P L D 1989 Peshawar 41 (PLP)

Malik Khalid Mahmud for Petitioner. Ghulam Mujtaba Khan for Respondents. Muhammad Aslam Khan, Asstt. A.‑G. for the State. Date of hearing: 3rd December, 1988. Accused respondents were granted bail by the learned Additional Sessions Judge‑II, Haripur mainly on ground of cross‑case in which the accused party has sustained fire‑arm and incised wounds during the course of incident. A reference was, however, also made to an affidavit filed by Muhammad Aslam father of accused Ayaz that the complainant was alright and that he has been spending his days outside the hospital in ordinary pursuits and also specifically alleged that the complainant spent his Eid‑ul‑Azha in his village and that he has unnecessarily stayed in the hospital in order to render the hurt as grievous. No. counter‑affidavit was filed by the complainant in rebuttal of the allegations.

2. Learned counsel for the complainant argued that the complainant party charged in the cross‑case has since been exonerated as the very case registered against them has been cancelled by the Magistrate on the recommendation of the Investigating Officer under section 169, Cr.P.C. He further contended that the complainant was caused a stab wound in left side of his chest and that for treatment of his wound he remained in the hospital for 43 days and that the R‑ray was to report haziness in lower zone of his chest. He also contended that the affidavit has been filed by the father of an accused, an interested person which need not be given due weight at this stage. On the other hand the learned counsel for the accused respondents contended that under section 169, Cr.P.C. the Investigating Officer can only release the accused on bond and for the cancellation of the case he will have to submit a charge‑sheet in the Court under section 173, Cr.P. C. when the Court would proceed in the matter in accordance with law, who may discharge the accused or proceed with his trial. He further contended that the report submitted by the I. O. for the cancellation of cross‑case and the orders of cancellation passed by the Magistrate without submission of challan are not warranted by the law and that the cross‑case shall be very much deemed pending in the eyes of law. The learned Assistant Advocate‑ General appearing for the State was also found in agreement with the learned counsel for the accused respondents on the point of law that in the facts and circumstances of this case the cross‑case shall be deemed pending Now in the cross‑case one of the accused respondents has sustained fire‑arm injury and the other an incised wound having been caused commensurate with the timing of occurrence. The two eyewitnesses mentioned in the cross‑case were to support the prosecution case, however, one witness was not to support the case of the prosecution. In the above state of affairs it cannot be said that the learned Additional Sessions Judge could not take the cross‑case into consideration at the time of the disposal of the bail application. 7 affidavit filed by the father of the accused in order to put the Co on inquiry to hold the hurt grievous or simple has also rightly prevailed with the learned Additional Sessions Judge in releasing accused respondents on bail.

3. In view of the above this Court would consequently dismiss the bail cancellation application. M.Z.S. /673/P Application dismissed