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Criminal Miscellaneous No. 474‑B/C of 1974/BWP, decided on 16th January 1975.

----S. 497(5), (I)‑Bail, cancellation of ‑‑ Case falling under S. 497(1)‑Grant of bail only an exception‑Failure to mention name of unknown person in F. I. R. or identification of accused in parade held 10/12 days after occurrence‑Not invariably grounds for acquittal or grant of bail.‑[Bail].

‑‑ S. 497(5)‑Bail, cancellation of‑Accused respondent, on bail for some nine months but not shown to have abused their liberty by tampering with record on evidence‑No useful purpose, held, likely to be served by taking respondents into custody Bail, held further, cannot be cancelled for enabling prosecution to use coercive methods for effecting recovery‑‑[ Bail].

Farrukh Mahmood for Petitioner.

A. R. Tayyab for Respondent No. 1.

M. M. Bhatti for Respondent. No. 2.

G. M. Bodla for the State.

This is an application under section 497 (5), Cr. P. C. by Allah Jiwaya complainant for cancellation of bail of Muhammad Aslam and Ata Muhammad, respondents who are accused of offence under section 458, P. P. C. The respondents were allowed bail by Mr. Ch. Muhammad Bakhsh, Magistrate with Section :0 Powers, Bahawalpur on 22‑3‑1974. Two applications for cancellation of bail of the respondents were tiled separately by the Superintendent of Police, 13ahawalpur and Allah Jiwaya complainant and were disposed of by one judgment passed by the learned Sessions Judge, Bahawalpur on 24‑5‑1974, whereby rejecting both. the applications, he refused to cancel the bail of the respondents.

2. An F. I. R. was registered at Police Station Nowshera Jadid, District Bahawalpur on 3‑3‑1974, at 7‑00 am. at the instance of Allah Jiwaya, petitioner. It was alleged that on the previous night between 2nd and 3rd of March 1974, six persons committed lurking house trespass in the house of the complainant after preparing themselves for causing hurt, one of them caused fire‑arm injury with gun to Ghulam Haider, brother of the complainant and they also committed theft of some jewellery. Two of them entered the room with an iron rod and a laths. Both of them were captured at the spot and disclosed their names and Muhammad Usman and Bakhshu. There were two other in the ihata. One of them carried a revolver while the other had a gun. The accused with gun fired which hit and caused injury to Ghulam Haider, brother of the complainant Both of them along with two others who were outside the house succeeded in escaping. The names of the two persons in the ihata were given to the complainant by Muhammad Usman and Bakhshu as Muhammad Aslam respondent with revolver and Ata Muhammad respondent with gun. The names of the two captured persons at the spot as also the names of the respondents as given by Muhammad Usman and Bakhshu were mentioned in the F. I. R. The respondents were arrested on 11‑3‑1971, and were directly sent to judicial lock‑up since they were to be identified in the identification parade. The identification parade was held in Bahawalpur Jail on 22‑3‑1974, when all the four eye‑witnesses including complainant participated in the parade and identified both respondents. On the same day, the learned trial Magistrate released the respondents on bail. Application by the complainant for cancellation of bail of the respondents was moved on 8‑4‑1974 but was rejected as mentioned above.

3. The learned counsel for the complainant‑petitioner has argued that while allowing bail to the respondents, the learned Magistrate did not consciously consider that the offence alleged against the respondents was under section 458, P. P. C. punishable with fourteen years' R. I. and was covered by section 497(1), Cr. P. C. He has further argued that the prosecution did not have opportunity to effect recoveries of the weapons of offence and stolen property from the respondents because immediately after identification parade custody of the respondents was not given to the investigating agency and respondents were enlarged on bail. The learned counsel for the State supports the contentions raised by the learned counsel for the petitioner and submits that bail of the respondents be cancelled.

Mr. M. M. Bhatti, who has appeared for Ata Muhammad, respondent, has opposed the cancellation of bail of his client while Mr. A. R. Tayyeb, Advocate who appears for Muhammad Aslam, respondent, supports him. The contentions of the learned counsel for tax respondents, is that the names of the respondents were not known to complainant were so mentioned in the F. I. R. at the instance of the two co-accused who were captured at the spot, that the identification parade of the two respondents was held after twelve days and the respondents had previously been shown to the witnesses who participated in the parade. It is further urged that on the facts of this case, no offence under section 458, P. P. C. is constituted and that the only allegation is that Ata Muhammad, respondent, was carrying gun. It is also urged that there is a cross version of the case in the private complaint filed by one Allah Noor, that both the accused who were captured at the spot have been released on bail by the learned trial Magistrate and that two other persons alleged to be standing outside the house of the complainant have not yet been arrested. Mr. A. R., Tayyeb has also urged that the learned trial Magistrate allowed the bail after taping into consideration the facts of the case and his failure to mention the section under which the offence was committed or that it fell within section 497 (1), Cr. P. C. is not an illegality. He has further submitted that no useful purpose will be served by taking the respondents in custody for the purpose of recovery because no recovery was effected from them even when they participated and joined the investigation after being released on bail and that the respondents have not misused the concession of bail so far as the proceedings before the trial Court are concerned.

4. The bail was allowed to the respondents by the learned Magistrate on the ground that the respondents bad not been directly named in the F. I. R. because names had been mentioned therein at the instance of their co‑accused and that the identification parade was held after 10/12 days of their arrest. The ground that there was a cross version was not urged before the learned trial Magistrate. The learned Sessions Judge was of the opinion that there are two versions of the case and till such time that it is found as to which version is correct it cannot be said that there are reasonable grounds for believing that respondents have committed offence under section 458, P. P. C. and that cross version prima pacie appeared plausible. He was also of the vices that sine names of the respondents had not been mentioned by the complainant himself in the F. I. R. the respondents were entitled to the bail.

5. The respondents as well as their co‑accused were not previously known to the complainant or the prosecution witnesses. If Muhammad Usman and Bakhshu co‑accused had not been captured at the spot, the names of the respondents would have not come to the knowledge of the complainant and would not have appeared in the F. I. R. and instead tine description of the accused might have been given. The mention of the names of the respondents in the F. I. R. at the instance of the co‑accused who had been arrested at the spot, is a circumstance that the two persons in the ihata carrying a gun and revolver was Ata Muhammad and Muhammad Aslam, respondents which circumstances is corroborated by their identifica tion in the parade held on 22‑3‑1974. The respondents were arrested on 11‑3‑1974, were directly sent to jail and correctly picked up by all the four prosecution witnesses. The objection of the respondents that they were previously known to those witness or were shown to them is not supported by any evidence on record and can be gone into by the trial Court, As at present, according to the allegation of the prosecution, the respondents participated and carried fire‑arms when Ata Muhammad fired his gun and caused injuries to Ghulam Haider, brother of the complainant. The learned Magistrate did not take into consideration that it was a case falling under section 497 (1), Cr. P. C. and grant of bail was only an exception. Even otherwise the failure to mention name of unknown person in the F. I. R. A or identification of the accused in a parade held 10/12 days after the occurrence have not invariably been a ground for acquittal or for the grant of bail. This is a case in which sufficient opportunity was not available with the prosecution to investigate. There was no cross version before the learned Magistrate at the time he allowed bail. The cross version considered to be a good ground for not cancelling the bail by the learned Sessions Judge was introduced later on through a private complaint filed by one Allah Noor, on 15‑4‑1974. The challan has already been filed in the Court. There is no delay in the proceedings of the trial and in any case no delay is attributable exclusively to the prosecution. The points urged by the learned counsel for the respondents mostly relate to the merits of the case and can be gone into only by the trial Court.

6. The respondents have remained on bail for about nine months now but it is not pointed out to me that they abused their liberty pending trial by tampering with the record or by interfering with the prosecution evidence in any other manner. Muhammad Usman and Bakhshu accused who were B arrested at the spot, have been released on bail in the meantime. No useful purpose will be served by taking the respondents into custody at this stage and the bail cannot be cancelled for the purpose of enabling the prosecution to use coercive method in the matter of effecting recovery.

7. Taking into consideration the circumstances of the case, I am of the view that it be left to the learned trial Magistrate to consider the question of cancellation of bail after he has recorded some evidence or at a stage when he considers it fit to do so. This petition for cancellation of bail is disposed of with these observations.

Petition dismissed.

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