' TARIQ PARVEZ KHAN, C J.---My this order shall dispose of two connected matters, one Criminal Revision No,206 of 2005 filed by Esa Khan where he has challenged the order dated 13-12-2003 of learned Additional Sessions Judge-V at Peshawar, who has ordered that Esa Khan be taken into custody immediately, while the second matter is Cr.Q.P. No,106 of 2006 where Nawab Khan complainant seeks setting aside of action taken by respondent No,2 i,e, S.H.O. Police Station Badaber, who had released Esa Khan respondent but on personal bonds.
2. Short facts of the case are that Haider was killed and for his murder Esa Khan, Karamat, Mir Nawaz and Israil were charged. In due course of investigation and after proceedings were initiated against the charged accused under section 204 Cr.P.C. Read with sections 87/88, Cr.P.C. Mir Nawaz and Karamat accused were arrested. However, Esa Khan accused was released by the police on personal bonds on 6-8-2004 by the S.H.O. Of Police Station concerned.
3. It appears from the record that although Esa Khan was directly charged in the F.I.R. Made on 26- 6-2003 but because he was serving in the Police department, his arrest was postponed until on 7- 7-2003, it was recorded in the Police Diaries that Esa Khan is a driver and presently posted/serving with the Chief Minister's Squad and that Security Chief of the Chief Minister's Secretariat had issued a certificate that Esa Khan accused remained on duty on 26-6-2003 till 10-00 p.m.
4. However, this certificate was never presented by the accused Esa Khan to the police but was only sent. Again the Police remained unconcerned about arrest of Esa Khan until on 6-8-2004 when Esa Khan allegedly appeared before the police in the Police Station and was then and there formally arrested but simultaneously released on personal bonds.
5. Whether or not the S.H.O. Of the Police Station concerned had the legal right to release Esa Khan on personal bonds when he was directly charged in the F.I.R. And when he remained an outlaw for nearing one and half years and above and when S.H.O. Had not recorded any confirmatory statement of any other official to verify the certificate allegedly issued by Security Incharge of the Chief Minister's Secretariat, speaks in volumes of ulterior motives on the part of the S.H.O. Who had acted in utter disregard of law. He but in the circumstances vests with no legal authority to release Esa Khan on his personal bonds. Therefore, while exercising jurisdiction under section 561-A, Cr.P.C., this Court is constrained to hold that the order of the S.H.O. Releasing Esa Khan on personal bonds, is not liable to be sustained and that personal bonds were wrongly taken.
6. Now coming to the revision petition filed by Esa Khan against order of learned Additional Sessions Judge whereby Esa Khan has now been taken into custody as if his bail stands cancelled, such order of the learned Additional Sessions Judge is also not in consonance with law.
7. Under section 497(5), Cr.P.C., a Court granting bail or the Court of Session or the High Court, can recall an order of grant of bail but where bail is granted by the police, that too on personal bonds, wculd not be amenable to jurisdiction under section 497(5), Cr.P.C. But to the jurisdiction of the High Court either exercising inherent jurisdiction or jurisdiction vested in it under the Constitution.
Two judgments have been relied upon by the learned Additional Session Judge cancelling bail of Esa Khan petitioner which are 1994 PCr.LJ 1166 and 1996 PCr.LJ 1987. Both these judgments are not relevant to the facts of the case because in the judgment reported as 1994 PCr.LJ 1166, AIR 1933- Sindh-331(2) was referred wherein the facts were totally different i,e, where pre-arrest bail was declined to the accused and the same accused later on was released by police on personal bonds, was held to be an act amounting to as if S.H.O. Had revised the order of the Sessions Judge.
It was set at naught by the High Court but under its inherent jurisdiction under section 561-A, Cr.P.C.
Applying case-law as well as statutory law as referred to above i,e, section 497(5), Cr.P.C. The additional Sessions Judge was not vested with jurisdiction to cancel the bail. Such order dated 13- 12-2005 is set aside as without jurisdiction. However, from today onwards he shall be deemed to be in custody under the orders of this Court for the reasons that his release by the S.H.O. On personal bonds has been set aside and for the reasons that he is directly charged for the crime of murder, therefore, on merits too he was not entitled to grant of bail.
' Record of the case be sent back to the trial Court for proceedings from the stage it was left.
' Both the petitions are allowed in the above terms.