1976 P Cr (PLP)

Sami Ullah's case P L D 1959 Kar. 159; Dost Muhammad's case 1971 P Cr. L J 885 and Muhammad Ishaque and others v. The State 1973 P Cr. L J 92 ref. Ch. Abdur Rehman Cheema for Petitioner. Muhammad Yamin for the State. Mahmood Ahmad petitioner is being prosecuted in a case under section 148/307/149., P. P. C. along with four of his co‑accused for having fired a shot at Ghulam Rasool P. W. damaging his right eye in prosecution of common object of their unlawful assembly on 18th of January, 1973. His co‑accused were released on bail by the Sessions Judge, Layallpur who bad refused this concession to him. He moved a petition in this Court fox the same which was dismissed by me on merits on 30th March, 1973 but the police had failed to submit even incomplete challan before the Court against him so far, he had consequently repeated his request urging that his detention would be wrongful in these circumstances. A notice was therefore issued directing the Investigating Officer to produce the challan papers who attended tie Court on 9th May 1973, with police tile and stated that he had submitted the challan since long. He was asked to produce the medico-legal report of the victim of this assault and his final report under section 173 of the Cr. P. C., for which he obtained an adjournment for two days. The learned counsel of the petitioner has today made a statement at the bar that the challan had not so far been put in Court. The Investigating Officer has however not appeared today and some other police officer has brought the challan papers and conceded that it was yet being completed for putting in Court. He had thereby belied the earlier statement of the investigating Officer with the result that the petitioner was being detained in judicial lock‑up without any challan having been submitted against him for the last about rive months which the learned counsel for the petitioner asserts had rendered his custody illegal. Reliance was placed by him on Sami Ullah's case (P L D 1959 Kar. 159) and followed in Dost Mohammad's case (1971 P Cr. L J 885) but it has bush dissented from by this Court in Mohammad Ishaque and others v. The Stare (1973 P Cr. L J 92).

2. In the present case in spite of the fact that the police knew since 10th April 1973, that the petitioner was protesting against his detention without the submission of any challan, they had not bothered even to put in Court incomplete challan although the investigation was almost complete.

3. There was yet another admitted factor of the case which went in his favour that four of the six accused had been declared innocent in this case by the police, which was perhaps the cause of this suspense and delay in submission of the challan.

4. In view of this regrettable situation I have no option but to admit the petitioner to bail and direct that he shall be released from custody on 14 furnishing a bond in the sum of Rs. 10,000 (Rupees Ten thousand) with one surety in. the like amount to the satisfaction of the Enquiry Magistrate. Petition allowed.