1. This is an application for cancellation of bail which was granted to the three accused /respondents charged with offences under section 302 read with section 34, P.P. C.
2. The facts of the case briefly are that on 25-7-1984 the accused/ respondents are alleged to have committed murder of one Ali Nawaz and Mst. Mithan. The motive of the killing had undisputedly beer, an allegation of 'Kara Kari' relationship between the two deceased. These accused were challaned and their trial had not yet proceeded before the learned Sessions Judge when a bail application was moved before the learned Sessions Judge and the bail was refused. Two of the three accused namely, Abdul Rehman's and Jumma, then moved the High Court by filing application for bail in the Sukkur Registry of this Court and the bail application came to be heard by me on 23-9-1984. Reliance was placed on 1979 P Cr. L J 72 and 1975 P Cr. L J 362 in which bail was granted on the defence pleas of grave and sudden provocation. I examined those cases in detail in my order and finding close identity and resemblance and full applicability of the dictum lain down in those cases decided to follow them. Even now none of the counsels contests the proposition of law that if the element of grave and sudden provocation is established or can be read in the story, the bail should not be A refused to the accused. The difficulty has arisen when the plea of grave and sudden provocation raised by the accused is contested by the prosecution and the counsel for the applicant, who has applied for the cancellation of bail and in this order I will try to show how this plea of grave and sudden provocation entitling the accused for bail was tackled in the first order. I quote from my order, dated 23-9-1984 by which bail has been granted to the accused:- "I would not have allowed them bail on raising this issue unless evidence was recorded and grave and sudden provocation was actually proved but the learned counsel points out that the findings of the learned Judge in his order go to show that this position has been established from the evidence on record. He relies on the paragraph in the order of the learned Sessions Judge which runs as under:- "The accused are not entitled to bail even though, from the F.I.R. And investigation it appears that the offence was committed by the accused under grave and sudden provocation."
3. I then proceeded to examine the F I R and other material also and adding the following paragraph to my order:- "These findings do not stand alone. The learned counsel points to the statement of Mst. Janat particularly para. 2 which runs as under:- "That on 25-7-1984 at Phiphari, time I heard cries of 'murder 'murder' from the sugarcane cultivation which is above the height of man and went towards that side and found my brother Ali Awaz was murdered alongwith Mst. Mithan. Both of them were in naked position lying on the ground as dead."
4. Then I examined the F I R and made the following observations:- "Even in the F I R the words 'Kari and Karo have peen used."
5. After all this material was brought to my notice and after hearing the arguments of both the sides I granted bail to two accused. The last lines of my order were as follows:- "The outcome on basis of assessm ent of the evidence is that so long as the observations of the learned Sessions Judge that it was a case of grave and sudden provocation, hold the field the accused are entitled to bail. The applicants are granted bail on their furnishing surety in the sum of Rs.20,000 each and P.R, in the like sum to the satisfaction of the Sessions Judge, Sukkur "
6. By the present application the learned counsel wants me to recall and review this order on the ground that the tentative assessm ent of grave and sudden provocation in the order primarily based on the findings of the learned Judge in his order, dated 27-8-1984 was not correct, because the learned Sessions Judge had relied on the F I R and a careful reading of the F I R would show that the case would not fall in the exception of grave and sudden provocation'. Secondly Mr. Abdul Fateh Malik learned counsel for the applicant as well as Mr. Muhammad Ibrahim Memon relying on the 162 statements made by the witnesses have vehemently argued that the theory of grave and sudden provocation is belied by these statements. I am constrained to observe that even now these statements have not been filed on the record nor their extracts have been collected by any of the two learned counsels seeking cancellation of the bail of these accused. But assuming for the sake of argument that the prosecution has such material with them which would belie the theory of grave and sudden provocation, is it open for me to accept this additional evidence and brush aside the express and clear findings of the learned Sessions Judge to the effect that "from the F I R and investigation it appears that the offence vas committed by the accused under grave and sudden provocation". At the time when the application for bail was argued this material was not placed on the record nor was relied upon by the prosecution and though the application was opposed by the learned Addl. Advocate General at Sukkur, but the opposition was totally on different grounds. Now at this late stage if I reopen the whole matter and reassess and re-examine closely the 162 statements with the prosecution, I will have to make an observation that the earlier assessm ent in favour of' the I accused was based on misconception and not only condemn the Sessions Judge without taking his views in consideration but Will have to express an opinion that the defence of sudden and grave provocation has been wrongly read in favour of the accused by the learned Sessions Judge In my humble opinion this is bound to cause prejudice to the accused in their trial and the defence of grave and sudden provocation is likely to suffer a dent on account of the assessm ent of the material in this order. I know that any observation or any assessment of the evidence at this time of bail application is tentative and perhaps I may have taken a different view if all this material which the prosecution claim to possess was placed before me when the bail was granted to the accused and at that time the assessment would have remained a casual view of the case. But now not only the findings of the learned Judge in his order are to be dislodged but my own order passed is t be reviewed and the view taken in that order is to be substituted ford a different view. In such an effort some credence will have to b given to one piece of evidence against another piece of evidence. For instance an opinion is to be expressed whether the version of Mst. Jenat in her statement under section 162, Cr.P.C. Implicating the accused is correct or her affidavit made before the Sessions Court and swearing that "I heard cries of 'murder' 'murder' from the sugar-cane cultivation which was above the height of man and went towards that side and found my brother Ali Nawaz was murdered alongwith Mst. Mithan. Both of them were-in naked position lying on the ground as dead."
7. This application is, therefore, rejected. The Sessions Judge is to expedite the trial and after evidence has been recorded, the prosecution may move for cancellation of the bail if the circumstances and the situation warrants.