1999 PLP 1612 (MLD)

The respondents-accused (Sharif Khan and Zahid Hussain sons of Faqir Gul) stand charged with having committed offences punishable under section 302/324/148/149, P.P.C. vide: F.I.R. No.74, dated 5-6-1996 of Police Station, Kotwali, Peshawar.

2. They were released on bail by the Additional Sessions Judge (III) Peshawar (Mr. Muhammad Jamil Khan) vide: his judgment dated 26-5-1997. Not contented with the said verdict of the judgment the State has filed this petition for the cancellation of the bail granted to them, through the Advocate General.

3. Khawaja Azhar Rashid, learned Assistant Advocate-General for the petitioner and Mr. Khawaja Muhammad Khan, Advocate learned counsel for the respondents-accused present and heard. Record of the case perused carefully.

4. The learned Assistant Advocate-General for the petitioner vehemently contended that the impugned order made by the Additional Sessions Judge (III) Peshawar is not only arbitrary but is also perverse. According to him the Judge without any rhyme and reason has held that the case of the respondents-accused is that of further enquiry. He further stated that it was incumbent upon the Court to go through the record of the case carefully and to form an opinion, in the first instance, that prima facie the respondents were not connected with the commission of the offence charged with and that thereafter it could come to the conclusion that the case was that of further enquiry. The learned counsel for the petitioner submits that since the Additional Sessions Judge has failed to do, therefore, his order is liable to be set aside.

5. On the other hand, the learned counsel for the respondents-accused submits that the Additional Sessions Judge has exercised his discretion judiciously holding that the case of the respondents was that of further enquiry, therefore, this Court would not, ordinarily interfere with the same. Beside this, he submits that this petition is liable to be dismissed on the following grounds:- Firstly that the respondents-accused have not misused the concession of bail granted to them and it is for this reason that the same has not been alleged by the petitioner in his Bail Cancellation Application; Secondly, that the trial against the respondents-accused has already commenced and no useful purpose would be served to re-call the bail granted to them and Thirdly, that this Court has already released one of the co-accused on bail vide: its order dated 8-10-1997 in Cr. M. No. 774 of 1997 (Saleh v. The State) and, therefore, Keeping in view the principle of consistency in granting the bail the High Court shall not interfere by re-calling the order vide: which the respondents/accused have been released on bail.

6. Although I tend to agree with the learned counsel for the Petitioner/State that the order of the Additional Sessions Judge (III) Peshawar (Mr. Muhammad Jamil Khan) is quite unreasonable and needs to be set aside but the fact, that the respondents-accused have not mis-used the concession of bail, the co-accused has also been released on bail by this Court on 8-10-1997 and the trial of the accused has already commenced and the case is now fixed for recording of the prosecution evidence cannot be lost sight of. In the circumstances, I would refrain from re-calling the impugned order of the Additional Sessions Judge.

7. This petition is dismissed. However, a copy of this order be sent to the Registrar of this Court as well as Additional Sessions Judge for information and record. N.H.Q./134/P/ Petition dismissed.