' SHAHID HAMEED DAR, J.---The petitioner seeks post-arrest bail in case F.I.R. No,115, dated 18-5-2011, under sections 302, 324, 148, 149 read with section 109, P.P.C., registered at Police Station Shah Bhoor, Okara, on the complaint of Allah Ditta.
2. Since the facts of the case in detail have already been given in order dated 2-2-2012 passed by this Court in earlier post-arrest bail application (Criminal Miscellaneous No,16949/B of 2011) of the petitioner, therefore, the same need not be reiterated.
3. Learned counsel for the petitioner submits that the instant bail application has been moved on a fresh ground, which arises from the fact that the most important prosecution witness Umar Hayat injured, has turned hostile and he has refused to support the false case of the prosecution; his sworn affidavit, as well as his statement under section 164, Cr.P.C. Categorically reveals that the occurrence as alleged in the F.I.R. Had been committed by some unknown accused; lastly submits that the aforesaid fresh ground places the case of the petitioner within the limits of further inquiry as defined by section 497(2), Cr.P.C.
4. Conversely, learned Additional Prosecutor-General Punjab assisted by learned counsel for the complainant opposes with the submission that the instant bail application is not sustainable as no fresh ground is available to the petitioner; the hostile stature of the injured P.W. Is nothing but an attempt of the accused to tamper with the prosecution evidence. Relies upon the cases titled Naseer Ahmad v. The State (PLD 1997 SC 347), Sanaullah and 3 others v. The State (1983 SCM R 15) and Muhammad Sharif and another v. The State (1988 SCM R 541).
5. After hearing learned counsel for the parties and perusing the record, it is observed that first post-arrest bail application (Criminal Miscellaneous No,16949/B of 2011) of the petitioner was dismissed on merits by this Court vide order dated 2-2-2012. The instant application has been moved for the reason that the only injured witness of this case Umar Hayat, no more supports the prosecution case. He, in fact, swore an affidavit on 24-3-2012 and also got recorded, though not in a lawful manner, his statement under section 164, Cr.P.C. On 14-3-2012, whereby he appeared to have taken a U-turn and a complete somersault, as regards his previous version, entailed in his statement under section 161, Cr.P.C., which was in line with the story, narrated by the complainant in F.I.R. Can the changed stance of the injured P.W. Be taken as a fresh ground or could it be considered a circumstance, equivalent to tampering with the evidence of the prosecution. Learned counsel for the complainant while relying upon the above-said judgments has vociferously argued that the resilient stance of a witness, pending investigation or trial, is a tantamount to tamper with the evidence of the prosecution. The record reveals that the above-said injured P.W. Was in full agreement with the contentions of the complainant as well as those of the eye-witnesses till the rejection of earlier bail application of the accused-petitioner. His departure from the previous assertion certainly causes eye-brow-raising. Admittedly, he, being an injured P.W. Happens A to be a crucial figure in the prosecution case but it does not mean that his lone resiling act would eclipse the credibility of the statement of the complainant as well as those of other eye-witnesses. The prosecution would be at liberty to take a decision during the course of the trial, whether or not to produce the above-said injured P.W. For examination. Legally speaking, it would not be compulsory for the prosecution to . Necessarily produce the above said injured as a P.W. Before the trial Court and they have every right to, dispense with his evidence, if so advised. By following the dictum laid down in the luminous judgments, relied upon by learned counsel for the complainant, it can be safely held that the act of disowning the prosecution case at this stage by the injured B P.W., is nothing, but reflection of an attempt of the accused to tamper with the prosecution evidence, which does no good to the accused. Reference in this regard can be advantageously had on Naseer Ahmad's case (PLD 1997 SC 347), wherein it has been held as under:- " A trend has developed nowadays that eye-witnesses sometimes take a somersault and give statements which are different from prosecution case and sometimes file affidavits also at the stage of hearing of bail applications of accused persons with intention of creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. It is the mind of the Court which is to be satisfied where about-turn of some of eyewitnesses in the manner stated above shakes up the whole prosecution, case from the point of view of credibility of the remaining material. In that respect each case is to be decided on its own merits.................................................................................
' It is strange that the challan of this case is pending trial for a couple of years, but the injured P.W.
Managed to get his statement recorded under section 164, Cr.P.C., which, to the mind of this Court, is not only uncalled for but also an illegality. The bail declining order dated 2-2-2012 clearly established the fact that the petitioner's case did not call for further probe into his guilt as contemplated under section 497(2), Cr.P.C. The above-said position of the accused-petitioner does not change at all with the hostile attitude of the injured P.W., nor his changed stance can be considered a fresh ground.
6. For what has been discussed above, I am not inclined to accept this application, which is dismissed accordingly.