' MUHAMMAD MOOSA K. LEGHARI, J.--- Having been involved in Crime No,220 of 2006 under section 302/324/34, P.P.C. Registered at Police Station Sachal Gulshan Town Karachi, the applicant moved an application for pre-arrest bail before the Sessions Judge, Malir. It appears that the applicant inter alia took the plea that on the date of occurrence he was not available at the place of incident but was under treatment at some hospital. In order to support his plea of alibi, the applicant filed medical certificates issued by his treating doctors along with the bail application.
2. It seems that during the pendency of bail application before learned IIIrd Additional Sessions Judge, Malir Karachi a miscellaneous application was moved on behalf of complainant for calling two doctors namely Doctor Nasim Aun Jafri Chest Specialist R.H.C. Manghopir, Karachi and Doctor Shoukat Ali Neurologist JPMC, Karachi by whom the applicant/accused claimed to have been medically treated. Ms. Naheed Iqbal IIIrd Additional Sessions Judge, Malir, Karachi on the basis of no objection extended by Advocate for accused granted the application vide order, dated 21-6- 2006. Accordingly two doctors were summoned to appear in Court along with relevant record.
Consequently Doctor Shoukat Ali was examined on 10-8-2006.
3. Subsequently the Advocate for complainant moved an application dated 12-8-2006 for recalling the earlier order, praying therein that the other doctor namely Doctor Nasim Aun Jafri should not be examined as he was shown as prosecution witness and his examination at bail stage will prejudice the case. Said Application was opposed by the accused/applicant. However, vide order, dated 24- 8-2006 the application moved on behalf of complainant was allowed. Through this application the applicant/accused has called in question the legality and propriety of such order.
4. In support of this application it is contended on behalf of the applicant that the trial Court acted illegally and improperly while recalling its earlier order as review was not permissible in criminal proceedings, more particularly when the order was passed by consent of the parties and that too on the application submitted by complainant side. It is further contended that under the provision of section 540, Cr.P.C., trial Court was vested with the power to summon any person as witness or recall and re-examine any such person if his evidence appears to be essential to just decision of the case. Accordingly it was argued that examining the other doctor was not only lawful but essential, yet the trial Court acted illegally by declining to examine such material witnesses.
' Learned counsel placed reliance on Painda Gul and another v. The State and another 1987 SCM R 886; Mst. Baboo Jana v. The State 1990 PCr.LJ 326 and Asif Ali Zardari v. The State NLR 1999 Criminal 358.
5. Learned counsel for the State contended that for deciding bail application tentative assessment of evidence was sufficient. He argued that the trial Court ,by examining witnesses at bail stage committed an illegality as it amounted to deeper appreciation of evidence, which was not permissible.
6. Learned Advocate for complainant supported the impugned order by contending that since the doctor namely Nasim Aun Jafri was shown as prosecution witness, his examination was bound to prejudice the case.
7. The contentions put forward on behalf of respective parties have been considered, the material placed on record has been scrutinized and the relevant ease-law has been examined.
8. In the present case the applicant has moved an application for grant of pre-arrest bail wherein he set up the plea of alibi, pleading that on the day of occurrence he was being medically treated at two different hospitals and thus could not be present at the scene of offence. In support of his contention he appears to have filed certain documents relating to his treatment. Trial Court allowed the application moved by the complainant by passing the following orders:-- "Order 21-6-2006 ' Heard learned counsel for complainant, learned Advocate for accused, learned D.D.A. For the State and perused the record, during the arguments learned counsel for the other side given their oral no objection if the application in hand is granted. Therefore, in view of no objection given by the learned counsel for the other side, the application in hand is'hereby allowed. Let the letter/summon be issued to doctor namely Syed Nasim Aun Jafri, Chest Specialist R.H.C. Government of Sindh Manghopir, Karachi and doctor Shaukat Ali, Incharge of Neurologist Department Jinnah Postgraduate Medical Centre to appear before this Court along with all relevant records on 1-7- 2006 at about 8-00 a.m.
' Announced in open Court. This 21st day of June, 2006.
' (Sd.) 21-6-2006 (Ms. Naheed Iqbal), ' III Additional Sessions Judge, Malir, Karachi.
9. The bare perusal of the order would manifestly clarify that the same is bereft of any reasoning, and is a non-speaking and infirm order. Apparently it was passed in a most casual, mechanical, cursory and imprudent manner without application of mind. Obviously such order was passed neither under the command of law, nor in the interest of justice, but merely because the Advocate for the accused extended no objection. As evidently apparent, no assistance was deemed necessary to be sought from the Prosecutor.
10. Plea raised by learned counsel for the applicant, with regard to consent of the parties is grossly misconceived and devoid of force.
It is well-settled that jurisdiction cannot be conferred by consent or acquiescence of the parties, as it is conferred either by the Constitution or law. Reference can be made to case of Moulvi Aziz-ur- Rehman v. Ahmed Khan and others reported in 2004 SCM R 1622.
11. It is an irrefutable time tested principle of law that the orders passed on bail applications are tentative in nature, and deserve a tentative assessment of evidence proposed to be produced by the prosecution and plea raised by the defence.
' In the case of Farid v. Ghulam Hussain and others reported in 1969 SCMR 924; it was held that "the Court is not called upon at the stage of bail to conduct anything in the nature of preliminary trial to consider the probability of an accused guilt or innocence, though it is necessary to ascertain as to whether there exists any reasonable ground upon which its belief can be founded that he had been guilty of such an offence".
' In Muhammad Aslam v. The State reported in PLD 1967 SC 539, it was held that "in dealing with an application under sections 497 and 498, Cr.P.C. The High Court is not required to enquire into the merits of the prosecution case or the plea of defence for arriving at the conclusion whether the accused has been guilty of an offence punishable with death or transportation for life".
' In case of Khalid Javed Gillan v. The State PLD 1978 SC 256 it was held that for consideration of bail plea as contemplated under section 497, Cr.P.C. Tentative assessment can be made of material or evidence produced which is different from elaborate sifting of evidence which is to be done by the trial Court at the proper stage.
' In Said Akbar and another v. Gul Akbar and another reported in 1996 SCM R 931 it was observed as under:-- "It is true that in such cases when bail is sought on the basis of a particular plea, the Court considering the bail plea has to make tentative assessment of evidence proposed to be produced by the prosecution and all material available on the record including material in support of defence plea, which is to be placed in juxtaposition with material in support of prosecution case to arrive at conclusion whether bail should be granted or not."
12. It will thus, be noted that deciding an application for bail does not call for elaborate sifting of evidence. Indeed for the purpose of tentative assessment of evidence in order to satisfy itself about the correctness of the documents produced by the applicant, the trial Court could have summoned and perused the relevant record, if it was expedient in the circumstances of the case.
But the trial Court went head and proceeded to examine the doctor who was said to have treated e applicant. The impropriety did not stop there, but the doctor was offered to be cross-examined by the Advocate for the applicant/accused and the complainant. Certainly the exercise was something in excess of tentative assessment of evidence, and beyond the contemplation of section 497, Cr.P.C.
13. The arguments advanced by learned counsel for the applicant to the effect that under the provision of section 540, Cr.P.C. The Court has power to summon material witnesses also appear to be equally misconceived. Certainly the trial Court possesses the power of recalling and re- examining the witnesses and recording additional evidence if it appears to the Court essential for the just decision of the case. But such power is meant to be exercised for deciding a case, and could not be exercised at bail stage for the simple reason that a bail application could not be equated with a criminal case, and an order passed on bail application would not be a decision or judgment as contemplated under section 369 of Cr.P.C. As held by the apex Court in Gulzar.
Hussain Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335 and followed in the case of Amiruddin v. The State and another reported in PLD 1977 SC 602.
14. Reverting back to the case in hand, it would be seen that when the Advocate for complainant retraced his steps and filed an application for recalling the earlier order, trial Court proceeded to review its own order by allowing the application of the complainant. By that way the trial Court committed multiple illegality and flagrantly violated the basic principles for deciding bail applications. It allowed itself to be misled by the parties, and instead of acting in accordance with law, the Court concerned acted according to the whims of the prosecution and defence.
15. Yet another dismaying fact in the episode is that role of prosecutor in the entire proceedings appeared to have been diminished, and was conspicuously invisible. As provided under section 493, Cr.P.C. It is the Public Prosecutor who has to appear and plead in all the Courts. The law provides that if any private person instructs, a pleader to prosecute in any Court on his behalf, even' then the Public Prosecutor shall conduct the prosecution and privately engaged pleader shall art in the Court under his direction. It appears that orders on both the applications were passed by the trial Court without seeking meaningful assistance of Public Prosecutor which resulted in passing of two consecutive uncalled for, improper, perverse and illegal orders, which resulted in unreanable prolongation of bail application and caused multiplicity of litigation.
16. As a result of the above discussion order, dated 21-6-2006 and subsequent order, dated 24-8- 2006 passed in Bail Application No,270 of 2006 are set aside.
17. In view of the given circumstance, the bail application in question shall immediately stand transferred to Sessions Judge, Malir, Karachi who shall decide the same expeditiously in accordance with law.
' Let a copy of this order be sent to Ms. Naheed Iqbal III Additional Sessions Judge Malir, Karachi with an advice to be careful and cautious.