This application for cancellation of bail was filed in this Court on 31-1-1972 but it seems that it was not possible to serve the respondents and the case has not, therefore, yet been heard in this Court.
It came up before me on the 3rd of July 1972, when I ordered fresh notices to issue. These notices have since been issued and served and the learned Additional Sessions Judge has certified that the respondents have been duly served. The case of the prosecution is that the applicant, one Choudhry Mohammad Anwar, was required to appear on the 15th of July 1971, along with his brothers Latif and Ghulam Ali and his sons Muhammad Aslam and Muhammad Akram, as accused persons in the Court of Civil Judge 8c Ist Class Magistrate, Nawabshah and they did accordingly appear on that date at 8-30 a. m. But were directed to re-appear at 11 a.m. Accordingly they went away and came back to the Court a little before 11-00 a. m. And saw the jeep of one Abdul Majid Dahri at the corner of the Office of the Sub-Registrar which apparently is very near the Court and from this jeep six persons who were named in the F. I. R. That was subsequently lodged and which included the present two respondents, came out armed with guns. The gunshots were fired, one of them being by Raham Ali, which struck the applicant in this case and from amongst his party hi: brother Latif was also injured. Immediately adjoining the court room is the police station and from this police station soave police officers and constables came of whom one particularly is important, namely, Inspector Mahmood. A number of eye-witnesses are mentioned in the F. I. R.
Including this Inspector and it is the prosecution case that the Inspector named three persons, namely. Raham Ali whom I have mentioned and the two respondents before me, namely, Bahadur and Ikhtiar. An application for bail was, made before the learned Additional Sessions Judge who refused bail to Raham Ali but granted bail to the other two. It seems that the main point of distinction between the case of Raham Ali and the other two that appealed to the learned Judge was that in a statement made by Ch. Muhammad Anwar which has been described as a dying declara--tion, which of course is not one, since Choudhry Muhammad Anwar is still alive, Raham Ali's name was mentioned. It is the contention of the learned counsel before me that Ch. Muhammad Anwar did not make any such statement and that the dying decla--ration of Latif, who is fact has died, does implicate all the three persons. He relies upon the fact that the first statement is signed while the other is not but I do not think it is right that I should, at this stage, attempt to appraise the facts on which this contention is based or the veracity of the evidence. I think, I must at this stage, assume that the evidence that will be led will be such as is recorded in the police. This statement, admittedly on both sides, is one which does implicate all these three persons but the main reason for not giving credence to that evidence is stated to be the admitted hostility between the parties before. This might well furnish a proper ground for allowing them ball at this stage. It is to be appreciated, however, that there is available, the evidence of the police officer, whom I have mentioned, and it is no body's case that he can be described as being an associate of either party so as to make his evidence the evidence of a hostile witness. I do not think it was, therefore, right for the learned Judge at this stage to have drawn a distinction between the case of Raham Ali and the others upon the mere fact that Raham Ali was apprehended on the spot while others were not or that his name is mentioned ire the statement of Choudbry Muhammad Anwar.
2. It has been urged before me that even so the prosecution has been showing undue favour to the accused party and out of the six persons named in the F. I. R. Only three, namely, Raham Ali and the present respondents have been sent up to Court. It had, therefore, become necessary for the applicant to file a direct complaint, That complaint, however, is at the stage of a preli--minary enquiry although I find that some .14 witnesses have been examined. I do not propose, therefore, to place any reliance upon this for the limited purpose of deciding whether or not the bail granted should be allowed at this stage to continue.
3. It is a disturbing feature of this case that in the applica--tion (for bail presented before the learned Additional Sessions Judge no body of the name of Bahadur was mentioned at all but one Baharo was mentioned. After the order of release was sent to the prison the Superintendent of Jail pointed out that the accused person has been admitted in the name of Bahadur son of Fida Hussain (which is the name of the respondent before me) and not Baharo son of Nazar Hussain which is the name men--tioned before the learned Judge. All that the Superintendent of Jail should have said was that no body of the name of Baharo Son of Nazar Hussain was in his custody and at was ;tot his deputy at all to presume that the person intended to be named was the same Bahadur son of Fida Hussain. I do not see what material the Superintendent had for coming to such a conclusion. There--aP4er an application was made to the learned Additional Sessions Judge purporting to ask an amendment in the order so as to sub--stitute the name of Baharo son of Nazar Hussain for that of Bahadur son of Fida Hussain. On the merits of this procedure also I refrain from commenting.
4. In the result, therefore, I allow this application and direct that the respondents be remanded to custody pending the com--mittal enquiry. Of course if it appears at a later stage that there is no evidence upon which it can be reasonably inferred that the two persons were concerned in an offence punishable with death or transportation for life it shall certainly be open to them to apply again to the Courts below which will no doubt pass such order as deemed fit in the circumstances of the case.