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Criminal Miscellaneous No. 1533/B of 1973, decided on 24th May 1973.

---S. 497(5) ‑ Bail, cancellation of ‑ [Theft case] ‑ Accused granted bail by Duty Magistrate on basis of F. I. R. produced before him-- No Police Officer present to explain progress of investigation‑Allega tions that accused was a previous convict and involved in many cases pending in Courts, but such cases not brought on record‑Order, held, legally justified in circumstances.‑[Bail].

---S. 497(5)‑Bail, cancellation of‑Impugned order of bail passed by Magistrate‑Court of Session, held, should be moved in first instance. [Bail].

‑‑ S. 497(5)‑Bail, cancellation of‑[Theft case] ‑ Enmity between parties existing at time of occurrence‑Accused attributed a secondary role in occurrence‑Interference with bail order declined, in circum stances.‑[Bail].

Ch. Mushtaq Ahmad Masud for Petitioner.

Rafiq Ahmad Bajwa for Respondents.

Muhammad Akram for the State.

A case under section 382, P. P. C. was registered at the instance of the tenant on 3‑3‑1973 against the respondent‑landlords Haji Feroz Din and his son Salahuddin. The arrest of the named accused could not take place 'because both were admitted to pre‑arrest bail. Haji Feroz Din was arrested on 7‑4‑1973 when the order of his bail before arrest was not extended. On Sunday, the 8th of April 1973, when the remand papers were produced before the Duty Magistrate he admitted him to bail. The complainant has now moved an application attacking both these orders whereby the two accused named by him m the report were admitted to bail.

2. The cases of the two respondents are distinct and have been disposed of by two separate orders and have to be separately dealt with in this order.

3. As regards the bail of Haji Feroz Din it has been urged that not only he was a previous convict but that the order admitting him to bail was passed without notice to State and there were numerous cases pending against him and in the ordinary course the matter should have been taken note of not by the Duty Magistrate but by the Ilaqa Magistrate.

4. A report was called for from the Magistrate and that report read with the record of the case on which the bail order was passed by the Magistrate shows that a Police Constable. who could not be the Investigating Officer, or possessed of the record relating to the investigation of the case, produced a copy of the F. I. R along with a written request by the Investi gating Officer for obtaining remand. He was not in a position to answer any question with regard to investigation. In the absence of any material except the F. I. R. the Magistrate was legally justified in exercising hi, discretion under section 497 (1), Cr. P. C. as the offences for which the respondents are charged was not punishable with transportation or death. It otherwise the record has been complete, and the presentation of the accused alongwith the record had been by an officer able to answer questions relating to investigation, it could then be said that notice should have ordinarily issued but on the facts of this case the want of notice cannot affect the exercise of power possessed by the Magistrate under section 497 (1), Cr. P. C.

5. An effort has been made, by referring to the Police Station record to show that this respondent is a previous convict, facing trial in similar other cases and police recorded suspicion against him in many other cases which resulted in discharge. These facts do not form part of the record of this case todate nor were at any stage earlier to this brought before or scrutinized by the Court. It should ordinarily form part of the record of investigation which it does not. The facts are all admittedly antecedent to his admission to bail. If there are events subsequent to this which do not justify the continuance of the bail order then in respect of this accused the Sessions Court should have been moved first under section 497 (5), Cr. P. C.

6. As regards the other accused he is said to be an educated person, attributed to a secondary role in the occurrence and if at all the enmity between the parties was in existence as they happened to be landlord and tenant, the order of pre‑arrest bail would not appear to be offensive to require interference by this Court.

7. The petition in respect of both in dismissed. Needless to say, res pondents shall make themselves available for progress of the investigation as and when required.

Petition dismissed.

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