' SYED SAJJAD HASSAN SHAH, J.---Petitioner Waqar Ahmad through this petition seeks cancellation of to Sajjad respondent No,1 in case F.I.R. No,922 dated 29-10-2011 of Police Station, Khazana, registered under sections 324/452/459/148/149, P.P.C. Read with section 13 Arms Ordinance by the learned Additional Sessions Judge-V, Peshawar vide impugned order dated 12-12-2011.
2. Brief facts of the case are that complainant Waqar Ahmad in injured condition reported the matter to the local police that he was sleeping in his house at night time when he heard some noise and saw in the courtyard of his house some persons were present with the intention of stealing and when he tried to grip hold, one of them fired at him as a result of which he got hit and sustained injuries on his head. In the meanwhile, the other inmates of the house also woke up and rushed to the courtyard and all of them overpowered one person who was duly armed with a pistol. On query, he disclosed his name as Sajjad. The occurrence was witnesses by the maternal uncle of the complainant and other inmates of the house, hence, the present case was registered.
4. Learned counsel for petitioner contended that the Learned Additional Sessions Judge has not been exercised its discretion in accordance with the well-recognized principles of law regulating to the grant and refusal of bail in spite of the fact that the respondent has been directly charged by the complainant in the F.I.R. And the version of complainant regarding arrest of the respondent on spot along with a pistol was duly supported by the maternal uncle and other inmates of the house as eye-witnesses, medical evidence, recovery of empty of 30 bore, expert report result, whereof in positive and abscondance of co-accused.. Further contended that the deep assessment of material , on record is not required under the law but even then the learned Additional Sessions Judge while granting bail to the respondents went into deep merits of the case and examined the facts available on record, thus, the way, while passing the impugned order followed by the learned trial Court is vividly derogatory to the settled principles governing the grant of bail, moreso, the release of respondents on bail was also not permissible in view of punishment provided under the law.
5. Learned State counsel also supported the contentions of learned Counsel for the petitioner in respect of cancellation of bail.
6. This petition has been opposed by Mr. Sarwar Khan, Counsel for the respondent on the ground that the respondent has been and malafidely charged by the complainant in the F.I.R.; that the respondents have not misused the concession of bail in any manner or abuse of their liberty by hampering with the investigation of the case; that the learned Additional Sessions Judge has made tentative assessm ent of the evidence and formed his opinion that in the given facts, the questions of guilt or innocence of the respondent would need further inquiry and having found it a case falling within the ambit of subsection (2) of section 497, Cr.P.C., thus, granted bail to the respondent in accordance with the law, therefore, the matter would no call for interference of this Court.
7. The arguments addressed at the bar have 'been considered and the material placed on the record has been Carefully perused.
8. A perusal of record reveals that the learned Additional Sessions Judge was not justified to extend the concession of bail to the respondent for the reason that it is yet to be seen that whether there was any A intention on the part of the accused party for committing the qatl-e-amd of the complainant or not. For the purpose of bail, tentative assessment of facts available on the record has to be made and at this stage, the act of sifting of the evidence collected by the prosecution neither permissible nor advisable for the sake of fair and just administration of criminal justice. As the available material is yet to be proved by recording evidence and the learned trial Court has also adjudicated upon it. Reference is made to the case of "Shahzaman and 2 others v. The State and another" {PLD 1994 (Supreme Court 65)}, wherein, it was held:-- "While deciding the bail application, before recording of evidence in the trial, only tentative assessment was to be made by Court and it was not permissible to go into the details of evidence one way or the other for that might prejudice the case of one party or the other".
9. It is apparent from the record that the respondent has been overpowered on spot along with weapon of offence and is directly charged in the F.I.R. With the specific role in the commission of crime. These allegations would surely be sufficient on face of them to demonstrate that this was not a case of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. In this regard the dictum as laid down in Abdul Hayee and two others v. The State {1996 SCM R 555], wherein, it was observed that: the accused having been mentioned in the F.I.R. With clear roles in commission of the crime their case was not one of further inquiry within the meaning of section 497(2), Cr. P. C. Who were accused of a capital charge. High Court, therefore had rightly cancelled the bail allowed to accused by Trial Court. Leave to appeal was refused to accused, accordingly.
10. Be that as it may, the prosecution version is duly supported by the incriminating recoveries, expert report result whereof is in positive, medical evidence, as well as long and unexplained abscondence of other co-accused after the occurrence, therefore, prima facie the respondent was reasonably connected with an offence covered by the prohibitory clause of section 497, Cr.P.C.
Reliance can be made to the case reported in PLD 1997 Supreme Court 347 Naseer Ahmed v. The State, it was held:-- "We are of the view that there is sufficient material on the record which satisfies the mind of the Court to the effect that it is case of not only Lalkara but the petitioner had come armed with a pistol and had fired and the motive is mentioned in the F.I.R. Against him and there is positive report of the Ballistic Expert that the five crime empties were fired from the pistol which was recovered from the petitioner. Leave is refused and the petition is dismissed."
11. In these circumstances, the learned Additional Sessions Judge was not justified to extend the concession of bail to the respondent. This bail cancellation petition is, therefore, accepted and the concession of to the respondent by the learned Additional Sessions Judge, Peshawar is hereby recalled. The respondent who is present in Court is taken into custody and remanded to judicial lock-up.
' Above are the reasons of my short order of even date.