2011 YLR 2405 (PLP)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioner herein seeks the cancellation of bail granted to accused-respondent No.1, Ibraheem, by the learned Additional Sessions Judge-IV, Nowshera in case F.I.R. No.128 dated 31-1-2010, Police Station Akora Khattak, registered under sections 302/34, P.P.C.

2. The complainant Mst. Basraj on 31-1-2010 at 00.10 hours reported to the police that she while present in her house heard the noise of firing at 2300 hours. She came out of the house and saw her husband, Gul Muhammad lying in a pool of blood while Ibrahim, accused/respondent No.1 along with Aslam, Imtiaz and Gul Zada, duly armed with firearms, were getting away from the spot. She identified the accused in the moon-lit night and light of a bulb. The motive was that they were residing in the house of Mumhikat Khan over which he had a dispute with the accused and the matter was pending in the Court.

3. The learned counsel for petitioner vehemently argued that the learned ASJ has granted bail to the accused respondent after deep appreciation of the evidence available on record, which is not permissible at bail stage. The accused/respondent is directly charged in the F.I.R., one Qazi Nasir, claiming himself to be the eye-witness, has recorded his statement under section 164, Cr.P.0 and supported the version of complainant. Besides, the recovery of blood and empties from the spot, the medical evidence lends sufficient support to the prosecution case, thus prima facie connecting the accused/respondent with the commission of crime. The bail granting order is, therefore, in violation of the settled principles of law, hence not sustainable.

4. The learned State counsel also supported the submissions made by the learned counsel for complainant.

5. As against that the learned counsel for the accused/respondent submitted that though the accused/respondent is directly charged in the F.I.R. but the complainant is not an eye-witness of the occurrence. The occurrence has taken place in the dark hours of night and identification of accused from a distance of 120/130 paces was impossible. The statement of Qazi Nasir was recorded after about eight days of the occurrence, whose name was neither mentioned in the F.I.R. nor his presence at the time of occurrence was marked in the site-plan. In these circumstances, the tentative assessment of the materials available on record prima facie suggest that reasonable grounds were available that the accused/respondent had not committed the offence with which lie- was charged and case against the respondent being covered under section 497(2), Cr.P.C. the learned ASJ has rightly extended him the concession of bail. Further contended that the three other co-accused of the accused/ respondent have also been granted bail by the lower Court and neither the complainant nor the State has moved any application for cancellation of their bail.

6. Learned counsel for the parties as well as the learned State counsel were heard and record of the case was perused.

7. Perusal of the bail granting order would reveal that bail was granted to the accused/respondent on the grounds that it was a night occurrence and the distance in between the complainant and the accused/ respondent was 130 paces, which makes the identification of the accused impossible. One of the co-accused Gul Zada was declared innocent by the DPP and the statement of Qazi Nasir was recorded after eight days of the occurrence. The involvement of the accused/respondent in the commission of crime thus required further probe, entitling him to the concession of bail. The above conclusion has been drawn by the learned ASJ from the materials collected on record by the prosecution. No doubt, deep appreciation of evidence is not permissible at bail stage but the Court is supposed to make tentative assessment of the evidence available on record. The superior Courts in a number of judgments have held that for the purpose of deciding a bail application, Court is required to examine and appraise the prosecution evidence with a view to observe not only the facts of prosecution case but also to make out tentative assessment of the possibility of the offence having taken place, as claimed by the prosecution, and the question of prima facie involvement of accused, specially in cases which are punishable with death, imprisonment for life or ten years. While following the above dictums this Court in the case of Hayatullah v. Lal Badshah (PLD 2009 Peshawar 28) has held that deep appreciation of evidence and drawing conclusions therefrom though is not warranted but tentative assessment of materials brought on record including the defence plea is a permissible course. In this case too, the learned ASJ while making tentative assessment of the materials available on the record has found the case of accused/respondent as that of further inquiry. No definite opinion or conclusion seems to have been given, which can affect the prosecution case. Even otherwise, it is well settled that any opinion expressed by the Court while deciding a bail application would be treated as the result of tentative assessment of record and would not prejudice the case of either side at the trial., The occurrence in this case has taken plar9t at night, the complainant herself is not an eye-witness of the occurrence, the alleged eye-witness has recorded his statement after about eight days of the occurrence, one of the co-accused has been declared innocent by the police, hence all these points are sufficient to bring the case of the accused/respondent within the ambit of section 497(2), Cr.P.C. The crux of the arguments of the learned counsel for the petitioner was with regard to deeper appreciation of material available on the record. The law and the principles governing the grant and cancellation of bails are entirely different. For making a case for cancellation of hail, one has to establish on the record that the bail granting order was perverse, arbitrary and fanciful. The accused after release on bail has misused the concession of bail by influencing/threatening the witnesses or has tried to hamper the evidence on the record. No such thing was urged or referred to. So, in absence of the above, the bail granted to an accused cannot be recalled. Hence no valid ground exists at this stage for the cancellation of bail granted to the accused/ respondent. So, in this view of the matter, the petition in hand deserves dismissal which is hereby dismissed as such. H.B.T./200/P Petition dismissed.