P L D 1965 (W (PLP)

2. The Enquiry Magistrate by his order dated 23‑1‑64, allowed bail to Mir Abdullah Shah and Mir Hassan Shah respondents on furnishing bail bonds in the sum of Rs. 10,000 with two sureties each. On 6th February 1964, the Enquiry Magistrate after framing charges against the respondents under sections 302/34 and 307/34, P. P. C. committed them to the Court of Sessions without caring to cancel the bail of Mir Abdullah Shah and Mir Hassan Shah.

3. Mir Adat Shah and his son Mir Musalak Shah respon dents were allowed bail by Mr. Abdul Khaliq Khan, Additional Sessions Judge, Bannu by his order dated 13‑2‑64, in the sum of Rs. 10,000 each with two sureties. The reason which prevailed with the Additional Sessions Judge for admitting them to bail were . . . "there is a cross‑case to this case. Accused Mir Adat Shah has got injury on his person caused with sharp edged weapon, the question of self‑defence is involved."

4. Sher Ajam Shah has moved an application for cancelling of the bail of the respondents.

5. After hearing learned counsel for the parties and Addi tional Advocate‑General for the State, I have formed the opinion that the order of the Committing Court in not cancelling the bail granted to two respondents and taking them in custody after he had framed charges against them and committed them to the Court of Sessions and the order of the learned Additional Sessions Judge in admitting the other two respondents, namely, Mir Adat Shah and Mir Musalak Shah, to bail on the mere ground that there was a cross‑case in which "the question of self‑defence is involved," cannot be sustained. As soon as the inquiry Magistrate frames charges and commits the accused to the Court of Sessions to stand trial for non‑bailable offences which are punishable with death or transportation for life he is rendered functus officio to allow bail to the accused and in case he has already enlarged some of the accused on bail he is bound to cancel their bail and take them into custody unless and until the accused have been admitted to bail under the orders of the Sessions Judge or the High Court. The compelling reason for adopting such a course is that when a Magistrate commits the accused persons on the charge of non‑bailable offence punishable with death or transportation for life it cannot be said that the said Court would have come to the conclusion "that there were no reasonable grounds to hold that the accused had committed an offence punishable with death or transportation for life." A case is committed to Sessions only when there are grounds to believe that at least there is a prima facie case against the accused. This view was approved in the decision of this Court in Muhammad Ishaq v. Farman Shah and another (P L D 19964 Pesh 58.).

6. With regard to the order of the Additional Sessions Judge allowing bail to the other two respondents under section 497, Cr. P. C. his powers to admit an accused to bail for non‑bailable offences which are punishable with death or transportation for life are restricted to those cases "where there are no reasonable grounds for believing that the accused has committed a non‑bailable offence". In other words, before an accused can be allowed bail under section 497, the Sessions Judge must be of the opinion that there are no reasonable grounds for believing that the accused has committed a non‑bailable offence. The mere fact that the accused has raised the plea of self‑defence does not perse bring about the situation for the Sessions Judge to think that there are no reasonable grounds for believing that the accused has not committed a non‑bailable offence. The Sessions Judge, however, has full discretion under the exception "to release any person under the age of sixteen years or any woman or any sick or infirm, person on bail". In the present case the Sessions Judge has not purported to act under the exception in enlarging the two respondents on bail. It was suggested that section 498, Cr. P. C., conferred a much wider power on the Sessions Judge then is conferred by sections 496 and 497 in the matter of allowing bails. There is no merit in this argument, in that section 498 is ancillary or subsidiary to sections 496 and

497. In this connection I would borrow the words of their Lordships of the Judicial Committee in Lala Jairam Das and others v. King‑Emperor (72 I A 121), in regard to section 498, which run thus:‑ "In truth, the scheme of the Chap. XXXIX is that sections 496 and 497 provide for the granting of bail to accused persons before trial and the other sections of the Chapter deal with matter ancillary or subsidiary to that provision." This view was approved by the Federal Court in The Crown v. Khushi Muhammad (P L D 1953 F.C 170). At page 176 Abdul Rashid, C. J. delivering the judgment for the Court, after reproducing some of the observations of their Lordships of the Judicial Committee in Lala Jairam Das and others v. King‑Emperor including the observation reproduced above, observed:‑ "If section 498 is ancillary or subsidiary to sections 496 and 497 it cannot be said that this section empowers the highest Court to grant bail to persons who have not been put under any restraint whatever. If this were so, the ancillary and subsi diary section would be enlarging the powers granted to the Courts under the principle sections, namely, 496 and

497. It is difficult to hold that the Legislature would embody in a subsidiary or ancillary section a provision which deals with persons other than those who fall within the purview of sections 496 and

497. If section 498 were given the wide interpretation envisaged in the case of Hidayatullah Khan section 498 would not be ancillary or subsidiary, but would be wholly independent of the powers conferred on the High Court or the Court of Sessions by sections 496 and 497." In Khalid Saigol v. The State (P L D 1962 S C 495) the Supreme Court after quoting a passage from Lala Jairam Das and others v. Emperor at page 500, observed: "We would also respectfully adopt the arguments of their Lordships of the Judicial Committee in the said case for holding that section 498 has no reference to acquitted persons, for, it is merely ancillary to sections 496 and 497."

7. I would wind up the discussion on the subject by quoting the observations of Blacker, J., in Sayed Pir Mohi‑ud‑Din Lal Bajshah v. Emperor (A I R 1938 Lah. 762). At page 763 his Lordship summed up the observation thus: "I certainly think that in a case like the present where after an exhaustive enquiry the petitioner has been committed by a competent Magistrate on grave and serious charges relating to non‑bailable offences, the High Court should not lightly enlarge him on bail."

8. Judged in the light of the principle which should govern while granting bail under sections 497 and 498 as enunciated in the authorities cited above, there was no justification for the Inquiry Magistrate for not cancelling the bail granted to two o C the respondents after he had committed the respondents to the Court of Sessions or the Additional Sessions Judge to admit the two respondents to bail. During the course of arguments S. Usman Ali Shah learned counsel for the respondents presented a Certificate of a Doctor of the District Jail, Bannu, in which he had certified Mir Abdullah Shah respondent to have remained indoor T. B. patient from 16‑1‑63 to 25‑1‑64, in Jail Hospital, Bannu. The Certificate is placed on the file and he is allowed to remain on bail already granted by the Enquiry Court in view of the fact that his case is covered by the proviso to section 497 sub section (1). The bail bonds of the other three respondents are cancelled and they are taken in custody.

9. Since the Additional Sessions Judge while admitting two of the respondents to bail has made certain remarks which are likely to be construed as an expression of opinion in regard to D the availability of the plea of right of self‑defence, I consider it fair that this case should be heard by Mr. Agha Khan Baba Khan at an early date. K. B. A.