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Criminal Bail Application No. 1043 of 1985, decided on 30th September 1985.

---‑S. 497‑‑Penal Code (XLV of 1860), Ss. 436, 435, 427, 147 & 148‑‑Bail, refusal of‑‑Accused making application for bail after three months of dismissal of first bail application on merits‑‑Accused challaned under Ss. 436, 435, 427, 147 & 148, P.P.C.‑‑Case not proceeded and evidence not brought on record‑‑High Court in previous order coming to conclusion that prima facie case under S. 436, P.P.C. was made out‑‑Premature at bail stage to say offence fell under S. 435, P.P.C.‑‑Only Tentative assessment of case that at bail stage was to be made‑‑No additional ground found for grant of bail‑‑Bail refused in circumstances.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), Ss. 436, 435, 147, 148 & 427‑‑Bail, refusal of‑‑Bail sought on basis of affidavits of some witnesses and Mohalla People‑‑Affidavits, held, were hardly to be considered at bail stage‑‑Bail refused.

P L D 1984 Kar. 223 and 1983 S C M R 15 ref.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), Ss. 436, 435, 147, 148 & 427‑‑Bail, refusal of‑‑Bail sought on ground that some of witnesses were not believed against co‑accused during investigation‑‑Benefit given by‑police to co‑accused, held, could not be used by other accused for purpose of bail‑‑Bail refused.

P L D 1962 Lah. 391 ref.

1982 S C M R 257 rel.

A.M. Naqvi for Applicants.

Abdul Ghafoor Mangi, Asstt. A.‑G. for the State.

The bail application bearing Criminal Bail No. 558 of 1985 of Muhammad Jamil and Muhammad Ghani was dismissed by this Court on 12‑6‑1985 on merits.

The applicants once again repeated their request for bail and the contention of the learned counsel Mr. A.M. Naqvi appearing in this case for the applicants is that some of the prosecution witnesses have filed affidavits and further that from the investigation it is clear that offence will fall under section 435, P.P.C. which is punishable with seven years only. He has also argued that some of the witnesses were not believed against the co‑accused during the investigation. Therefore applicants are entitled to bail. He has cited P L D 1962 Lah. 391.

Mr. Abdul Ghafoor Mangi, Assistant Advocate‑General appearing for the State has opposed the bail application and submitted that all these points were considered while deciding the previous application of the applicants and prima facie case under section 436, P.P.C. punishable with Imprisonment for life is made out.

The bail application on merits was dismissed three months ago. The case has not proceeded and evidence has not come on record. The police during investigation has challaned the applicants under sections 416, 435, 147, 148 & 427, P.P.C. and at the bail stage it is premature to say if offence falls under section 435, P.P.C. as only the tentative assessment at the bail stage is to be made. I have already observer previous order and touched all these points and came to the conclusion that prima facie case under section 436, P.P.C. is made out. On point of the affidavits filed by Mohalla Peoples it is suffice to say that at the bail stage the affidavits are hardly considered when evidence has not been recorded. On this I refer to a case reported in P L. D 1984 Kar. 223 and 1983 S C M R 15. So far the next contention of Mr. A.M. Naqvi that some of the accused were given benefit and were not challaned by the police. I refer to a case reported in 1982 S C M R 257 where it has been held that benefit given by police to co‑accused cannot be used by the other accused for the purpose of bail. I do not find any additional ground to consider for the purpose of bail. Application is dismissed. However, the trial Court is directed to give priority to this case and applicants can move application after some evidence is recorded.

H.A.K Bail refused.

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