FIDA HUSSAIN Versus THE STATE

ORDER

The incident took place on the night between 24/25th of March 1974. Wahid Bakhsh was murdered. The petitioners were named as suspects. There was no eye‑witness. The petitioners were arrested on the next day. Karim Bakhsh, Khuda Bakhsh and Ghulam Muhammad are the witnesses about the extra‑judicial confession of the accused. Karim Bakhsh and Fateh Muhammad are Wajtakkar witnesses. The witnesses about the motive are Karim and Ghulam Shabbir.

2. The case was investigated by Hayat Khan Sub‑Inspector. He submitted a report under section 173, Cr.P.C. against the accused. The Deputy Inspector‑General entrusted the investigation to Mr. Hashmat Khan who agreed with the opinion of Hayat Khan Sub‑Inspector. The

Deputy Inspector‑General again entrusted the investigation to Raja Khizar Hayat. According to him all the witnesses have disowned their earlier statements.

3. I sent for the complainant Imam Bakhsh. He appeared and said that the witnesses had not disowned their earlier statements. The case is fixed in the Court for evidence on the 7th of December, 1974. Whether or not the witnesses will support the prosecution story is a matter which will be evident from their statements in the Court. It will not be proper for me to believe the statement of Raja Khizar Hayat Sub‑Inspector and say that the witnesses have not supported the prosecution story. This is not a proper stage for admitting the petitioners to bail. The application is rejected.

4. The learned Magistrate will, however, ensure that if the witnesses appear before him he will record their statements day to day and should, at any rate, see that they are examined within the next six weeks, failing which he will send a report to this Court. If after recording the evidence of the witnesses the Magistrate is of the opinion that they have not supported the prosecution story it will be open to him to admit the petitioners to bail.

5. Before I part with the case I would like to observe that it has become a practice of late that the investigations are transferred from one officer to another by different orders of the superior officers, i.e. D.I.‑G. or I.‑G. It is not conducive to the administration of justice to do so. Investigation by a police officer, by itself, is not a proof of the guilt or innocence of the accused. If a police officer submits a case to the Court against the accused his report is not a legal evidence in the case, nor can the Court rely on it. The proper course for the authorities is to leave the matter to, the Court to adjudicate upon it and to come to its own conclusion on the evidence which is produced before it as to whether any offence is made out or not. By transfer of investigation from one officer to another, an opportunity is afforded to the parties to win over the witnesses which result into vicious circle of corruption Since the statements under section 161 Cr.P.C are not signed at times it also happens that statements are attributed to witnesses which are in fact not their statements. It affects the fair trial because the prosecution witnesses can always be confronted with such statements under section 162, Cr.P.C. and because of contradiction even the culprit get the benefit of doubt.

M. Y. H. Application rejected.