P (PLP)

ORDER.‑On the 28th of June, 1950, at 9‑30 p. m. a report was made by one Samiullah in Badaber Police Station to the effect that at about evening time the same day he was sitting in his hujra along with Hasham, Rckhan, and Mohibullah, when he was attacked by his co‑villagers, Qasim and Sher Ali, sons of Luqman, and Amirzada and Rashid, sons of Noor Mohd. It was alleged that all the four culprits had come to the hujra armed with rifles and had started firing. Samiullah and others ran towards their houses, and while they were so running they were still being fired at. Hasham was hit on the head, but the rest escaped unhurt. Hasham died in the hospital the same night at about 11 P. M. and a case under section 302 Penal Code was registered against the four persons mentioned in the report, who were arrested and detained in the lock‑up. On the 15th of August, 1950, an application was made on their behalf to the Magistrate, Ilaqa that they should be released on bail. The learned Magistrate sent this application to the Dy. S. P., who reported that the case was judicially weak and will ultimately be sent up with a recommendation for Jirga trial. He therefore did not object to the accused being released on bail. The learned Magis trate on the 25th of August 1950, ordered the release of the accused on bail of Rs. 3000 each with three sureties. Mr. S. N. Khan on the 31 of August, 1950, moved the learned Sessions Judge, Peshawar under subsection (5) of section 497 Criminal Procedure Code for the cancellation of the order of the Magistrate, and causing the four accused mentioned in the report to be rearrested and committed to custody. The learned Sessions judge by his order dated 15th September 1950, maintained the order of the learned Magistrate with regard to Amirzada and Rashid, but he cancelled it in respect of Qasim and Sher Ali, who were remanded to custody. Qasim and Sher Ali have now made an application under section 498 Criminal Procedure Code to this Court, and they request that they should be released on bail. The learned Sessions judge, Peshawar, while committing the accused‑petitioners to custody, observed in his order that the fatal shots had been attributed to Sher Ali and Qasim and that the other two accused, namely, Rashid and Amirzada were assigned a minor role of having fired ineffective shots. The only document which the learned Sessions judge could have looked at and in all probability did look at was the F. I. R., in which all the four accused Were stated to have simultaneously fired as a consequence of which Hasham deceased was hit on the head. There is nothing else on the record to justify the conclusion arrived at by the learned Sessions judge that the two petitioners were singled out for having fired the fatal shots. As the record stands I do not see any difference between the case of Amirzada and Rashid and that of Qasim and Sher Ali. The learned Advocate‑General has stated that the learned Magistrate was wrong in sending the bail application to the Dy. S‑P. for opinion, and that after sending it on to the Dy. S. P. he was wrong in acting upon the rejiort of the Dy. S. P. and releas ing all the accused on bail without giving any reason. It is true that the learned Magistrate was not justified in sending the bail application to the Dy. S. P. for his report, but this is a default which is not committed by the Magistrate for the first time in this case. It is the common practice of the Magistrates to send the bail applications to the Police for 'report, and ultimately act upon such reports. The District Magistrate or the Provincial Government, have so far taken no step to stop this illegal practice. The District Magistrates of all the six Districts in the North‑West Frontier Province must take notice of the fact that the practice of the Magistrates‑of sending the bail applications and for the matter of that any other judicial application to the Police for report is absolutely illegal and against all the canons of criminal jurisprudence, and the sooner this practice is stopped, the better it will be. In the case before me Qasim and Sher Ali are roped in just as Amirzada and Rashid, and since the latter two have been released on bail, I see no reason why should Qasim and Sher Ali be kept in the lock‑up. I consequently accept this application, and order that Qasim and Sher Ali be released on bail, on furnishing security in a sum of Rs. 3,000 each with three sureties apiece. K. M. A. Petition accepted.