P L D 1961 (W (PLP)

M. Mushtag Hussain, Additional Advocate General, West Pakistan for Respondent. Date of hearing : 28th July 1961. This order will govern not only this petition but Cr. M. 1305 of 1961 as well because the two petitions arise out of the same case. There is one petitioner in this petition but four in the other and all five of them were committed by a Magistrate of com petent jurisdiction to stand trial before the Sessions Court, Lyallpur for offences one of which is that of murder.

2. It is not usual to grant bail in a case in which a Court of competent jurisdiction has found that a prima facie case is made out against an accused person that he was concerned in an offence which can be tried by a Court of Session and nothing' has been said during arguments which would make this case assume a character different from any other case of murder committed by a Magistrate to the Court of Session for trial. Learned counsel for the petitioner contended that the evidence did not justify the order of commitment while the learned counsel for the State raised the contrary contention. If I examines,' these rival conten tions for the purposes of these petitioners the result would be that the case of one of the parties will get prejudiced because though the trial Court may not be bound by any remarks it at might be made in these petitions, it is unlikely that they will not have, some effect on the views of the trial Court and I am consequently refraining from saying anything regarding the merits of the case which has yet to be tried by the Sessions Court. That the High Court has the power to grant bail even in a case in which a person has been committed to stand trial for an offence which can be visited with the extreme penalty is hardly open to question but the High Court will very rarely enter into the merits of a case for the purposes of determining whether or not a person whose trial has to be held by a Court subordinate to the High Court should be enlarged on bail. !n a case in which bail is prayed for on grounds other than the weakness of the prosecution case A against the accused the High Court will examine in detail the grounds on which bail is prayed for but will ordinarily avoid this examination where, as in this case, the only ground urged is that the evidence is too weak and the case will ultimately fail.

3. Learned counsel for the petitioners urged that even if the evidence be held to have established that all the five peti tioners had participated in the offence for which they have to be tried the case will not be one of murder and in this connection he placed reliance on some parts of the statement of the doctor who conducted the post‑mortem examination on the dead body of the victim. Here again the point to be determined is one of fact because the question whether or not the ingredients of an offence are established is essentially one of fact.

4. In the end it was prayed by learned counsel for the petitioners that the trial Court be directed to hear the case at a very early date. I find myself disinclined to give that direction but will only say that the trial should take place in its turn.

5. I find from the record that the learned Sessions Judge, Lyallpur, who I presume will hear the case, has recorded a note on the 21st July 1961 that the order of commitment was defetive in certain respects. Whether the defects mentioned by the learned Sessions Judge exist has not been verified by me but in order to avoid any unnecessary delay in the case being taken up I consider it necessary to say that before giving his finding on the defects mentioned in his note dated the 21st July 1961 the learned Sessions Judge should consider whether the provisions of law contained in sections 226 and 537 of the Code of Criminal Procedure could not be made use of to cure 'those defects.

6. In view of what I have said above I dismiss both the petitions for bail. The record will be returned to the lower Court without any delay. K. B. A. Petitions dismissed.