1981 PLP 734 (SCMR)

DORAB PATEL, J.-The first respondent, to whom we will refer as the respondent, is being tried with one Muhammad Khalid, for the murder of his cousin, Muhammad Haleem, at 8.00 p. m. on 12th August, 1977, in Khanpur. District Rahim Yar Khan. The respondent had obtained bail from this Court by a Judgment reported as Khalid javed Gillan v. The State (N L R 1979 Criminal S C 1Q) and in view of Mr. Shaukat Ali's arguments, we have to point out that bail had been pressed on the basis of an alibi and on other grounds including allegations of enmity and bias on the part of the prosecution. As we were reluctant to make any observation which would affect the case of the parties in the Sessions Court, we had allowed bail on the basis of the plea of alibi, because it was supported by a certifi cate issued by Dr. M. A. Aziz, the Medical Superintendent of the Mental Hospital, Lahore. Mr. Shaukat Ali has now sought a review of our order and submitted, inter alia, that the respondent was not a mental case and that the manner in which be had been admitted into the Mental Hospital with the connivance of Dr. M. A. Aziz was irregular and invited suspicion. Taking first the question of the respondent's mental condition, learned counsel referred us, for example, to the certificate of the Medical Superintendent, District Headquarter Hospital, Rahim Yar Khan, which is at page 7 of the Paper Book. Mr. Shaukat Ali relied on the statement of the Medical Superintendent that the respondent's memory was excellent and that his mind was balanced. But, as submitted by Mr. Sardar Iqbal, this certificate itself states that the respondent "is re commended to be examined by a qualified mental disease specialist". Next, as the respondent has passed his B.Sc. from the Lahore University of Engineering, Mr. Shaukat relied on a certificate of Dr. Naeemur Rehman, according to which the respondent was completely normal. But, Mr. Sardar Iqbal pointed out that this certificate was contradicted by the medical treatment book of the respondent which was produced before us. Similarly, whilst Mr. Shaukat Ali was vehement in his criticism that the respondent had been admitted in an irregular manner in the Mental Hospital, Mr. Sardar Iqbal submitted that there was nothing irregular in the manner in which the respondent had been admitted. We have referred to these submissions because they were argued at length by Mr. Shaukat Ali, but we regret to say that we are unable to see their relevance. We had granted bail on account of Dr. M. A. Aziz that the respondent had consulted him in the afternoon of 12th August, 1977. therefore, the material about the respondent's mental condition and the material about the manner of his admission in the Mental Hospital has no relevance whatever to our order granting bail. Mr. Shaukat Ali then submitted that the Medical Certificate was contradicted by a letter written by the respondent's father to Dr. M. A. Aziz, and he supplied photostat copy of this letter. We were reluctant to enter into this controversy, but as learned counsel insisted that this plea was relevant to his review application, we have to point out that according to the letter, the respondent had visited Dr. M. A. Aziz on the evening of 12tb August, 1977, therefore, Mr. Shaukat Ali sub mitted that this belied the statement in Dr. M. A. Aziz's certificate that the respondent had seen him in the afternoon of 12th August, 1977. But, the respondent could have visited Dr. M. A. Aziz in the afternoon and the Doctor could have called at the house of the respondent's father in the evening to see the respondent again, therefore, we see no contra. diction between the letter and the certificate. Mr. Shaukat Ali then stated that Dr. M. A. Aziz was being prose cuted with the respondent and the accused, but we have taken note of this in our order granting bail. Mr. Shaukat Ali then stated that Dr. M. A. Aziz had given false certificates in other cases also, but in support of this submission, we were referred to newspaper reports. B We have refused to look at them, because newspaper reports are not evidence. Learned counsel then requested us to summon the record of some enquiry, which according to learned counsel, was pending against Dr. M. A. Aziz. But, it would be ridiculous for this Court to summon evidence in order to help the applicant to make out a case for review , therefore, we have no hesitation in rejecting this very unreasonable prayer. We were also informed that Dr. M. A. Aziz had been retired, but merely because a doctor has been retired after long years of service, it does not mean that he is guilty of any impropriety and the order produced before us does not indicate that Dr. M. A. Aziz had been D retired on the ground of misconduct. Therefore, no material whatever has been shown which could by the remotest inference lead to the view that we had erred in relying on the certificate issued by Dr. M. A. Aziz to the respondent. Mr. Shaukat Ali and Mr. Tanvir Ahmad then stated that there were three eye-witnesses and not two as observed in our order. But, this was not the position taken by the learned counsel for the State, who had appeared before us on 18th June, 1978, and it is interesting to note that Mr. Shaukat Ali himself has stated in this review application that there were two eye-witnesses. In any case, bearing in mind, the other submissions on which bail had been sought on 18th June, 1978, nothing turns on the question whether the prosecution relies on two eye-witnesses or three eye-witnesses. Learned counsel then wanted us to see material which had not been produced by the respondent on 18th June, 1978. We cannot possibly admit a review on the basis of material which could have been but was not through negligence produced at the appropriate time. Learned counsel then stated that one of the other accused was, threatening the prosecution witnesses. This allegation was vehemently denied by Mr. Sardar Iqbal and nothing in our order should be taken to mean that we have accepted Mr. Shaukat Ali's contention, but if the petitioners allegation be not false, he has his remedies in the lower Courts. Finally, learned counsel submitted that the bail order had prejudiced the case of the petitioner in the trial Court. The argument is totally and wholly misconceived and should never have been advanced in superior Court. No doubt complainants always make a grievance when bail is granted to the accused, but to submit that bail should not be granted on this ground would be an absolutely absurd proposition, because observations in bail orders are always of a tentative nature, therefore, whilst allowing bail to the respondent, we had observed in our order . And as the petitioner appears, on the whole to have been success ful in that litigation, Mr. Sardar 1qbal's submission was that Muhammad Azeem was an inimical witness. But inimical witnesses may be witnesses of truth, whilst disinterested witnesses may commit perjury. However, as a Court cannot, in bail applications, resort to an elaborate sifting of evidence, it has to go by its assessment of "the common course of natural events, human con duct and public and private business in their relation to the facts of the particular case", therefore, whilst the prosecution may be able to prove that Muhammad Azeem was a man of unimpeachable character for the purpose of the bail application, the hostile relationship between the parties is a circumstance not irrelevant to the Court's assessment of the material produced before it. Similarly, although the petitioner's plea of alibi is supported by the affidavit of a disinterested person, once again we must empha size that it would be open to the prosecution to prove that the evidence of Dr. M. A. Aziz is not fit to be relied upon." We have thus made it very clear that the Sessions Court will decide the voracity of the witnesses produced before it on the basis of its own assessment of their evidence. Therefore, learned counsel's apprehen sion is totally misconceived with these observations, the petition is dismissed, Petition dismissed.