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Criminal Miscellaneous No. 1060 of 1968, decided on 2nd April 1968.

, Ss. 220 & 497(5) Ball granted to accused by Police-Magistrate, held, not competent to cancel such bail under S. 497 (S).

Lakhsamsi and another v. Emperor A I R 1933 Sind 331 (2) ref.

S. 497(1)-Bail- Police as a result of investigation finding some of accused innocent including their names in column No. 2 of challan and releasing them on bail-Magistrate finding "prima facie case" made out against such accused cancelling their bail and committing them for trial- Mere existence of order of commitment for trial-Held, not to be equated with finding that "there appear reasonable grounds for believing that accused were guilty of an offence punishable with death or transportation for life"-Accused directed to be released on bail.

Learned counsel for the petitioners referred to the provisions in section 220 and subsection (5) of section 497, Cr. P. C. in support of the argument that in the instant case the order of the learned Magistrate taking into custody the three accused persons, namely, Iqbal, Riaz Ahmad and Muhammad Ashraf, who had been released on bail by the police as it was found as a result of investigation that they had not taken part in the occurrence was illegal and improper. Reliance in this connection is also placed on the case Lakhsamsi and another v. Emperor (A I R 1933 Sind 331 (2)) wherein it is laid down that in the case of the accused who is released by the police, the Magistrate has no power under section 497 (5) to commit him to custody. In the reported case the learned Assistant Public Prosecutor who appeared on behalf of the Crown accepted the argument that in the case of the accused who was released by the police, the Magistrate had no power under section 497 (5) to commit him to custody. No authority to the contrary was cited by the Additional Advocate-General appearing in the instant case. Agreeing with the view expressed in the reported case, I am inclined to hold that the Magistrate was not competent to pass an order under section 497 (5), Cr. P. C. for cancellation of the bail granted to Iqbal, Riaz Ahmad and Muhammad Ashraf by the Police.

2. I have seen the commitment order passed in the case and find that the witnesses who exonerated Iqbal, Riaz Ahmad and Muhammad Ashraf accused-petitioners during the investiga tion of the offence charged fully implicated them in their statements before the committing Magistrate. Naturally the Magistrate, who held the enquiry, had no option but to commit the petitioners along with their co-accused to the Court of Session for trial as the committing Magistrate is precluded under the law from weighing evidence. The Magistrate had to go by the evidence before him. He was not to enter into the appreciation of evidence. He felt that in view of the material on the record the case of the petitioner was in no way distinguishable from those of their co-accused. He, therefore, decided to commit all the accused including the petitioners to the Court of Session for trial. Since a prima facie case was made out against the peti tioners for the offences under sections 148 and 302/149, P. P. G. they were taken into custody.

3. The precise question, which is to be determined by me is whether the petitioners should have continued on bail in view o the fact that they were released on bail as a result of investigation by the police and their names had been included in column No. 2 of the challan. Only a prima facie case must be deemed to exist against the petitioners on the basis of the commitment order, "The mere existence of an order of commitment for trial need not to be equated with a finding that "there appear reasonable grounds' for believing that .the petitioners were guilty of an offence punishable with death or transportation for life". In view of the circumstance that the petitioners were found to innocent as a result of police investigation and their names were included in column No. 2 of the challan, I think they deserve the leniency in the matter of bail. I direct that the petitioners be admitted to bail on their furnishing a bail bond in the sum of Rs. 25,000 with two sureties each in the like amount, jointly and severally to the satisfaction of the Additional District Magistrate, Sargodha. They will remain on bail pending the disposal of the against them.

Bail granted.

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