1. ' Arguments heard order reserved.
2. ' By this order I intend to dispose of Criminal Bail Application No,405 of 1997 filed by Malik Amanullah who is involved for an offence under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
3. ' Brief facts are that the applicant was arrested in F.I.R. No,121 of 1996 filed with Kuchlak Police Station upon the report of one Ahmadullah with alleging that a truck containing 530 bags of sugar was stopped on the way from Kuchalk to Chaman by some dacoits on gun point, who forcibly took away the truck and the sugar. However, subsequently sugar bags were recovered from the shopkeepers who disclosed that the same were handed over to him by the accused/applicant .
4. ' After investigation the police put up challan which is pending before Additional Sessions Judge-I, Quetta where bail application filed by Amanullah was rejected. This Court also refused to grant him bail vide two successive orders, dated 12-9-1997 and 13-10-1997. However, in Bail Application No,312 of 1997 this Court observed that matter is since pending, therefore, the Presiding Officer was directed to examine the relevant witnesses within a period of 20 days whereafter the petitioner may move fresh application for bail.
5. ' After such order P.W.1 Ahmed Ullah, P.W.2 Jan Muhammad, P.W.3 Noor Muhammad and P.W.4 Fazal Muhammad were examined by the Court. These were relevant witnesses after whose deposition a fresh bail application was moved which was also rejected. Hence this application for grant of bail.
6. ' Heard Mr. Naeem Akhtar, Advocate for petitioner and Mr. Abdul Karim Khan Yousafzai for the State.
7. ' Mr. Naeem Akhtar contended that P.W.1 Ahamdullah has not nominated Amanullah accused in his statement before the Court. P.W:2 Jan Muhammad stated that he was not in the truck and he was declared hostile. P.W.3 Noor Muhammad deposed that since the accused persons had muffled their faces he did not identify them. Likewise P.W.4 Fazal Muhammad has not implicated Amanullah. Similarly Ainuddin has filed an affidavit that he has not named the accused, so also Bakht Muhammad. In the circumstances a prayer was made that since prima facie the main witnesses have not implicated Amanullah, with the commission of offence, his case, therefore, falls within the category of section 497(2), Cr.P.C. As a case of further inquiry.
8. ' Learned State Counsel, however, opposed grant of bail on the ground that this Court has already refused to grant bail to Amanullah and successive bail applications be discouraged. According to State Counsel although the witnesses have turned hostile in Court but their 161, Cr.P.C. Statement are pertinent on the basis whereof this Court refused to grant bail to the accused. While supporting the order whereby bail was refused, the counsel contended that learned Court has taken into consideration the remaining evidence and has rightly refused bail.
9. I have considered the arguments so advanced. I had already refused bail to the accused on the basis of statement of witnesses recorded under section 161, Cr.P.C. I directed that the eye-witnesses be examined whereafter the accused would be entitled to file a fresh basil application. Accordingly the trial Court examined 4 witnesses and all of them prima facie did not implicate the accused before the trial Court. The principle governing bail is that a tentative assessment has to be made of the statement of witnesses in order to reach a conclusion whether the accused has made out a ground for bail or not. The Court can examine statements recorded under section 161, Cr.P.C. Only when the witnesses have not been examined by the Court. However, when such witnesses are examined by the Court then it is the statements recorded by the trial Court which shall be relevant for the purpose of assessm ent whether to grant or refuse bail. Applying this principle to the facts of the present case, the statements which have been recorded by the trial Court shall have to be considered for the purpose of grant of refusal of bail. While rejecting bail at two previous occasions since the witnesses had not been examined by the trial Court, therefore, this Court on the basis of 161, Cr.P.C. Statements refused bail to the petitioner. But all the four witnesses have now prima facie not implicated present accused, therefore, his case falls within the category of subsection, (2) of section 497, Cr.P.C. In the circumstances I grant bail to the accused who shall be released subject to his furnishing security in the sum of Rs,2,00,000 (Rupees two lacs) with two sureties of Rs,1,00,000 (Rupees one lac) each and P.R. Of like amount to the satisfaction of the trial Court. He shall be so released if not required in any other case.