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Criminal Miscellaneous No. 3702 of 1966, decided on 19th December 1966.

497(5) & 498 Cancellation of bail ‑Offence under Ss. 302/34, Penal Code (XLV of 1860)‑Framing of charge against accused is not tantamount to finding that accused is guilty of offence punishable with death or transportation for life‑Nature of accusation is to be seen in considering cancellation of bail‑ Accused though armed With possessing at victim o crime with whom he had direct enmity‑No case for cancellation of bail.

Sher Ajam Shah v. Mir Adat Shah and others P L D 1965 Pesh. 23 ; Shahzada Noor Muhammad v. The State P L D 1964 Lab. 464; Muhammad Ayub v. Muhammad Yaqub and the State P L D 1966 S C 1003 and Abdul Aziz v. Bashir Ahmad and the State P L D 1966 S C 658 ref.

Muhammad Afzal for Petitioner.

Hamiduddin for Respondent No. 1.

M. Z. Baber Shah for the State.

This is an application under section 497 (5) read with section 498, Cr. P. C. for the cancellation of bail of Muhammad Anwar respondent. He was ranted bail in a pending case under section 302/34, P. P. C. Maqbool Ahmad petitioner is the son of Wazir Ali deceased. The application for the cancellation of bail is supported by the State. It is contended that after framing of a charge against Muhammad Anwar respondent and his co‑accused for the offence under section 302/34, P. P. C. he should have been taken into custody but the committing Magistrate was precluded from doing so as there was no direction in .the order passed by this Court that the respondent should be taken into custody in the event of his being committed to Court of Session. Learned counsel for the petitioner relied on Sher Ajam Shah v. Mir Adat Shah and others (P L D 1965 Pesh. 23) and Shahzada Noor Muhammad v. The State (P L D 1964 Lab. 464) in support of his contention. Learned counsel for the respondent referred to Muhammad Ayub v. Muhammad Yaqub and the State (P L D 1966 S C 1003) and Abdul Aziz v. Bashir Ahmad and the State (P L D 1966 S C 658). This Court in the reported cases referred to above has consistently taken the view that the enquiry Magistrate is bound to cancel bail granted to an accused person in the event of his being committed to Court of Session on a charge of non‑bail-able offence against him.

The Supreme Court in the case reported as Muhammad Ayub v. Muhammad Yaqub and the State observed at ‑page 1015 as under :‑

"Of course the mere existence of an order of commitment for trial need not be equated with finding that "there appear reasonable grounds for believing that the respondent was guilty of an offence, punishable with death or transportation for life". Only a prima facie case must be deemed to exist against him on the basis of the order of commitment."

If I have been able to understand correctly the implication in the judgment of the Supreme Court in the case of Abdul Aziz v. Bashir Ahmad and the State, the nature of the accusation has also to be seen in such a case by the Court. In instant case Muhammad Anwar respondent though alleged to have been armed with a pistol did not fire at the victim of the crime with whom he had direct enmity. Ordinarily, an accused person, if armed with a lethal weapon, would use it against his enemy in such a situation. Looking at the nature of the accusation in this particular case against Muhammad Anwar respondent I am of inclined to cancel his bail merely because he has been chard of an offence under section 302/34, P. P. C. as the framing of the charge is not offence punishable with death or transportation for life. Accordingly the application is dismissed.

K. M. A. Application dismissed.

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