2012 PLP 822 (MLD)

ATTAULLAH KHAN, J.

One Fazal Hameed, injured of case F.I.R. No. 139, dated 22-3-2011 registered under sections 324/148/149, P.P.C. of Police Station Akbar Pura, District Nowshera, has moved this application for recalling the bail granted to accused/respondents by the learned Judicial Magistrate-III, Nowshera, dated 4-4-2011, on the ground that after getting reliable trustworthy evidence regarding guilt of the accused/respondents, the petitioner has charged them in his statements recorded under section 164, Cr.P.C. and even 161 Cr.P.C.; that the recovery of empties of 222 and 30 bores from the spot and the FSL report showed that the Kalakoav empties matched with the weapon recovered which was a sufficient evidence for rejection of concession of bail to the accused/respondents and that the order granting bail being perverse; capricious and arbitrary merits recall as it is against the norms of justice laid down by the superior courts. It will not be out of place to mention it here that petitioner's effort to get the bail granting order cancelled from the court of learned Additional Sessions Judge, also proved in vain.

2. The learned State counsel assisted by the learned counsel appearing on behalf of the accused/respondents contended that the occurrence took place in the dark hours of night and in the report none was charged and that because of belated charge by the petitioner then injured naming the accused/respondents as one of the assailants, require further probe; that the trial of the case is in progress and thus in these circumstances, the order granting bail being proper, merits no interference especially when there is no allegation against the accused/respondents as to the misuse of the concession thus granted by the Judicial Magistrate.

3. I have gone through the record carefully and considered the submissions made by the learned counsel for the parties.

4. Perusal of the F.I.R. would reveal that none is charged in the case by the complainant. The petitioner who was injured in the case charged the accused/respondents in his statement recorded under section 161, Cr.P.C. on 25-3-2011 and under section 164, Cr.P.C. on 21-4-2011 but in both the statements which were recorded belatedly, the injured petitioner has not disclosed the source of information or satisfaction which enabled him to charge the accused/respondents. No identification parade has been held regarding guilt of the accused/ respondents. Besides, there is no direct evidence against them and the evidentiary value of belated statement recorded under section 164, Cr.P.C. would be seen at the trial. There are no allegation of misuse of the concession of bail by the accused/respondents nor it is case of the prosecution that there is any apprehension of tampering with the evidence on the part of accused/respondents. Apart from above, the trial of the case has commenced. Considerations for grant of bail and cancellation of bail are totally different. When seen in the above backdrop of the case, the discretion exercised by the learned Judicial Magistrate granting bail to the accused/respondents does not appear to be perverse or arbitrary or whimsical. Therefore, the respondents have rightly been extended the concession of bail as their case is purely of further enquiry. In these circumstances, this petition stands dismissed. M.W.A./38/P Application dismissed.