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Criminal Miscellaneous No. 1607-B of 1985, decided on 18th July, 1985.

Criminal Procedure Code (V of 1898)--

---S. 497--Penal Code (XLV of 1860) , Ss.302, 307 & 109/148/149--Bail, refusal of--Accused found innocent by Police and consequently discharged by Magistrate--- Accused having been found guilty in subsequent investigation was challaned--Case fixed for trial--Opinion by Court on merits of case or on plea that subsequent challan was not competent against accused without formal withdrawal of earlier order of discharge not deemed expedient at such stage--Bail refused with direction to trial Court for expeditious trial.

Sh. Naveed Shahryar for Petitioner

Ch. Muhammad Yamin for the Complainant,

Zulfiqar Haider, for the State.

Date of hearing: 16th July, 1985.

Naseeb Khan (or Naseer Khan) petitioner who is involved in a case under section 302/307/109/148/149, P.P.C. arising out of F. I. R. No. 238, dated 2-6-1984, registered at Police Station Sargodha (City) has sought to be released on bail.

2. Previously, the petitioner filed bail application (Criminal Miscellaneous 1345-B of 1985) before this Court but the same was dismissed on 18-6-1985 on the ground that the trial was to commence shortly.

3. It has been submitted in the present bail application that in fact, trial was not fixed for 27-6-1985. The case was fixed only to await the result of writ petition filed in the High Court. It has also been urged that the petitioner was declared innocent as a result of earlier investigation conducted by the local police and as a result thereof he was got discharged by the learned Illaqa Magistrate. It has been averred that subsequently the case was re-investigated by the Crime Branch and pursuant to subsequent investigation, fresh challan has been submitted holding the accused guilty and placing his name in column No.3. It has thus been urged that the order passed by the Illaqa Magistrate whereby the petitioner has earlier been discharged still holds the field. The said order amounts to his acquittal. No fresh challan against the petitioner placing his name in column No.3 was, therefore, competent. It has also been argued that the case of the petitioner is that of further enquiry falling within the purview of subsection (2) of section 497, Cr.P.C.

4. It is an admitted fact that the complainant party has withdrawn their application on account of which order to be passed. by this Court in Writ Petition was being awaited. After the withdrawal of the said application, the case has once been fixed for trial before the learned trial Court, but on the maid date of hearing, the learned counsel for the petitioner and his co-accused sought an adjournment on account of his professional engagements before the Military Court. The case is again fixed for trial.

5. Since the case is. fixed for trial, " is not deemed expedient to express any opinion on the merits of the case or on the plea that subsequent challan was not competent against the petitioner without the formal withdrawal of the earlier order of his discharge. In this view of the matter, the request of .the petitioner for bail is declined. The trial Court is, however, directed to conclude the trial expeditiously by hearing the case from day to day.

H.A.K.

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