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Criminal Appeal No. 23 of 1975 in Petition for Special Leave to Appea' No. 15‑P of 1975, decided on 9th May 1975.

(On appeal from the Judgment of Peshawar High Court dated 17‑1‑1975 in Criminal Miscellaneous Bail Application No. 492 of 1974).

‑‑ S. 498 read with Constitution of Pakistan (1973), Art. 185 Accused petitioners claiming to have been in police custody since one day before day of occurrence‑S. H. O. Police admitting before Magistrate that accused were under arrest when he showed them as arrested in present case‑Petitioners, in fact, produced in hand. Cuff under escort of two constables before Ilaqa Magistrate on next day of occurrence from lock up of another town Conclusion proceedings inordinately delayed‑Case, held, tit for grant of bail ‑ 1'etition converted into appeal and petitioners directed to be released on bail‑.Magistrate could, however, cancel bail under law, if considered necessary on committal to Sessions Court‑‑Petitioners directed to cooperate with Investigating Agency and on failure Investigating Agency authorised to apply for cancellation of bail.

M. Qualm Imam, Advocate‑an‑‑Record for Petitioners.

Nemo for the State.

Date of hearing : 9th May 1975.

This petition, from an order of a learned Single Judge of the Peshawar High Court refusing bail to the two petitioners herein, came up for consideration on the 21st March 1975. It was then contended before us that the challan was put in as long as the 12th September 1973 but the commitment proceedings were still dragging on. The learned counsel for the State then explained that the delay had been due to the fact that four of the accused were absconding. We had then pointed out that there was no reason as to why their cases could not be separated from the cases of the accused absconding and, therefore, the commitment proceedings should continue. We were then given an assurance from the learned counsel for the State that the commitment proceedings will be disposed of without any further delay. We, accordingly, adjourned this matter to the 4th April, 1975. It has come up for hearing again today but the learned counsel for the State is not present. The learned counsel appearing in support of this petition states that only three more P. Ws. had been examined and proceedings are still pending.

The two petitioners before us have sought bail on the ground that they had been falsely implicated. They have set up a plea of alibi on the basis of police record to show that they had actually been taken under arrest on the. 10th of August 1973, and that the3 could not have been present in the incident which had occurred on the t Ith August 1973, at 6‑30 p. m. in the bazar of Hoti. The S. H. O. of the Police Station, A Division, Mardan, had also admitted before the Magistrate that the two accused were under arrest when he showed them as arrested it this case. In fact, they were produced in hand‑cuffs under escort of two constables before the 'Ilaqa Magistrate' on the 11th August 1973, from the lock‑up of the Saddar Police Station, Hashtnagri, Peshawar.

In view of the inordinate delay in the conclusion of these proceedings, we are satisfied that this is a fit case in which bail should be granted. We, accordingly. convert this petition into an appeal, allow this appeal and direct that the petitioners be enlarged on bail in the sum of Rs.10,000 each with two sureties of the like amount to the satisfaction of the D. M., Mardan.

This does not mean that in the event of the petitioners being committed to trial, the Magistrate will not have the power to deal with them in accordance with law and cancel their bails, if considered necessary. The petitioners will also during the period they are on bail cooperate with the investigating Agency and if they fail to do so, the Investigating Agency will also have the right to apply for the cancellation of the bail.

Bail allowed.

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