This application for grant of bail to the applicant, who is involved in a case under sections 302, 296 and 399 read with section 120-B; P. P. C. Presents an interesting background, which stated briefly is as follows.
A double murder was committed in the town of Rohri, District Sukkur, at 8-30 a.m. On 20th July 1967, in which five culprits were implicated and it was alleged in the first information report that the applicant, Syed Piral Shah, was in conspiracy and in complicity with these culprits as his nephew had been murdered 12 months earlier by deceased Imam Dino Shah. During the course of the police investi--gation two persons, Jafar Shah and Mahboob, implicated the applicant in their statement recorded under section 164, Cr. P. C. These were to the effect that Jafar Shah had visited the Otak of the applicant and seen him passing certain currency notes to the accused; and Mahboob, who is the servant of the applicant, is said to have been seen five culprits in the company of the applicant in his Otak the preceding evening.
3. Before the applicant was arrested, he approached this Court for grant of bail before arrest through Criminal Bail Application No. 235 of 1967. He was given an interim protection by this Court and his bail was also finally confirmed by this Court. This State, however, feeling aggrieved by the order of this Court directing the release of the applicant on, bail, approached the Supreme Court of Pakistan by way of Petition for Special Leave to Appeal No. K-47 of 1967, with result that their Lordships of the Supreme Court by their orders dated 30th January 1968 suspended the operation of the order of the High Court until the final disposal of the appeal before them. This then resulted in the arrest of the applicant.
4. During the pendency of the case before the Supreme Court of Pakistan, the Commissioner of Khairpur Division referred the case against the applicant for trial to the Tri--bunal under the West Pakistan Criminal Law Amendment Act, 1963. After this reference was made, the District Magistrate, Sukkur, directed the release of the applicant on bail pending his trial before the Tribunal. This fact was noticed by their Lordships of the Supreme Court while hearing the State-appeal before them and by their order dated 20th May 1969 their Lordships called for the report of the District Magistrate, Sukkur, as to how in spite of their order the applicant was released on bail. The learned Additional Advocate-General states at the bar that the learned District Magistrate there--after cancelled the applicant's bail and he has since then remained in custody.
5. The trial of the case against the applicant before the Tribunal ultimately did not take place as it was subsequently found by the Government in the revision application filed by the applicant that the offence with which he was charged was not a scheduled offence under the Act. As a result of this the case was sent back for trial to the ordinary criminal Court and the present position is that the applicant stands committed to the Court of Sessions for trial for the afore--said offence. He applied for release on bail during the pen--dency of the trial in the Sessions Court but his prayer was rejected by the learned Additional Sessions Judge, Sukkur, on the simple ground that the question of the grant of bail was pending before the Supreme Court of Pakistan and it was not proper for him to interfere.
It is in these circumstances that the applicant has now approached this Court for the grant of bail, the ground in the main being that there exists no iota of evidence in the prosecution case which can possibly connect him with the crime with which he is charged. This position has been practically conceded to by the learned Additional Advocate---General appearing for the State. I have also gone through the record of the case and feel that the ground urged has great force so far as the question of consideration of bail to the applicant is concerned, without affecting, however, the merits of the case at the trial. All that appeared against the applicant at one stage up to the level of the Supreme Court of Pakistan at that time was the statements under section 164, Cr.
P. C. Of two persons, Jaffar Shah and Mahboob, which have been referred to above. These two persons have been examined by the inquiry Magistrate in the Committal proceedings and they have resiled from their statements; in result no prosecu--tion witness has deposed against the applicant during the committal inquiry, there is none to depose against him in the Sessions Court, and further that there is no other type of evidence which can conduct the applicant with the crime with which he is charged. The question is whether in these circumstances this Court can direct the release of the applicant on bail in the face of the order of the Supreme Court directing the suspension of the earlier order passed by 'this Court granting bail to him. The learned Additional Advocate-- General with reference to Article 61 of 1962-Constitution vehemently urged that the Supreme Court has all the neces--sary power of doing complete justice in any, case or a matter pending before it and all the directions issued in this behalf are to be enforced throughout Pakistan and it is not proper for this Court to interfere and direct the applicant's release when the question of the grant of bail to him is a matter which is yet pending consideration of their Lordships of the Supreme Court. There can be no exception to the legal position urged by the learned Additional Advocate-General with regard to the powers of the Supreme Court of Pakistan under the Constitution or under any other law in force in Pakistan, but surely if the Supreme Court has the power to do complete justice in any case ultimately, the High Court is not deprived of its own power of doing complete justice in that case in the meanwhile, In the face of the facts which are quite glaring that there exists no iota of evidence oz: the record from the prosecu6mr side connecting the applicant with the crime, I fail to see any restraint placed on the power of the High Court in doing complete justice according to law in the order of the Supreme Court of Pakistan passed in this case earlier. It may be stated that when their Lordships passed the order directing the suspension of the order of this Court the case against the applicant was at the police inves-- tigation stage, much more has been bone in the cask uptill now in that all the evidence, that the prosecution could collect so far has been laid before the Court, and it is in the light of the present stage of the case that this order is being passed. The learned Additional Advocate-General himself frankly referred to the case of Abdul Hayee Khan v. The State (PLD 195& SC (Pak.) 1969) in which exception was taken by their Lordship of the Supreme Court to the order of a Magistrate directing the release of an accused on bail on the ground of laches on the par. Of the prosecution in the face of an order of the High Court to the effect that the question of his release should be considered after some evidence is recorded. It was held in that case that the Magistrate derived his power of granting bail under section 497, Cr. P. C. And no restraint could be placed on that power by the High Court that does not appear in the section itself.
6. It appears to me clearly that the order passed by the Supreme Court of Pakistan referred to above does not have the effect of a restraint on the High Court's power to direct the release of the applicant on bail if it is otherwise warranted by law. On the facts of the present case the release of the applicant being otherwise justifiable under the law, would be only failing in my duty if I were to withhold it on the ground that I should leave it to the Supreme Court of Pakistan to do complete justice.
7. I, therefore, direct that the applicant shall be realised on bail on his furnishing two sureties in the sum of Rs. 10,000 each, and on his executing personal bond in the like amount to the satisfaction of the Sessions Court at Sukkur.