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(On appeal from the judgment and order of the High Court of Lahore, dated the 12th February 1971, in Miscellaneous Petitions Nos. 7561 and 7872 of 1970).

(a) Criminal Procedure Code (V of 1898),

Ss. 497 & 498 Bail‑High Court earlier cancelling bail but trial Magistrate after recording statements of all prosecution witnesses (except complainant who was held to be deliberately absenting in order to prolong accused's detention in custody) coming to conclusion that prosecution case was not supported by witnesses and admitting accused to bail High Court subsequently cancelling bail in view of misconstruction of complainant's absence on date of hearing by trial Court and also for impropriety in not referring case to it ‑Rule of propriety, held, required that Magistrate, unless a resurrection in that behalf already made, should have referred case to High Court- High Court's order not interfered with.

(b) Criminal Procedure Code (V of 1898),

S. 526‑Transfer of criminal cases‑Complainant unsuccessful in her petition for trans fer of case to some other Court expressing apprehension of being subjected to physical harm by accused if she journeyed to the Court of trial Magistrate‑Police directed to arrange for an escort to take her to Court and conduct her back to her village.

Ch. Muhammad Saeed, Advocate Supreme Court instructed by Raja Abdul Razzaque, Advocate‑on‑Record for Petitioners.

Syed Wajid Hussain, Advocate‑on‑Record for Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing : 24th March 1971.

MUHAMMAD YAQUB ALI, J.‑

The petitioners are being tried in the Court of the Resident Magistrate, Depalpur. under section 326/34, P. P. C. on the accusation that they had on the 10th March 1970, cut the nose and pig‑tail of Mst. Sakina, complainant, in the area of Hujra Shah Muqim. The trial Magistrate granted them bail by two separate orders dated the 31st March 197J and 14th April 1970.

Both the orders were set aside by a learned Single Judge of the High Court on the application of Mst. Sakina, but after examining three eye‑witnesses the trial Magistrate again allowed them bail on 4‑8‑1970 on the ground that they had not supported the prosecution case and Mst. Sakina the only other eye‑witness was not present though she lived in the same village wherefrom the other P. Ws. had come. It was concluded that she was purposely avoiding appearance to prolong the detention of the petitioners in judicial custody.

Mst. Sakina who was, in fact, undergoing treatment in Hospital on 4‑8‑1970 and was discharged later on, thereupon moved the High Court for cancellation of the bail on the ground that they were threatening to kill her. Keeping in view the earlier order of the High Court and the erroneous assumption by the trial Magistrate that Mst. Sakina was deliberately avoiding appearance in Court, the learned Judge cancelled the bail given to the respondents. The present petition for leave to appeal is directed against that order.

It is urged that the view formed by the learned Judge that the trial Magistrate had no power to grant bail, because the High Court had earlier cancelled the bail is erroneous in law. Reliance is placed on the decision of this Court in Abdul Hayee Khan v. The State and another (P L D 1958 S C (Pak.) 169). It was observed in that case :

"That order which merely said that the question of bail was left to be decided by trial Magistrate after some evidence was recorded, has been interpreted by the Sessions Judge and in the High Court, as if it was the source of power in the Magistrate in regard to the grant of bail. That view is plainly fallacious, for the Magistrate derived his power of granting bail from section 497 of the Criminal Procedure Code and no restraints upon that power can be recognized except such as appear in the section itself. The present was clearly a case in which bail could have been granted by the Magistrate, provided he was satisfied that there was no reasonable ground for thinking that the offence lay under section 436, P. P. C. and for this purpose it was not a necessary condition that any evidence should have been recorded in the case."

The correct position in law was thus enumerated and it is not necessary to reiterate it. In the instant case the learned Judge has, however, cancelled the bail not because the trial Magistrate had acted without any legal authority, but in the view that Mst. Sakina's absence on 4‑8‑1970 had been misconstrued. The rule of propriety also required that the Magistrate should have referred the petitioners to the High Court for bail unless, of course, a resurrection in that behalf had already been made.

We, accordingly, do not consider it a fit case to interfere with the order of the High Court cancelling the bail granted to the petitioners, but direct that Mst. Sakina who is present in Court shall appear before the trial Magistrate at Depalpur on the next date of hearing falling in or about the 1st week of April 1971. In case she fails to appear the petitioners may apply for bail to the High Court.

Mst. Sakina who had unsuccessfully moved the High Court for transfer of the case to some other place expresses an apprehension that the petitioners might cause her physical harm if she undertakes a journey to Depalpur. Her apprehension may not be wholly unfounded. We, therefore, direct that the Superintendent of Police, Sahiwal, will arrange for an escort to take Mst. Sakina to the Court of the Resident Magistrate on the next date of hearing of which Mst. Sakina will furnish intimation and conduct her back to Hujra Shah Muqim where she is residing these days. Copy of this order will be sent to the Superintendent of Police, Sahiwal, and a copy given to Mst. Sakina dasti which she may take to the Superintendent of Police, Sahiwal, personally.

The petition is dismissed.

Leave refused.

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