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Criminal Miscellaneous No. 185/H of 1975, decided on 3rd April 1975.

Criminal Procedure Code (V of 1898)‑

‑‑‑ S. 497‑Bail‑Superior Courts refusing bail to accused on facts of case‑Trying Magistrate left with no option but to remand such accused to custody‑Contention that Magistrate having in first instance issued summonses against accused could not .send them to jail, held, not sound. [pp. 1390, 1391]A & B

Riyasat Ali for Petitioner.

Farooq A. Hasan, Asstt. A.‑G. with Mahmoodul Hasan Qureshi for the State.

This petition for habeas corpus has; been moved in the following circum stances: In an F. I. R. lodged on 10th of July 1974, at Police Station Musakhel in the District of Mianwali,. Abdus Sattar first informant; named seven persons for the crime of the murder of Saifullah. There was a grim background of enmity between the parties and the story is that Saifullah deceased was riding a mare when he was fired at. The police during the investigation found that the seven persons named in the F. I. R. were innocent and the murder had actually been manoeuvred by Abdus Sattar first informant himself who happened to be the maternal uncle of the deceased. The case was got cancelled by the police and a case was registered against Abdus Sattar. Mst. Wazir Khatun the mother of Saifullah deceased then filed a complaint under section 302/367/209, P. P. C. and the learned Magistrate Mr. Javed Gul, issued summons for the appearance of the accused. The accused approacL:d the Sessions Judge by two separate applications for grant of bail before arrest which were dismissed after discussion on merits. They thereafter approached the High Court for grant of bail but their application was again dismissed by order dated 17th of March 1975, passed in Cr. Misc. No. 948/B of 1975. Some of the accused appeared before the Magistrate on 8th of March 1975. By then, intimation had been received by the Magistrate that the bail had been refused to Ahmad Khan, Abdur Rehman, Umar Khan, Khaa Mir Khan and Habibullah son of Rabnawaz. The Magistrate directed that these accused be arrested and sent to judicial lock‑up. Amir Qalam Khan and Habibullah son of Abbas Khan did not appear and the learned Magistrate issued warrants of arrest against them and also issued notice to their sureties. Habibullah appeared on 12th of March 1975, in custody. Amir Qalam did not appear before the learned Magistrate and moved the present habeas corpus petition.

2. The grounds urged for the discharge of the detenus was that the learned Magistrate having in the fist instance exercised his discretion by issuing summons against the seven accused who have been named as detenus in _ this application, could not have sent them to jail. It is further submitted: that" even if the superior Courts bad refused bail to the detenus the, learned Magistrate could not have changed his order.

3. It is submitted on behalf of the State that the offence being that of murder the learned Magistrate exercised his discretion in an improper manner issuing summons against the accused against whom he had found a prima facie case under section 302, P. P. C. It is further urged that the question of issuance of process is quite distinct from the question of grant of bail under section 497, Cr. P. C. after an accused appears before a magistrate. The detenus had been summoned for the commission of an offence punishable with death or imprisonment for life and the Magistrate after the rejection of their bail plea did nothing illegal in remanding them to custody. When he passed his initial order no bail application was moved Before. The learned counsel for the petitioner tells me that later on, some of the detenus had moved the learned Magistrate for bail but their bail application was dismissed.

4. The superior Courts having refused bail to the detenus on the fact of the case, there was no alternative for the Magistrate but to remand them to custody. There is no illegality attached either to the exercise of his power or to the detention of the detenus. This petition is, therefore, dismissed. The records brought to Court shall be returned.

S. A. H. Petition dismissed.

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