The respondents Ayub and Hajjan have been granted bail by Ist Assistant Sessions Judge, Larkana by an order, dated 6-3-1985 in a case pending under sections 302/34 and 114, P.P.C. And 13-D of Arms Ordinance. On scrutiny the matter was processed on judicial side and registered as suo motu reference bearing No. Criminal Miscellaneous Revision 39 of 1985. The notice was issued to the respondents to show cause why their bail should not be cancelled.
2. Brief facts are that on 4-12-1983 at 18.30 Mst. Zainab came at Police Station Ratodero and stated that at about 5.00 p.m. Her son Nazir Hussain after meeting her left for his house and immediately after that she heard challenge from the street near the mosque. She came out and saw Hajjan, Ayub and Moula Dino. At the instigation of Moula Dino, Hajjan and Ayub fired at Nazir Hussain who ran towards the house of Nooruddin and Inayat. They also saw the accused firing at Nazir Hussain.
The motive as given in F.I.R. Is enmity between the parties over matrimonial matters.
3. On 25-1-1984, bail application was filed and respondents were granted bail on 6-3-1984, on the ground that two eye-witnesses, namely Nooruddin and Inayat sworn affidavits in which they exonerated the respondents. The learned Additional Sessions Judge while granting bail relied on the case of Syed Ali Raza and others v. The State reported in 1981 P Cr. L J 1080.
4. Mr. Moazim Baig, Advocate, appearing for the respondents submitted that two eye-witnesses in their affidavits did not implicate the respondents and they have rightly been granted bail. He has cited cases reported in PLD 1976 SC 256 and 1979 SCMR 30.
Mr. Abdul Ghafoor Mangi, the learned Assistant Advocate-General contended that both the eye- witnesses during investigation supported the case and it is very clear that accused have tampered with the evidence and are not entitled to bail. He further argued that the affidavits should not be considered while granting bail. He has referred to the case reported in PLD 1984 Kar. 223.
5. The incident in the case took place during daylight and it is specifically mentioned in the F.I.R.
Lodged by Mst. Zainab, complainant who is eye-witness that both the respondents fired at her son and duel to gun-shot injuries he died. The evidence has not yet been recorded. In the memo. Of bail application filed in the Court of Sessions, in para. 4 it is stated that 164, Cr.P.C. Statements of both eye-witnesses who sworn affidavits were recorded during the investigation. The learned Additional Sessions Judge while granting bail has not taken into consideration this aspect of the case. The witnesses were called by the learned Additional Sessions Judge, while considering bail application and made enquiries from them from which it appears that case was not on his file and this practice of making preliminary inquiry is not required at the bail stage and it is to be discouraged as it would definitely prejudice the case of prosecution when evidence is yet to be recorded by the trial Judge. I had clearly taken view in cases reported in 1984 P Cr. L J 2161 and 2677 that the Sessions Judge cannot transfer bail application to the Additional Sessions Judge, when case is not on his file or he due to circumstances cannot dispose of bail application. In spite of that I have observed that applications for bail are being transferred, I take serious note of it. Now I proceed to discus the case-law cited by the learned counsel for the respondents. In the case of Khalid Jawed v. State reported in PLD 1978 SC 256 it has been observed that at bail stage only tentative assessm ent is to be made and in case of Allah Bux v. Nazar reported in 1977 SCMR 137, the bail was granted by the Supreme Court, when affidavits of all alleged eye-witnesses were filed.
In these circumstances the contention of the learned counsel appearing for the respondents that is to be bail granted on the basis of the affidavits cannot be sustained. The facts of both cases are not applicable to the present case. Supreme Court in a case reported in 1983 SCMR 15 held that when affidavit of complainant is missing, the accused is not entitled to bail. I also refer to a case Allah Ditto and another v. The State reported in PLD 1984 Kar. 223 where it has been held that affidavits would normally be of no value unless there are very strong circumstances to indicate that police investigation was dishonest. It has also been observed that tendency in Sessions Courts is to take notice and rely on ex parte affidavits of prosecution witnesses stating that accused were not guilty. This practice has been disapproved in the above reported case. The complainant who is an eye-witness of the incident is yet to be examined. The 164, Cr. P.C. Statements of the witnesses who sworn affidavits recorded by the Magistrate, during the investigation. The witnesses seems to have resiled from their previous statements, therefore, this is a clear case of tampering. In my view the respondents are not entitled to bail. The bail granted to respondents Hajjan and Ayub is cancelled. They shall be remanded to custody.