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Criminal Miscellaneous No. 422/B of 1971, decided on 9th March 1971:

Ss. 497(2) & 498‑ Bail‑Commitment to Sessions Court‑Committing Magistrate refusing to cancel accused's bail on commitment of case to Sessions Court but Sessions Judge cancelling same on revision‑Contention that police having placed accused in column 2 of ‑challan form further‑ inquiry still necessitated and that commitment order having said nothing as to nature of evidence available against each accused, accused were entitled to bail‑Commitment order, held, although very unsatisfactory, yet Sessions Judge having referred to evidence of three witnesses corroborating prosecution story, case neither one necessitating further inquiry nor one of no tangible evidence‑Discre tion exercised by Sessions Judge, in circumstances, not interfered with.

Maqbool Ahmad v. Anwar and another P L D 1967 Lah. 364 ; Ghulam Rasul v. Ghulam Mohammad etc. P L. D 1971 S C 128 and Nisar Ahmad v. The State P L D 1971 S C 174 ref.

Razi Abbas Bokhari for Petitioner.

Ch. Qamar‑ud‑Din for the State.

The two petitioners along with two others are accused for the commission of an offence under section 302/34, P. P. C. for the murder of one Lal Khan. As a result of the investigation the police found that the plea of alibi raised by the two petitioners had some substance and placed. their names in column No. 2. The complainant filed a separate complaint against the, two petitioners as a result of which they were summoned y the Inquiry Magistrate, who ultimately committed the two petitioners and their co‑accused to the Court of Session to stand their trial by his order dated 26‑8‑70.

2. Before the commitment order had been passed the petitioners had moved the Sessions Court at Rawalpindi for the grant of bail. Ch. Bashir Ahmad, Additional Sessions Judge, Rawalpindi, granted bail to them on 2‑4‑70 He, however, kill observed that the Inquiry Magistrate will be at liberty to cancel the bail granted to the petitioners if he commits the accused for trial but he refused to do so vide a copy of the order (Annex. D), dated 27‑8‑70. The learned Magistrate relied on Maqbool Ahmad v. Anwar and another (P L D 1967 Lah. 364) where it is held :‑

"Framing of charge against accused is not tantamount to finding that accused is guilty of offence punishable with death or transportation for life."

3. The complainant thereafter moved the learned Sessions Judge, Rawalpindi, for, the cancellation of the bail grants to the petitioners. The learned Sessions Judge passed an order on 10‑2‑1971 cancelling the bail granted to the petitioners. He in this connection 'relied on Ghulam Rasul v. Ghulam Mohammad etc. (P L D 1971 S C 128).

4. It is urged by the learned counsel for the petitioners that the investigating agency having found the petitioners to be innocent; there was still room for further inquiry and the petitioners were in any case entitled to bail under subsection (2) of section 497, Cr. P. C. He has also invited my attention to the copy of the commitment order wherein nothing has been said as to the nature of evidence available against the petitioners. I have been referred to this commitment order and I find that it is a very unsatisfactory order: The learned committing. Magistrate after mentioning the number of witnesses has stated‑that he had perused the record and had found that the case was fit ‑for com mitment: It was his duty at least to set out the prosecution evidence against each accused and then come to a final conclusion.

5. The question of further inquiry does not arise in this case. The learned Sessions Judge has referred td the evidence of three prosecution witnesses, namely, Sakhi Mohammed, Said Khan and Mohabat Khan, all of whom have deposed the Mansabdar inflicted a stick blow on the head of the deceased and Lal Khan petitioner, threw him in a Khad after injuries had been inflicted on him Mr. Bokhad relies on Nisar Ahmad v. The State (P L D 1971 S C 174), wherein it was said that "it is open to an accused person to pray for his bail even after his commitment, by showing that his commitment has not been made to Test on any reasonable grounds, and that the committing Magistrate, instead of apply ing his mind to the case to reach to a conclusion that a prima facie case has been made out, has merely transmitted the allegations of the prosecution, with no tangible evidence to support them".

6. I have held above that this is not a case where there is any ground to hold that further inquiry is necessary. It is also not a case where there is no tangible evidence. Therefore, it: is legitimate to hold that there' are grounds to believe that the petitioners are guilty of an offence punishable with death or transportation for life. The discretion exercised by the learned Sessions Judge is not open to any exception. I see no grounds to interfere with his order. This application is dismissed.

Application dismissed.

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