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Petition for Special Leave to Appeal No. 240 of 1973, decided on 11th October 1.973.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated the 21st June 1973, in Criminal Miscellaneous No. 2235/B/73).

--‑S. 498‑Bail‑(Commitment proceedings)‑Whether or not prima facie case made out function of committing Court to decree Superior Court while considering question of bail should not ordinarily undertake such function‑Penal Code (XLV of 1860), S. 302/307/149.

It is the function of the commitment Court to decide whether a prima facie case has been made out or not. A superior Court while considering the question of bail should not ordinarily undertake this function and present the Magisterial Court with a decision of its own. A Magistrate would be placed in an extremely embarrassing position in such circumstances for, although he is not legally bound by the views of the superior Court yet he will feel hesitant to go against it and will, therefore, be hampered in discharging his own function. The Magistrate must be allowed to discharge his own responsibilities uninfluenced by the views of the superior Court.

Amir v. The State P L D 1972 S C 277 ref.

Mian Muzaffar Ahmad, Advocate Supreme Court instructed by 1qbal Ahmad Qureshl, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Jariullah, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑ on‑Record for the Complainant.

Date of hearing : 11th October 1973.

This is a petition for special leave to appeal from an order of a learned Single Judge of the Lahore High Court refusing bail to the petitioners herein who are accused in a case registered under sections 148, 302/307/149, P. P. C.

The challan has already been put in and the enquiry before the Magistrate is practically complete, for, all the witnesses have been examined and cross‑examined. Only one witness remains to be further examined.

Learned counsel appearing for the petitioners, however states that in this case the learned Judge was bound to examine the evidence so far recorded by the Magistrate and to decide whether upon that material there was any reasonable ground for believing the accused persons to be guilty of such offences as are punishable with death or transportation. Indeed the learned counsel goes ego far as to say that if any doubts arise upon this evidence, these should be resolved even at this stage in favour of the accused and bail granted.

In support of this contention, he sought to rely upon an observation of this Court in the case of Amir v. The State (P L D 1972 S C 277) where towards the end it has been observed as follows :‑

"It may also be observed that even for purposes of bail, law is not to be stretched in favour of the prosecution. If any benefit of doubt arises, it must go to the accused."

That‑vas a case in which the contention raised was that the Sessions Judge concerned while refusing bail had not taken into account the fact that almost all the witnesses examined before the committing Magistrate had stated that the accused fired at the deceased after the latter had fired at one Yasin and killed him.

Be that as it may, it could not have been the intention of this Court while making the observations referred to above to lay down a rule to the effect that in every case where evidence has been led before a committing Court then in an application for bail made during the pendency of the enquiry the superior Court must examine the evidence and express an opinion as to the reliability or otherwise of the evidence adduced even at this stage.

It is the function of the commitment Court to decide whether a prima facie case has been made out or not. A superior Court while considering the question of bail should not ordinarily undertake this function and present the Magisterial Court with a decision of its own.

A Magistrate would be placed in an extremely embarrasing position in such circumstances, for, although he Is not legally bound by the views of the superior Court yet he will feel hesitant to go against it and will, there fore, be hampered in discharging his own function. In this view of the matter, we do not think that in the stage in which the commitment proceed ings are in the present case we would be justified in reviewing the evidence. The Magistrate must be allowed to discharge his own responsibilities influenced by the views of the superior Court.

We would, therefore, dismiss this petition but direct the Magistrate concerned to complete the commitment proceedings without any further delay.

Petition dismissed.

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