1994 PLP 1064 (SCMR)

FAZAL ELAHI KHAN, J: ‑‑This is a petition for leave to appeal against the judgment of Peshawar High Court, Circuit Bench Abbottabad, in Cr. Misc. No. 133 of 1993; whereby the accused/respondent No.1 was granted bail in offence under section 324, Qisas and Diyat Ordinance read with section 458/109/34, P.P.C. charged for in FIR No. 466 dated 3‑6‑1992 of Police Station Haripur. It was reported by Muhammad Nawaz complainant that while he alongwith his servant Munawar Din was sitting in his "Dewri" Ghulam Ahmad alias Jallan respondent No.1 and Yahya alias Kala co‑accused came in a Suzuki Van and stopped it near the Dewri and after getting down from it they started firing with Klashnikov and a shot gun at him, with which he and Muhammad Din got injuries. Yahya accused was apprehended after the occurrence while Ghulam Ahmad approached the Court by filing an application for his bail before arrest. On rejection of his application the police arrested him on 27‑9‑1992. His bail application made before the Ilaqa Magistrate on the ground of alibi was rejected on 17‑10‑1992. He made a further application for bail. before the Addl. Sessions Judge, Haripur who allowed him bail vide his order dated 8‑11‑1992. The complainant feeling aggrieved by the order moved cancellation application (Cr.Misc. No. 263 of 1992) in the High Court which was accepted vide order dated 11th May, 1993 and the order of Addl. Sessions Judge granting bail to the petitioner was set aside and the accused/respondent was taken into custody. It was observed by the learned Judge in Chamber that the accused/respondent could move a fresh application on the plea that his case does not fall within the prohibitory clause of Section 497, Cr.P.C. and that the challan being complete the accused is no more required to be detained. Accordingly fresh application was made before the learned Addl. Sessions Judge who rejected the same by order dated 13‑6‑1993. The accused/respondent then filed Cr. Misc. No: 133 of 1993 for bail in the High Court which was allowed by the learned Judge vide his order dated 28‑9‑1993 against which leave to appeal is prayed for. We have heard the learned counsel for the petitioner and perused the record. There is no doubt that the learned Judge in Chamber has on both the occasions entered into unnecessary controversy while rejecting the earlier application and subsequently allowing the bail. However, the impugned order passed with jurisdiction in discretionary matter need not be interfered with on such ground. The observations made by the learned Judge in these orders are tentative in nature and these have no bearing on merits of the case. It may however, be pointed out that in bail matter the allegation made in the F.I.R. and the evidence collected during investigation shall be given due weight in deciding prima facie nature of the offence made out against an accused person and the punishment provided therefor. It shall not be presumed that the offence being compoundable may at some stage be compounded and to make such presumption a ground for grant of bail in non‑bailable offences. As already pointed out the learned High Court having exercised its discretion in granting bail to the accused/respondent, on facts and circumstances of the case, we are not inclined to interfere with the said order. This petition is, therefore, dismissed. The case against the accused/respondent was registered on 3‑6‑1992 but so far no progress has been made on account of these miscellaneous applications. We, therefore, direct that trial shall be expedited and the case be disposed of on merits at the earliest. N.H.Q./M‑1997/S ????????????????????????????????????????????????????????????????????????????? Leave refused