2016 PLP 145 (YLRN)

S. 497(5)

Penal Code (XLV of 1860), Ss. 324/34

Attempt to commit qatl-i-amd; common intention

Bail, cancellation of

Court below had not taken into account the overall aspect of the case in its peculiar circumstances

FIR had been promptly lodged

Complainant, the brother of the injured, had directly charged the accused for commission of the offence attributing specific role to the accused

Medico-Legal Report showed that the injuries on the person of the injured were on the vital part of his body

Investigation Officer had recovered two empties from the place of occurrence and the weapon of offence from the bedroom of the accused

Accused had misused the concession of bail by lodging FIR against the complainant of present case

Trial had already commenced against the accused

Accused was prima facie connected with the commission of the offence, which came within the restrictive clause of S. 497(1), Cr.P.C.

Said aspects of the matter were sufficient to bring the case of the accused within the exception justifying refusal of bail

Impugned bail granting order was perverse and capricious

Other accused person had been charged only for common intention and no specific role had been attributed to him, which fact distinguished his case from that of the principal accused

High Court, maintaining bail granting order for the co-accused, recalled bail of the principal accused

Application for cancellation of bail was disposed of accordingly. [Paras. 5 and 6 of the judgment] Sabir Shah, A.A.G. for the State. JUDGMENT MUHAMMAD DAUD KHAN, J.

Charged in case FIR # 650 dated 06.10.2015 under sections 324/34, P.P.C. read with 15 AA of PS Banr (Swat) Pir Zada and Wahid Zaman respondents/ accused were admitted to bail by the learned lower Court vide its order dated 06.11.2016 and aggrieved of the same Saleem Khan the complainant/petitioner has come to this Court for cancelation.

2. The allegations against the accused/ respondents as per FIR referred to above are that they on 06-10-2015 at 13:10 hours, duly armed with fire-arm and in furtherance of their common intention attempted at the life of Parvez Khan (brother of complainant) which proved effective.

3. Arguments heard and record gone through.

4. No doubt, once bail is granted by a competent Court of law then very strong and exceptional grounds are required for its cancellation. There is no cavil to the above but it appears that the learned Court below has not taken into account the overall aspect of the case in its peculiar circumstances.

5. Perusal of the case record shows that in this case the occurrence took place on 06-10-2015 at 1310 hours, whereas the report has been promptly lodged on the same day at 1420 hours. Saleem Khan (brother of injured Parvez Khan) is the complainant of the present case and he on the statement of injured Parvez Khan has directly charged the accused/respondents for commission of the offence attributing specific role to accused/respondent Pir Zada. Perusal of the medico-legal report in respect of injured Parvez Khan available on record would show that the injuries on the person of the injured are on the vital part of his body and the accused/ respondent Pir Zada who has been charged with specific role of firing made repetition. Moreover, the Investigating Officer during the investigation of the case has recovered two empties from the place of occurrence and has also recovered weapon of offence from the bedroom of accused/respondent Pir Zada. Similarly accused/respondent Pir Zada has also misused the concession of bail by lodging FIR # 04 dated 11-01-2016 under sections 365-A/34, P.P.C. PS Shah Dherai Swat against the complainant of the present case and the abductee mentioned in that FIR was allegedly recovered from him. Moreso, Trial has already been commenced against the accused/ respondents. On merit, prima facie, the accused/respondent Pir Zada is connected with the commission of offence which comes within the restrictive clause of section 497, subsection (1), Cr.P.C. These aspects of the matter were sufficient to bring case of the accused/respondent Pir Zada within the exception justifying refusal of bail to him.

6. The bail granting Court has passed bail order which is perverse and capricious one. Therefore, on acceptance of the instant bail cancellation petition, bail granted to respondent-accused viz Pir Zada son of Salo Khan is recalled. However, case of accused Wahid Zaman is on different footings as he was charged only for common intention and no specific role has been attributed to him which aspect distinguishes his case from the principal accused, therefore, to his extent BCA is dismissed. The learned trial Court, however, is directed to conclude the case within three months positively.

7. Before parting with the case, it is worth to mention that the learned trial Court should not influence itself from any observations given in this order which are purely tentative in nature and are only for the purpose of disposal of the instant bail cancellation petition.

8. Above are reasons of my short order of the even date. SL/130/P Order accordingly.