P L D 1989 Peshawar 83 (PLP)

Aslam Khan Asstt. A.‑G for the State. Date of hearing: 7th December, 1988. On the night between 21st and 22nd August, 1988 theft took place in the house of the petitioner Jehanzeb by lurking house trespass/house‑breaking by night and a revolver alongwith some ammunition, an amount of Rs.3,500 and some golden ornaments were stolen away. It was, however, on 3‑9‑1988 that the petitioner formally lodged a report in Police Station Mansehra at 9.00 a.m. whereupon a case was registered vide F.I.R. No.56 of the same date wherein he charged the respondent by name alongwith Shah Sawar, Ali Mardar and others. The motive attributed in so far as the respondent is concerned, as given out in the F.I.R., is that there had arisen a dispute between the petitioner and Khani Zaman, a brother of the respondent over a bargain relating to certain land and about a month earlier respondent had threatened him of dire consequences. It was on this account, it is alleged, that the respondent alongwith others named in the F.I.R. has committed this offence. The accused‑respondent applied to the learned Magistrate 1st Class for bail, which was refused on 22‑9‑1988. He moved another application with the same prayer before the learned Sessions Judge, Mansehra which was accepted and bail was allowed to him vide his order dated 2‑10‑1988. Hence this application for cancellation of bail by the complainant. I have heard the learned counsel for the parties and the learned Assistant Advocate‑General for the State and have gone through the record of the case with considerable degree of care. The learned counsel for the petitioner has contended that in the light of the evidence brought on the record in the form of direct charge in the F.I.R., inculpatory confessional statements of Shah Sawar and Ali Mardan, accused, wherein the respondent figures as the principal culprit, recovery of stolen money and some of the ornaments at the instance of Shah Sawar and the respondent which were later on duly identified by the complainant, is sufficient enough to give rise to a reasonable belief that the respondent has been guilty of the offence under section 458 P.P.C. which falls within the prohibitory clause of section 497 Cr.P.C. According to him, in such situation, the discretion exercised by the learned Sessions Judge, by extending the concession of bail to the accused‑respondent is not proper. On the other hand Mr. Muhammad Hanif Khan, Advocate, the learned counsel for the accused‑respondent has submitted that the delay in the F.I.R. has not been explained, the description of ornaments is missing from the F.I.R. the recoveries are doubtful and the confessional statement, unless proved at the trial, cannot be taken as a ground for refusing the concession of bail to the accused- respondent. A reference to the record confirms that Shah Sawar and Ali Mardan have made inculpatory confessional statements before a Magistrate 1st Class Mansehra and gave a detailed account of how their service were procured by the respondent in order to murder the petitioner and finding him not in the house on the night of the occurrence they committed the theft. Recovery of Rs.3,500 was also made during the investigation on the pointation of Shah Sawar accused and that of golden ring on pointation of the respondent which was duly identified by the complainant, later on, in an identification parade. I intentionally hesitate to sift the evidentiary value of the prosecution evidence so far brought on the record, for, it is well settled that such sifting is not to be undertaken for the purpose of J A grant or refusal of bail as it is likely to pre‑empt the duties and functions of the trial Court and to prejudice the prosecution anti defence at the trial stage. But a tentative appraisal of the said material brought on the' record, in my view, is, sufficient to raise a legitimate belief in my mind, for the purpose of bail under section 497 Cr.P. C. that reasonable grounds exist to connect the accused‑respondent with the offence he is charged with including the one under section 458 P.P. C. the punishment provided wherefore is 14 years R.I. and as such falls within the prohibitory clause of section 497 Cr.P.C. However all the points raised by the learned counsel for the accused‑respondent can be pressed into service at the trial where the trial Court shall be in a better position to conclusively assess the value, of the evidence after recording the same. In this context of the matter I find that the discretion exercised by the learned Sessions Judge, in favour of respondent, was rather inapt particularly when following the rule of consistency, the release of the co‑accused Paryeez, is weighed with the learned Sessions Judge in passing the impugned order rather more heavily than required under the law. It may be borne in mind that the rule of consistency cannot be applied as, an omnibus principle irrespective of the facts of each and every case. It is not such an inflexible rule which, in the ordinary course, should bind the hands of the Court while exercising its discretion fairly under section 497 Cr.P.C. In fact no hard and fast rules can be laid down and while following the aforementioned principle, facts of each case should be kept in view, and, unless found inevitably impulsive, should not be followed blind‑ foldedly In the result I accept this petition and recall the order of the learned Sessions Judge dated 2‑10‑1988, granting bail to the accused respondent. The accused‑respondent is present in Court and taken into custody to face his trial. I hope the learned Magistrate would conclude the trial within a reasonable time. H.B.T./676/P Petition accepted.