MUZAFFAR ALI, J.---This bail application before me assails the bail cancellation order dated 7-6- 2014, passed by learned Additional Sessions Judge District Ghizar, whereby the learned Judge has cancelled the concession of bail granted to the petitioners/accused by the Judicial Magistrate of the area vide order dated 27-1-2010. The cancellation Order of the learned Additional Sessions Judge is purely based on technical grounds as in his opinion the Judicial Magistrate has granted the bail in none compliance of requirements of law as to notice to the complainant party and in attendance of unauthorized P.I.
Apart from the above technical points, two more technical points came into discussion before me during course of arguments. 1st:-Whether the learned Judicial Magistrate was competent to grant bail to the accused who are charged for murder case exclusively triable by the Court of Sessions.
2nd:- Whether the learned Judicial Magistrate has erred in law by taking cognizance of bail matter despite he has recorded confessional statements of some witnesses under section 164, Cr.P.C. In the case. The learned counsel for the parties and learned Advocate-General for the State tried their best to get benefit of the above technical points with the help of case law pro and contra, but 1st brief facts of the case as under:-- The accused/present petitioners along with some other persons were charged for murder and attempt to murder vide F.I.R. No. 40 of 2009 lodged at Police Station Single in Ghizer District. The learned Judicial Magistrate send the petitioners to the Judicial lockup after recording of confessional statements of some witnesses under section 164, Cr.P.C. In the case. Later the learned Judicial Magistrate was moved for concession of bail by the present petitioners and the learned Magistrate granted the bail to the petitioners touching the merits of the case tentatively and declaring the case to be of further inquiry. The complainant party along with the State challenged the grant of bail before the Court of learned Additional Sessions Judge Ghizer who cancelled the bail of the petitioners on points supra, hence this application.
Since the learned Additional Sessions Judge has cancelled the bail of the present petitioners merely on technical points as such I without going to discuss the merits of the case give my findings on the technical points held by the learned Additional Sessions Judge and raised before me one by one as under:--
1. Competency of the Judicial Magistrate to deal the bail matter in the case:-on the point the learned Deputy Advocate-General urged with help of case law that the accused are charged for murder case which is exclusively triable by the Court of Sessions as such the Judicial Magistrate was not competent to grant bail to the petitioners. He relied on various case-laws, but in my opinion the under stated rulings are relevant to discuss.
1. 1998 MLD 1958. (2). 1998 MLD Lah. Page-1985. In both the cases, the learned Judges of Lahore High Court have held that, the Judicial Magistrates are not competent to grant bail in cases exclusively triable by the Court of Session and both the learned Judges of the High Courts have construed the word "Court" in the section 497, Cr.P.C. As trial Court. The learned counsel for the petitioners also referred case law to rebut the contention, but none of the ruling was on the point of bail which amounts to Judicial functions of a Court. The rulings were in respect of discharge of accused by the Magistrate, the powers have been held by the Higher Judiciary to be executive powers of a Magistrate he exercises as persona designate. Since the point is having a legal importance as such, I myself went into study the issue and reached to the conclusion with the help of law laid down by the august Supreme Court of Pakistan in the case titled "Allied Bank of Pak. Ltd. v. Khalid Farooq" SCMR 1991 Page 599 where in their lordship have defined the word "Court" in section 497, Cr.P.C. As that:-- The words "a Court" in section 497 of the Code do not mean a trial Court. If the intention had been to restrict the section to the trial Court, the words "trial Court" would have been used. It is only because of the words "a Court" that the Duty Judge or Magistrate grants bail of an accused, even though he is not the trial Court, when the accused is produced before him for remand.
The above interpretation of the, word "Court" in section 497, Cr.P.C. By the august Supreme Court has strengthened me to dare to hold a contradictory view from the learned Judges of High Court as that, the area Judicial Magistrate is competent to hear a bail matter and to decide if moved even the case is exclusively triable by the Court of Session upto the time the matter is committed to the trial Court and the trial Court seized of proceedings, but the Judicial Magistrates are to exercise this discretionary power with full Judicial diligence and concisely incases of heinous nature like murder case.
2. Whether the Judicial. Magistrate was to avoid to exercise his discretionary jurisdiction to decide the issue of bail as he had recorded the confessional statements of some witnesses in the case in hand:- on the point, I am in consonance with the view of my learned brother Judge of Peshawar High Court reported in PLD 1957 (W.P) Pesh. Page 128, whereby the learned Judge has quashed the trial proceedings by the Magistrate who had recorded confessional statement in the cited case even he had jurisdiction to try the case otherwise, hence I draw inference from the case supra that, after recording of confessional statement in any case the Magistrate becomes interested within the definition of section 556, Cr.P.C. And he becomes liable to be called as witness in the case as such the Magistrate should neither to try the case nor to enter into the merits of the case tentatively to decide the bail matters in the case, hence the order dated 27-01-2010, passed by the learned Magistrate in the case in hand is bad in law.
3. Whether the notice to the complainant party is mandatory:-On the point, there is no specific provision in Cr.P.C. But the learned Peshawar High Court has held as under in PCr.LJ 2004 Page 968 that, S. 497.... Penal Code (XLV of 1860), Ss. 302 & 324... Bail, grant of .... Murder and hurt... Notice to aggrieved/complainant party... Scope... Notice in such cases at bail stage must be given to aggrieved/complainant party. [p. 968] A The learned brother Judge has held the notice to the complainant party to be a settled proposition of law, while nothing has been brought before me to contradict the view as such I am in agreement with the view of learned Additional Sessions Judge that, the Magistrate was to issue notice to the complainant party before dealing the bail matter.
Consequent upon the above discussion the cancellation order of the learned Additional Sessions Judge is maintained, however the merits of the case for the purposes of bail have not been discussed as such the accused may apply for concession of bail before competent Court of law, if so advised or desired. Application rejected. File.