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Criminal Revision No. 1125 of 1967 and Criminal Mis cellaneous No. 1238 of 1968, heard on 31^st May 1968.

S. 497(5)--‑Bail---- Cancellation of--‑Petitioners' names appearing in F. I. R. as accused for murder‑Sessions Judge on plea of alibi and after recording statement of Police Officer concerned granting bail before arrest to petitioner‑Circumstances negativing existence of "reasonable grounds for believing" that accused was guilty of murder‑Order of Sessions Judge maintained.

Abdur Rehman v. Fazal Qadim Khan and others P L D 1967 S C 293 fol.

Muhammad Aslam and others v. The State P L D 1967 S C 539 ref.

M. M. Bhatti for Petitioner.

S. Mahmood Khan for Respondents Nos. 1 and 2.

Fakharuddin Pirzada for the State.

Date of hearing: 31st May 1968.

The first information report was lodged by Ismail son of Azim in Police Station Sadar Khanpur, District Rahimyarkhan, on 11th September 1967 at 4 a.m. alleging that one Dilmeer was ambushed by six persons, including Muhammad Saleem and Muhammad Ashraf, between 5 and 6 p.m. on 10th September 1967 in Chak No. 44/P. The accused persons assaulted him and caused him injuries. The first information report was initially registered under sections 307/149 and 148, Pakistan Penal Code, but was converted to section 302, Pakistan Penal Code, on 17th September 1967, on the receipt of the report from the Medical Officer, Incharge of the Civil Hospital, that Dilmeer had died as a result of the injuries received in the incident mentioned in the first information report.

2. Muhammad Ashraf, Muhammad Yusuf, Muhammad Yaqub and Muhammad Saleem, all of whom are mentioned in the first information report, applied for bail before arrest before the Sessions Judge, Rahimyarkhan. The learned Sessions Judge called for the record and found from the Police Diary that one Sheikh Muhammad Iqbal, an Assistant Sub‑Inspector attached to the aforesaid Police Station, had made a statement to the effect that Muhammad Ashraf and Muhammad Saleem had brought an injured person to the police station and got a case registered on 10th September 1967 at 2‑45 p.m. and that thereafter they took the injured person to the nearby hospital and returned to the police station where they remained till 6‑45 p.m. It was further found by the learned Sessions Judge that the Vice‑Chairman of the District Council had given an affidavit to the effect that Muhammad Ashraf and Muhammad Saleem had attended a meeting of the Muslim League Organising Committee at Khanpur on that day. The learned Sessions Judge by his order dated 7th October 1967, therefore, admitted Muhammad Ashraf and Muhammad Saleem to bail before arrest in the sum of Rs. 10,000 with two sureties in the like amount. He rejected the application of Muhammad Yusuf and Muhammad Yaqub ostensibly for the reason that the plea of alibi was not available to them.

3. An application has now been moved for the cancellation of the bail of these two persons.

4. It has been contended that‑

(a) the names of Muhammad Saleem and Muhammad Ashraf are mentioned in the first information report as persons who inflicted injuries on the deceased with a sharp‑edged weapon, and

(b) that it was not open to the learned Sessions Judge to have referred to the plea of alibi at a preliminary stage when the police was still investigating the case.

5. At the very outset, I make it clear that I am not dealing with a case where I am required to grant bail but that I am examining the order of the Sessions Judge whereby bail has already been granted with a view to finding out whether the order is sustainable.

6. My attention has been adverted by the learned counsel appearing for the respondent to a decision of the Supreme Court in Abdur Rehman v. Fazal Qadim Khan and others (P L D 1967 S C 293). In that case two persons, though not named in the initial report, had been challaned by the police by applying section 109 as persons privy and accessory to the murder. The then learned Chief Justice observed:‑

"Until the situation arises that there is a reasonable ground for thinking that the respondents are guilty of the offence shown in the challan, which is punishable with death or transportation for life, there would be no violation of law in allowing them to remain on bail . . . . . The committing Magis trate, and if a trial follows, the Sessions Court, will in due course be in a position to determine the question of bail on this basis, and the High Court order, directing bail before arrest, will then not stand in the way."

It was observed in Muhammad Aslam and others v. The State (P L D 1967 S C 539) that:

"An application for bail is often made before the commit ment proceedings have even started. What would then be the material on which the Court may form opinion, whether reasonable grounds appear Obviously the F. I. R., the recoveries, if any, and the statements of the witnesses recorded under section 161, Cr. P. C."

7. In the present case, the Assistant Sub‑Inspector, referred to above, has been examined by the crimes Branch who were investigating the case, and has affirmed his statement in the zimni about the alibi of Muhammad Saleem and Muhammad Ashraf. I am not at the moment concerned whether this state ment is correct or incorrect because that would be the function of the committing Court and thereafter of the trial Court, and I have no intention whatsoever of pre judging the matter. I am only concerned with finding out whether on the material before me, as it exists, it is possible to say that "there appears reason able grounds for believing" that Muhammad Saleem and Muhammad Ashraf have "been guilty of an offence punishable with death or transportation for life".

8. I have the first information report before me as well as the statement made by the Assistant Sub‑Inspector. Purely ex facie I cannot say that the learned Sessions Judge was wrong in taking the statement of the Assistant Sub‑Inspector at its face value, and so taken it does negative the existence of "reasonable grounds for believing". This conclusion arrived at by the Sessions Judge or by me cannot and does not affect the determination of the matter ultimately by the Inquiry Magistrate or the trial Court after the first information report and the statement of the Assistant Sub‑Inspector have been subjected to the test of cross‑examination and after other material has come up before them. I am neither prejudicing nor forestalling their decision.

9. In these circumstances, I do not find it possible to dis agree with the learned Sessions Judge and adopting the dictum of the Supreme Court in Abdur Rehman's case dismiss this petition and leave it to the Inquiry Magistrate or the Sessions Judge to cancel the bail when the situation arises that‑

"there is reasonable ground for thinking that the respondents are guilty of the offence shown in the challan."

Petition dismissed.

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