Muhammad Nawaz Abbasi, J.--The petitioner seeks leave to appeal against the order dated 5.9.2003 by virtue of which a learned single Judge of Peshawar High Court, Peshawar, granted bail to the respondents in a murder case.
2. The respondents are nominated accused in a case registered against them and the unknown culprits under Section 302/324/148/149 PPC at police station Ghazi district Haripur on the information given to the SHO of police station while he was on patrol duty, by. Suba Khan (complainant) that at about 2.30 a.m. on that day, he on hearing hue and cry from the house of his nephew, Iftikhar, rushed to his house and found that 5/6 persons armed with Kalashankovs, including Muhammad Ajmal, Muhammad Ilyas and Riasat son of MuhammadAfsar, who were identified by him in the torch light were running from the side of his house. He stated that an reaching at the spot, he found Iftikhar in injured condition and his wife Mst. Anila, was lying dead and that the fateful occurrence was the result of the enmity of respondents with the complainant party. The respondents were refused bail by learned Additional Sessions Judge, Haripur, but were allowed the confession of bail by a learned Single Judge in chambers of Peshawar High Court, Abbottabad Bench, vide order dated 5.9.2005, with the observation that the identification of the accused in the torch light as claimed by the first informant and the eye-witnesses, was not free from doubt particularly in view of the fact that the torch was not taken into possession by the investigating officer and that there was no explanation of not mentioning the names of two female inmates of the house who have claimed to have witnessed the occurrence and delay of two days in recording their statement under Section 161 Cr.P.C. was also not explainable. The learned Judge also observed that neither any specific role was attributed to any of the accused in the F.I.R. nor the statement of Iftikhar, who despite being injured was not unconscious, was recorded on the day of occurrence.
3. Learned counsel for the petitioner has sought leave to appeal in this petition with the contention that the learned Judge in the High Court having discussed the merits of the prosecution case in detail and making deep appraisal of the evidence granted bail to the respondents in complete departure to the principles governing for grant of bail in non-bailable cases and also in the cases which fall within the prohibitory clause of Section 497 Cr.P.C. The learned counsel added that the petitioner who was represented by the counsel before the High Court, was condemned unheard as the learned Judge without hearing his counsel, decided the bail application, which was an undue advantage to the respondents at the cost of causing serious prejudice to the case of complainant.
The main ground urged by the learned counsel in support of the cancellation of bail is that the complainant having identified both the respondents in the torch light, named them in the report lodged by him immediately after the occurrence to the SHO and the two women, eye-witnesses and inmate of the house, having identified the respondents as main accused, stated in their statements under Section 161 Cr.P.C. that they have played the role of firing at the deceased.
Learned counsel added that in such circumstances the mere presence of a person at the sence as member of unlawful assembly, would be sufficient to ascertain his guilt, by virtue of vicarious liability and while placing reliance on Bashiran Bibi vs. Nisar Ahmad Khan (PLD 1990 SC 83), Asmat Ullah Khan vs. Bazi Khan (PLD 1988 SC 621) and Arbab Ali vs. Khamiso and others (1985 SCM R 195), has sought cancellation of bail of respondents granted to them by the High Court.
4. This petition has been opposed by Dr. Babar Awan, counsel for the respondents on the grounds firstly, that there was no complaint against the respondents of Misuse of the concession of bail in any manner or abuse of their liberty by causing any obstruction is the trial which has not yet commenced and secondly, the High Court having made a tentative assessment of the evidence, formed an opinion that in the given facts, the question of guilt or innocence of the respondents would need further probe and having found it a case falling within the ambit of sub-section (2) of Section 497 Cr.P.C. granted bail to the respondents in accordance with the principles for grant of bail in such cases settled by this Court. Learned counsel with reference to the case law, submitted that the consideration for cancellation of bail being different to that of grant of bail, the matter would not call for interference of this Court.
5. Learned counsel appearing on behalf of State has informed us that the trial could not yet proceed because of absconsion of Muhammad Riasat accused but he has supported the cancellation of bail on the ground that the respondents were attributed the direct role of firing to the deceased and the injured were identified by the eye-witnesses as main culprits of the occurrence.
6. This is settled rule that if the Court while granting bail has not' violated the principles laid down for grant of bail, the cancellation is not proper. The mere fact that there could be another opinion of the matter to that of the opinion formed by the Court on the basis of tentative assessment of the evidence, would not be a sufficient ground to cancel the bail if in the light of the facts of the case; it can be found to have qualified the test of calling further inquiry into the guilt or innocence of an accused in terms of sub-section (2) of Section 497 Cr.P.C. This Court in a number of cases interpreted the provisions of Section 497(2) Cr.P.C. and held that main consideration for grant of bail under sub-section (2) of Section 497 Cr.P.C. is that if the Court on the basis of tentative assessm ent of evidence, forms an opinion that prima facie, there were reasonable grounds to believe that accused has not committed an offence with which he has being charged, he would be allowed bail by virtue of sub-section (2) of Section 497 Cr.P.C. as of right. In the present case, it will be seen that it was a night occurrence in which a number of accused participated, and the statements of Iftikhar injured as well as the two women witnesses who were the inmates of the house, were not recorded don the same day. It appears that the learned Judge in the High Court, in the light of the above features of the case, having formed an opinion that it was a case of further inquiry, granted bail to the respondents. We agree with the learned counsel for the petitioner that the deep appraisal and detailed discussion of evidence at the bail stage so as to prejudice the merits of the case of either party at the trial cannot. be permitted and we strongly deprecating the expression of opinion on the merits of the case at bail stage, observe that the Courts should be conscious not to cross the barrier of possible limits while making tentative assessment of the evidence at bail stage. However, we having heard the learned counsel for the parties, have not been able to find out that the observation made by the learned Judge in the High Court in the bail order would in any manner, be relevant to effect the case on merits at the trial and consequently, we would not consider it a good ground for cancellation of bail. In the light of facts and circumstances of the case and tenor of the order of the High Court it appears that learned Judge having formed the opinion that the essential conditions for grant of bail under sub-section (2) of Section 497 Cr.P.C. were satisfied, allowed the bail to the respondents and we having not formed a contrary opinion, would not be inclined to interfere with the order passed by the High Court. Be that as it may, we deem it proper to observe that the assessment of the evidence made by the learned Judge in chamber in the High Court, would be treated to be confined only to the extent of bail order and would not be relevant for the purpose of appreciation of evidence at the trial and the petitioner shall be at liberty to file a fresh application before the High Court for cancellation of bail of respondents in case of misuse of concession of bail by them or if it is found that a fresh ground is available for cancellation of bail after the statements of material witnesses is recorded. We have been informed that despite lapse of a period of more then three years since taking place of the occurrence, the trial has not yet commenced. We, therefore, direct that trial Court without granting the unnecessary adjournments should make efforts for expeditious conclusion of the trial.
7. Withe the above observation, this petition is dismissed. Leave is refused.