2013 PLP 2685 (YLR)

LAL JAN KHATTAK, J.

Petitioner Muhammad Javed through the instant application under section 497(5), Cr.P.C. seeks cancellation of bail granted to the accused Tahir Saleem by the learned Additional Sessions Judge-V, D.I. Khan on 29-12-2012 in case F.I.R. No.1056 dated 17-11-2012 registered under section 452/ 355/337-A(ii)/34, P.P.C. at Police Station Cantt: D.I. Khan.

2. Short facts of the case are that on 19-11-2012, the petitioner-complainant reported to the local police in emergency room of civil hospital, D.I. Khan to the effect that on the eventful day at about 1700 hours when he along with his friend Kamran reached on Diyal Road, D.I. Khan, there the respondent-accused along with co-accused Kamran son of Khurshid Alam, Hameed Ullah and another unknown person were found present duly armed with knives and clubs who came and inflicted him knife and club blows with which he was injured on his head. The accused further tied a chadar around his neck and dragged him towards their house.

3. The accused-respondent initially applied for his release on bail before the Court of Illaqa Magistrate where his plea of bail was turned down whereafter he sought his release on bail from the court of learned Additional Sessions Judge-V, D.I.Khan who vide his order dated 29-12-2012 released him on bail.

4. Learned counsel for the petitioner-complainant in support of the instant bail cancellation petition argued that the learned Additional Sessions Judge by granting bail to the accused has committed an illegality by not issuing any notice to the petitioner which is must under the law. Learned counsel to this effect has relied upon the case law reported in PLD 1993 Peshawar 151, 2004 PCr.LJ 968 and 2009 YLR 1818.

5. As against the above, learned counsel for the respondent-accused and learned Additional Advocate General for the State defended the bail granting order by arguing that the learned bail granting Court has rightly exercised its discretion by releasing the accused on bail and there is nothing for recalling the bail granted to the accused.

6. I have heard learned counsel for the parties and gone through the record of the case.

7. The main contention of the learned counsel for the petitioner is that the learned Additional Sessions Judge has granted bail to the accused without hearing the complainant which according to the learned counsel is an illegality and should not go unnoticed. It is true that under the new dispensation of the criminal justice in the context of the offences covered by Qisas and Diyat law, complainant is entitled to notice before any order on bail is passed by the Court and there is no cavil to this proposition but equally it has been observed by the Courts umpteen times that the above legal requirement is constantly being misused by the complainant side on one pretext or the other which attitude and practice not only causes delay in the disposal of the bail petitions but also is adversely affecting the smooth of functions of the courts of law.

8. The contention of the learned counsel for the petitioner, that no notice was given to the petition for hearing of the bail petition, is not correct. It is on record that the learned bail granting Court did issue a notice to the complainant on his home address. The process server, tried his level best to serve the complainant for his appearance before the Court for hearing of the bail application but he was not available at his home. There is endorsement by the process server on the overleaf of the notice sent by the learned bail granting Court to the complainant to the effect that the petitioner-complainant is involved in a criminal case vide F.I.R. No.1121 dated 27-12-2002 under sections 452/355/337-L(2)/34, P.P.C. In such like situation no other option was left with the learned bail granting Court but to decide the bail petition in absence of the complainant. However, the learned Deputy Public Prosecutor was present before the learned Court who did represent the state, where-after the learned Additional Sessions judge granted bail to the accused-respondent on merit keeping in view the fact that four persons were charged for a single injury with no specific role to any of the accused and that there is a cross version which brings case of the accused for further enquiry.

9. The authorities cited at the Bar by the learned counsel for the petitioner are quite distinguishable as in the case reported in PLD 1993 Peshawar 151, the learned Additional Sessions Judge while recalling the bail granted to the accused on the same day, on which he had cancelled the bail, admitted the accused to bail without issuing any notice either to the complainant or to the State while in the present case notice was issued to the State and the complaint but he was found absent from his house due to his being involved in a criminal case. Likewise in the other two reported cases relied upon by the learned counsel for the petitioner, no notices were issued to the complainant and for that reasons bail granted to the accused were recalled which is not so in the instant case as not only notice issued to the complainant but State was also put on notice and the learned Deputy Public Prosecute was heard.

10. For the above discussion and reasons, I did not notice any illegality in the bail granting order which is quite legal and there is nothing for its re-calling. Therefore, the instant bail cancellation petition is dismissed being bereft of any merit. HBT/515/P Petition dismissed.