1. NURUL ISLAM, J.-This rule arises out of an application for bail. There was a first information report lodged on 3-11-69, with the Rajapur Police Station by the complainant Mozammel Hossain Akon, on the allegations inter alia that while the said complainant accompanied by one Nurul Islam was proceeding to Naikathi Namapara Free Primary School, was attacked by the petitioners along with Akabbar Howladar and that the petitioners Nos. 1 and 2 dealt dao blows and the petitioner No. 3 Mukhtar Ali Chowkidar ordered the other petitioners to do away with him, On 12-11-69, the accused- petitioners and Akabbar Howladar surrendered to the Court of the Sub-Divisional Magistrate, Sadar (South), Barisal and on the following day charge-sheet, was submitted against them by the police under sections 147, 14, 326 and 307/34 of the Pakistan Penal Code. Thereafter, on 25-11-69, the said accused persons filed an application before Mr. Abdul Majid, the learned Magistrate, praying for bail and the said prayer was refused. The accused persons thereafter moved the learned Sessions Judge on 8-12-69 with the prayer for bail and the said prayer was also refused. Thereafter the accused persons filed another application before the learned Sessions Judge praying for bail and on the said application the learned Sessions Judge called for the records and fixed date for hearing of the matter and in the meantime granted interim bail to the --accused persons. But on the final hearing of the said application the learned Sessions Judge refused to grant bail by his order dated 3-2-70. The, certified copy of the said order produced before us shows that the said order runs to the following effect ---L. C. R. Received. Heard both sides. It appears that the enquiry - before the lower Court is still in progress. It is true that the petitioner's application for bail was rejected by the Sessions Judge on 8- 12-69, on the grounds stated in that order and that the petitioners described the case in that application for bail as a case of murder under section 302, P. P. C. Along with other sections in place of section 307 of the P. P. C. For section 326, P. P. C. By mistake. But it has been shown for the State that the accused-petitioners have already threatened some of the P.Ws. With murder if they depose against them. The complainant's application dated 26-1-70 to the Court Inspector, Barisal and the report of O/C Rajapur prima facie show that there is every chance of tamparing with the prosecution evidence if the accused be enlarged on bail. In the circum--stances, I consider the enlargement of petitioners on bail hazardous as it may prejudice the enquiry. Hence the prayer for bail is rejected. "
2. The accused persons thereafter moved an application before the learned Magistrate with a prayer to allow them to surrender to the Court after the Eid holidays and the learned Magistrate was pleased to grant them time accordingly and the accused persons thereafter duly surrendered to the Court on 20-2-70. Thereafter on 23-2-70 the said accused persons moved another application praying for bail before the learned Sessions Judge, Barisal, and a rule was issued on the District Magistrate to show cause as to why the accused persons should not be granted bail. The said application was heard and disposed of by the learned Sessions Judge on 4-3-70, and the order runs as follows.
3. "Heard Advocates for the C. I considered the allegations. Bail be granted to accused. Akabbar as it has been submitted that one should be got to do necessary tadbir for the accused. He be enlarged on bail of Rs. 5,OC0.00 with 2 sureties of like amount, one of the sureties being an Advocate, Bail for others is refused."
4. Thereafter the petitioners moved this Court and obtained the aforesaid rule. Their case, in short, is that they are innocent and they have been falsely implicated out of enmity with the complainant and the petitioner No. 7 Ram Krishna Sikdar, got a criminal case under section 384 of the Pakistan Penal Code in the Court of Mr. M. C. Berman, Magistrate, 1st Class against Sukur Mridha, Ex- Chairman of the Local Union Council, a close relation of the complainant and in the said, case the accused petitioner Mukhtar Ali Chowkidar deposed against .The said Ex-Chairman. It has also been asserted by the petitioners that they are men of substance and there is no possibility of their absconsion, nor there is any possibility of holding out any threat to any witness or to tamper with the evidence in any way. It is further asserted by them that there is no male member in the family to look after their families consisting of minor children and families and that there is no one to look after the cultivation of the lands.
5. With regard to the accused-petitioner Mukhtar Ali Chowkidar, it has been further submitted in the petition that he is an old man of eighty and is infirm and unable to move without the help of others and he has been keeping indifferent health. Allegation has also been made to the effect that the trial of the petitioner has been delayed due to the machinations of the complainant and the petitioners have been made to suffer in the jail custody for a pretty long time.
6. We have perused the application and the connected orders and paper. We have also heard the learned Advocate appearing on behalf of the petitioners and the learned Deputy Legal Remem-- brancer for the State at length in this case.
7. Mr. Rashid the learned Advocate for the petitioners firstly submits that in the facts and circumstances of the case stated in the application and particularly in view of the fact that the learned Sessions Judge granted bail to one accused Akabbar, the petitioners are also entitled to bail. It is further submitted by Mr. Rashid that while the accused-petitioners were on interim bail, they did not misuse the same and they surrendered in due date. The learned Advocate seriously urges that there is no chance of holding out any threats to the witnesses, nor, there is any chance of tampering with the evidence. He has been very critical in submitting that for a pretty long time these petitioners have been in the custody and made to suffer, particularly, due to the fact that the trial has been delayed at the instance of the complainant to their utter prejudice.
8. The learned Deputy Legal Remembrancer, on the other hand, submits that at this stage the petitioners' case for bail should not be considered, inasmuch as, there is every chance of the prosecution being prejudiced if they are released on bail. Of course, he has been candid enough to say that the case of the petitioner No. 3 Mukhtar Ali Chowkidar may be considered in view of his old age and bad health.
9. The order of the learned Sessions Judge passed on 3-2-70 quoted above will show that he was unable to grant bail to the accused persons as he believed the case of the State that the accused persons already threatened some of the prosecution witnesses with murder if they deposed against them and the complainant filed an application on 26-1-70 to the Court Inspector, Barisal, and a report of the Officer-in-Charge Rajarpur Police Station was obtained on the said application and the same would prima facie show that there is every chance of tampering with the prosecution evidence if the accused persons were enlarged on bail. Moreover, the order dated 4- 3-70, as quoted above, will show that on that occasion it was submitted on behalf of the accused persons that one of the accused should at least .Be enlarged on bail for the purpose of taking necessary steps for the accused persons in the trial and the learned Sessions Judge having accepted the sai4., submissions enlarged the accused Akabbar Howladar on bail and' his order is specific on' that point. We do not find any fresh materials, which may call for granting bail to the accused---petitioners, excepting in the case of the petitioner No. 3 Mukhtar Ali Chowkidar. As regards Mukhtar Ali Chowkidar we find from the statement made in paragraph 10 of the application that the said accused-petitioner is aged about 80 years and he is very old and infirm and even unable to move without the help of others and he has been keeping very bad health. This fact has not been controverted by the State, rather the learned Deputy Legate Remembrancer has been candid enough to say that his case may be considered in the light of the said statements made in the application. We, therefore, are of opinion that the said petitioner No. 3 Mukhtar Ali Chowkidar should be enlarged on bail.
10. With regard to other petitioners as we have already observed above, we do Clot find anything to consider their case for bail. Moreover, we may here mention that we do not find any substance in the contention of the learned Advocate for the petitioners when he says that if Akabbar Howlader could be granted bail, there is no reason why the bail should not be granted to the other petitioners. The answer to the said argument of the learned Advocate is found from the order of the learned Sessions Judge dated 4-3-70 and also from the statement made in paragraph 8 of the application filed in this Court. From the statement made in paragraph 8 of the application it appears that the accused Akabbar is a close relation of Mokhtar Ali Chowkidar, Monasef Howlader, Altaf and Delwar Howlader and Sultan. So when Akabbar has been enlarged on bail, he will be able to make necessary tadbirs for the accused-petitioners and that was the submission made to the learned Sessions Judge who after accepting the said submission granted bail to Akabbar Howlader.
11. We may also point out that we hardly find any substance in the contention, of Mr. Rashid when he submits that once bail is granted by the learned Sessions Judge, he cannot cancel it and if the learned Sessions Judge feels the necessity of cancelling the same, he should refer the matter to the High Court. In this regard he has referred to the decision of this Court in the case of Haji Sultan Ahmed and others v. The State (16 D L R 325). Before I refer to the said case I may here mention that the instant case before us does not relate to cancellation of bail.
12. As I have already stated above, only interim bail was granted and on final hearing the learned Sessions Judge did not grant bail to the accused persons. The decision relied on by the learned Advocate would show that the said case was not with regard to the interim bail granted by the learned Sessions ---fudge but the order of cancellation of bail passed by the learned Sessions Judge, Chittagong, was objected to and moved against in this High Court and in dealing with the said case A. S. Chowdhury, J, has been pleased to observe "The learned Judge's order is technically wrong inasmuch as he has no power to cancel the bail. He should have referred the matter to this Court for cancellation of the bail in exercise of its revisional jurisdiction."
13. This decision is of no help to the learned Advocate for the petitioners before us as I have already observed that the said decision relates to a case where a bail was granted but it was again cancelled by the learned Sessions Judge. Over and above it is regrettable to note that the learned Advocate failed to refer to the decision reported in PLD 1965 Dacca 150 wherein A. S. Chowdhury, J.
14. Sitting with Abdulla, J. Reconsidered the above decision and took a different view following the decision reported in 8 D L R 118 (FC). Moreover, it may be pointed out that according to the proposition sought to be made out by the learned Advocate to the effect that once a bail is granted even if interim, the same cannot be cancelled, the learned Sessions Judge is left with no power to cancel the same on final hearing and it would lead to a very hazardous situation and the final hearing of the application for bail after granting interim bail to the petitioners before the learned Sessions Judge would be relegated to non-entity and it would have no meaning absolutely in the case. That being the position we have no hesitation to say that this contention of the learned Advocate for the petitioners has no substance. It should be pointed rout that the order of rejection of the prayer for bail for the petitioners Nos. 1, 2 and 4 to 7 will not stand in any way of learned Sessions Judge or the enquiring Magistrate to exercise their discretion in the matter of granting bail to them whenever new circumstances will justify such action.
15. In the result we grant bail to the petitioner No. 3 Mukhtar Ali Chowkidar and direct him to be enlarged on bail to the satisfaction of the District Magistrate, Barisal, and the prayer for bail on behalf of the other petitioners is refused. The Rule is accordingly disposed of.
16. A. QUASIM, J.-I agree.