P L D 1971 Lahore 732 (PLP)

Muhammad Shafiq v. Muhammad Hanif and another 1970 SCMR143rel. D. M. Arby for Petitioner A case was registered under section 307, P. P. C. at Police Station Taunsa, with regard to the attempted murder of Shahru against the petitioner and one Muhammad Ibrahim. On the death of Shahru, the offence was changed into one under section 302 read with section 34 of the Pakistan Penal Code. The matter was investigated and the petitioner was held to be guilty, but on an application, preferred by Nizam Din, Mr. Ilam‑ud‑Din Qureshi re‑investigated it. He found that the petitioner was innocent. He was placed in column No.

2. The Court, however, did not agree with the police report and by order dated 9th July 1970, summoned him as an accused. The petitioner then applied to the Sessions Judge, Dera Ghazi Khan, for grant of bail. His petition was heard by the District Magistrate, during the absence of the Sessions Judge on 12th August 1969, and he was admitted to bail. He remained on bail throughout the commitment proceedings when on 7th January 1971, by the impugned order, his bail was impliedly cancelled, inasmuch, as he was taken into custody, when he was committed to the Court of Sessions to stand trial on a charge of murder, along with his co‑accused. The petitioner has approached this Court by way of the instant revision petition challenging the order of the committing Magistrate. The committing Magistrate in paragraph 6 of his order observed:‑ "The accused Abdul Aziz was on bail, according to the interim orders on the file but the order of his bond and bail bond were not traceable there. The accused Abdul Aziz or his counsel could not name the Court from which he was bailed out. He has, therefore, been taken into custody at the time of commitment proceedings.

2. It is submitted by the learned counsel for the petitioner that the aforesaid order of the committing Magistrate is illegal and without lawful authority. He maintains, that the committing Magistrate has got the power to cancel the bail of an accused person under section 220 of the Code of Criminal Procedure, but he can do so only in two cases, viz. (i) where the bail was granted by the Magistrate himself and (ii) when such authority had been conferred on him by the Court of Sessions and the High Court. It is submitted that in the instant case, the bail was not granted by the Magistrate, nor was any direction given to him by the District Magistrate, when he granted bail to the petitioner on 12th August 1969. Therefore, under no circumstances, could the Magistrate cancel the bail and commit him to custody. So far as the aforesaid contention is concerned, there is no dispute about It. The Magistrate has no authority to cancel a bail, which is not granted by him or when it is granted either by the Sessions Judge or by the High Court, no option has been given to him to cancel it, or, the happenings of certain events, such as in case of a trial, when the accused has been charge‑sheet, or in the case of commitment proceedings, when the accused is committed. There is also no dispute that in the case before me, when the Sessions Judge granted bail to the petitioner, it was an unqualified order. Ordinarily, therefore, the Magistrate could not cancel the bail. However, it is not denied that the petitioner has been committed on charge of murder, which is an offence punishable with death or transportation for life. Under normal circumstances, therefore, the petitioner when committed, would not be entitled to remain on bail, as was observed by their Lordships of the Supreme Court in the case of Muhammad Shafiq v. Muhammad Hanif and another (1970 S C M R 143). Their Lordships after discussing a number of cases, especially Nadara v. Jamait Khan and another (P L D 1968 S C 310), Ghulam Farid and another v. The State (1969 S C M R 90) and Ahmad Bakhsh v. The State (1969 S C M R 266) observed, that commitment is by itself sufficient to show that a prima facie case exists. It was further observed, that where a prima facie case upon the taking of evidence is found to exist, that is also ordinarily sufficient for holding that there are reasonable grounds for believing that the person charged with the offence is guilty. In view of the aforesaid weighty observations of their Lordships of the Supreme Court, I am of the opinion that though no option had been given to the committing Magistrate, by the Sessions Judge to cancel the bail of the petitioner, in case he was committed to stand trial on charge of murder, and he thus could not cancel it himself, I would, A while dismissing this revision petition, uphold the order of the Magistrate by cancelling the bail granted to the petitioner by the District Magistrate as Sessions Judge because the petitioner has been committed to the Court of Sessions, under section 302 read with section 34 of the Pakistan Penal Code. The revision petition is dismissed in limine. Petition dismissed.