound.
The Havaili has a fore-wall but no door. At about 12.00 mid night some unknown persons who had muffled their faces arrived at my house on the mares and forcibly kidnapped my daughter Mst.
Fauzia an proceeded towards the bed of the river. On resistance my brother Muhammad Nawaz was injured by the unknown persons. They while leaving the place of occurrence also made aerial firing. I and other family members besides Muhammad Nawaz, Azhar and Noor being terrified remained silent. On 2.6.2005. I proceeded to the Police Station Saddar where I informed them about the incident. The police of PS Saddar Chiniot procured my thumb impression on a blank paper and registered this case. Similarly I had not submitted any application on 9.6.2005. At this stage the learned Public Prosecutor for the State requests that the witness is suppressing the truth, he may be declared hostile and he be allowed to cross-examine this witness. The request of the learned Public Prosecutor for the state seems to be genuine and the same is accordingly allowed."
During his cross-examination he stated as under:-- "It is correct that the application Ex. PN bears my thumb impression. Volunteer that the same was procured by he police while it was blank. It is incorrect to suggest that on the fateful night Anwar, Akbar, Ghulam Ali and Sajid accused persons present in the Court and 5/6 other unknown persons while armed with fire-arms had entered into my house. Volunteer that Anwar, Akbar, Ghulam Ali and Sajid accused persons were not involved in the abduction of my daughter. It is incorrect to suggest that the afore-mentioned Anwar etc. had forcibly abducted my daughter Mg. Fozia on gun point and taken her with them toward the river bed. It is incorrect to suggest that my brother Muhammad Nawaz PW was injured by the aforementioned unknown persons. It is incorrect that the accused persons have also made aerial firing. It is incorrect to suggest that I have submitted application Ex. PO to the SHO PS Saddar Chiniot on 9.6.2005, hence further stated that as a matter of fact the local police had procured my thumb impression on various papers and the application dated 9.6.2005 might be one of them. It is incorrect to suggest that on 21.7.2005 I had joined the police investigation and Mumtaz accused got recovered Corolla Car which was standing front of his house. It is incorrect to suggest that recovery memo Ex. PR was proved in my presence and I thumb marked the same. It is incorrect and I have affected a compromise with the accused persons as a result thereof I have deposed falsely."
3. Mst. Fozia the alleged abductee (PW-8) while supporting the prosecution story during her examination-in-chief as stated by her father as PW-7 during her cross examination stated as under:-- "It is incorrect to suggest that Anwar, Akbar, Ghulam Ali, Sajid and Tanveer accused alongwith unknown 5/6 persons while armed with fire-arms had abducted me on gun point on the night of 30/31.5.2005. It is incorrect that on resistance by us, they had caused injury to my maternal uncle Muhammad Nawaz PW. It is incorrect to suggest that the aforementioned accused persons made me to broad a car which was standing nearby a Dera and then look to me to unknown Dera toward the river bed. It is incorrect to suggest that at the Dera I was subjected to rape by Anwar, Muhammad Ali, Liaqat Sap and Akbar accused persons on the first night of my abduction. It is incorrect that on the next morning I was kept confined in the maize crops while tied with a cot where Liaqat accused remained watching me. It is incorrect to suggest that on the next night I was again taken inside the dera where I was again subjected to rape by the aforementioned persons. It is incorrect to suggest that the accused took wine, played blue prints on the VCR and also put forcibly wine into my mouth. It is incorrect to suggest that after removing my clothes, I was directed by the accused persons to perform dance and on my refusal I was mal-treated. It is incorrect that on the next morning I was again taken in the maize crop where Nadeem and Tanveer accused had committed zina with me. It is incorrect to suggest that the accused persons removed my clothes and pushed me in the water tank. It is incorrect to suggest that the accused persons have been asking me about the amount collected by my father after the sale of wheat crops. It is incorrect to suggest that Akbar accused had brought a car and then the accused persons took in the house of Gama Muslim Sheikh from where I was recovered by the police. It is incorrect to suggest that my father has effected a compromise with the accused persons and under his direction I have deposed falsely in order to suppress the truth. The accused persons present in the Court today are not the same who had abducted me and subjected to rape."
4. After recording the statements of the above two main witnesses in the case they were recalled by the trial Court while exercising the jurisdiction under Section 540 Cr.P.C. The order reads as follows:-- "The complainant of the case Inayat Ali states that he and his daughter namely Mst. Fozia appeared in the Court as witnesses on 27.9.2005 but after making the statements in this Court, he, his daughter and other family members have been extended threats by the accused persons on their behalf and Mst. Aamina Bibi wife of Muhammad Akbar accused Mst. Fateh Bibi wife of accused Muhammad Anwar and nephew of accused, Muhammad Anwar and their other family members extended threats that at the release of the accused persons, the complainant party shall be done to death.
In view of the circumstances, according to Section 540 Cr.P.C. as it is deemed proper and fit to summon the complainant (who is present in the Court) and the victim Mst. Fouzia, Muhammad Sharif SI/I.O. present in Court is directed to produce her today. The file be put up later on at 11.00 a.m."
And subsequently the statements of both the aforementioned witnesses were re-recorded on the basis of this Order on 5.10.2005 when they resiled from what they had stated during the cross- examination on the previous occasion.
5. The question that arises is as to what prompted the learned trial Court to proceed under Section 540 Cr.P.C. It is clear that the complainant side was only stating that after the recording of their statements on 27.9.2005 they were threatened and not that they had been threatened to record a statement favourable to the accused side at the time while they were deposing before the trial Court or even before they had made their depositions on 27.9.2005.
6. The learned A.A.G. stated that the learned trial Court was well within its power to re-examine and re-summon the witnesses whenever it has feelings that re-recording is essential. We respectfully disagree with this contention. Section 540 Cr.P.C. does not give absolute power to call any body or any person and there should be reasons. The reasons recorded by the learned trial Court did not justify the re-summoning of the complainant and Mst. Fozia.
7. Incidentally it may be mentioned that the learned trial Court had himself recorded the statements on 27.9.2005 and not any other Court. Therefore, what happened is that a procedure has been abused by the trial Court. We also find that--the alleged abductee being pliable person made a different statement now whose testimonies are to be taken with caution and care. But as to what is the legal effect of the later statement, this can be gone into by the trial Court after full debate and we do not wish to go into that question at this stage.
8. But in view of the statements and the conduct of these two witnesses we feel that it is a case of further inquiry and we enlarge the petitioners on bail provided they furnish bail bonds in the sum of Rs, 50,000/- each with two respectable sureties in the like amount each to the satisfaction of the trial Court.
9. We disapprove what the learned trial Court has done, therefore on the administrative side a copy of this order be immediately sent to the learned Member Inspection Team of this Court for purposes of probe. Any E way we find that it will be appropriate that the case is heard by another Court other than the trial Court for which the learned counsel for the petitioners may move an application if he so chooses. This petition stands disposed of.