MUMTAZ Versus SARFARAZ

ORDER

1. DORAB PATEL, J.‑ A case was registered against the respondents under sections 302, 379, 148 and 149, P. P. C. on 1‑6‑1974 at Police Station, Batagram, District Hazara, at Abbotabad for a murder committed in broad daylight. The murder was witnessed by several eye‑witnesses, whose statements were recorded and implicated the respondents. However, no further steps were taken in the case until 27‑7‑1974. It would appear that on that date the respondents appeared before the District Magistrate, Hazara, who, after consulting the S. S. P. directed the A. C., Batagram to release the respondents on bail. Accordingly the A. C., Batagram released the respondents on bail and stated in his order that this was "as ordered by the District Magistrate, Hazara". The petitioner challenged this order in an application for cancellation of bail in the Sessions Court, Hazara, which was dismissed by An Additional Sessions Judge by his order dated 31‑10‑1974. The learned additional Sessions Judge, pointed out in his order that there was some delay in the lodging of the F. I. R. and with reference to the impugned order he observed that the "Accused was then bailed out by the A. C., Batagram on the advice of the District Magistrate. Nothing was brought out as to why District Magistrate directed so". Aggrieved by this order, the petitioner filed an application for the cancellation of bail in the Peshawar High Court, but as this application was dismissed, he has filed this petition on the ground that the High Court's order is based on a misconstruction of section 497, Cr. P. C.

2. As the occurrence had taken place for more years ago, we inquired whether committal proceedings had been completed and the date when the challan had been filed. We had also given notice to the Advocate‑General of the N.‑W. F. P. and he informed us that the challan must have been filed by December, 1975. The delay in submitting the challan is shocking and no explanation is available for this delay. In this background, Mr. Zafar Mahmood's contention is that as the prosecution case is supported by the statements of several eye‑witnesses, the impugned order is based on a miscon struction of section 497, Cr. P. C. However, according to the learned Single Judge, there was delay in recording the F. I. R. and two of the eye‑witnesses were criticized as interested witnesses, whilst the statements of the other eye witnesses were criticised on the ground of discrepancies in the statements relied upon by the prosecution. Mr. Zafar Mahmood's contention was that there was an explanation for the delay and similarly of the alleged discrepan cies and pleas on which the statements of the witnesses were challenged by the respondents. But the learned counsel's main submission was that in rejecting the bait application. the learned Single Judge had made observations which would prejudice tree case of the prosecution. This contention required exami nation and we have accordingly granted leave, and converted the petition into an appeal.

3. We have been informed by the learned Assistant Advocate‑General that after the recent abolition of the inquiry proceedings under Chapter XVIII of the Code of Criminal Procedure the case has been sent to an Additional Sessions Judge, Hazara for trial.

4. The appeal is disposed of with the direction that the Additional Sessions Judge shall hear the case expeditiously and that if after having examined the eye‑witnesses he found that there were reasonable grounds for believing that the accused had committed a non‑bailable offence, he would be free to cancel the bail of the respondent if he think it advisable.

5. Order accordingly.