' ABDUL LATIF KHAN, J.---The petitioner, who is complainant of case F.I.R. No. 40 dated 3-5-1987 under section 302, P.P.C., registered at Police Station, Wari, District Dir Upper, has approached this Court for recalling of bail granted to the accused/respondent, namely, Baezzat, by learned Additional Sessions Judge/Izafi Zilla Qazi, Dir Upper, Wari, vide his order dated 12-5-2014.
2. According to prosecution story, Aseel Zada, complainant, lodged a report on 3-5-1987 at 08.10 hours that on 2-5-1987 at 1700 hours Bazar Khan alias Bazargai due to land dispute committed the murder of his father, namely, Sherin Zada, by firing at him with his Kalashnikov in his presence as well as Bacha Rehman and Khan Zameen. The accused, after registration of the case, went into hiding and was arrested on 27-4-2014, after twenty seven years of the occurrence. He approached before learned Judicial Magistrate for his release on bail but his application for bail was withdrawn on 30-4-2014. Subsequently, he applied for the same relief before learned Additional Sessions Judge-II, Dir Upper, Camp at Wari, which was allowed, hence, the instant bail cancellation application under section 497(5), Cr.P.C.
3. Arguments heard and record perused.
4. The impugned order reveals that learned Additional Sessions Judge-II, Dir Upper, has granted bail to the respondent/accused on the grounds of non-recovery of empties from the spot, non- mentioning of time of occurrence, non-examination of the dead body of the deceased by the medical officer, non-visibility of places of accused and eye-witnesses from each other and delay in lodging of the F.I.R. But his observation is not supported by the material available on record. The record reveals that a single accused has been charged directly by the complainant in his report for the killing of his father and time of occurrence has been mentioned as 1700 hours. The record further reveals that during spot inspection the local police recovered an empty of KK bore and blood stained pebbles from the spot. According to site plan the places of presence of accused and P.Ws. Are visible from each other. Motive regarding occurrence has also been given as land dispute. The record further reveals that the petitioner after the occurrence went into hiding and remained fugitive from law from 2-5-1987 till his arrest on 27-4-2014, for a period of about twenty- seven years, with no explanation and during this period proceedings under section 512, Cr.P.C. Have also been completed against him. The petitioner, in the circumstances, is not entitled to the discretionary relief of bail as plus point for his 'abscondance' and cannot be left unnoticed from this Court as fugitive from law and Courts loses some of his normal rights granted by the procedural as well as substantive law. Though, there is delay in lodging of the report but such delay cannot be made a ground for bail as single accused is charged in the case and delay in making of report is taken with caution if number of accused are charged. True that post mortem examination on the dead body of deceased has not been conducted with the consent of legal heirs of deceased but the same cannot be made a ground for bail as people in Malakand area are not conducting autopsy of their relatives as a custom and even otherwise according to inquest report and injury sheet there were two injuries on the forehead of deceased and weapon of offence has been mentioned as 'aslaha atheshi'.
5. Quite apart from this, the petitioner, after his long twenty-seven years 'abscondance', was arrested on 27-4-2014 and on the following day he was produced before the Judicial Magistrate for obtaining seven days physical custody but the request of police was turned down. On the same day, i.e., on 28-4-2014, the petitioner applied for bail before Judicial Magistrate but on 30-4-2014, the bail petition was withdrawn by counsel for petitioner from the court of Judicial Magistrate being not pressed. The petitioner on the same day, i.e., on 30-4-2014 directly approached before the court of Malik Amjad Rahim, Additional Sessions Judge-II, Dir Upper, for getting the relief of bail, bypassing to approach before Judicial Magistrate as the earlier application for bail was not decided on merit but was withdrawn on the ground of being not pressed, which was allowed. In Nazir Ahmad and another's case reported in PLD 2014 Supreme Court 241, the apex Court enunciated the principles of propriety and practice regarding filing, entertaining and deciding applications for bail, cancellation of bail or suspension of sentence and release on bail during the pendency of an appeal in criminal case and observed that " withdrawal simpliciter of an earlier application for bail before addressing or hearing of any argument on the merits of the case does not preclude filing of a subsequent application for the same relief before the same court and its decision by such court on the merits of the case. As a practice the petitioner was required to have filed application before the concerned Magistrate for his release on bail as neither proceedings under section 512, Cr.P.C. Were initiated by the Sessions Court rather it was completed by the Court of Assistant Commissioner/SDM, Wasi, nor challan was submitted before the Court of Session. The record reveals that supplementary challan against the petitioner was submitted before the Court of Session on 7-5-2014 after seven days of filing application for bail.
6. No doubt, the bail once granted should not ordinarily be cancelled because the principle of cancellation and granting of bail are different and the courts should be slow in recalling the bail once granted but it does not mean that there is complete bar in recalling of bail granted to the accused. Grant of concession of bail is a discretionary relief which can only be extended to the accused person about whom the Court is satisfied that he is not connected with the commission of the offence at all and mere on the ground that the case of the accused is of further inquiry without any legal basis would not mean that the accused should be released on bail as every case, more or less, is of further inquiry which does not mean that every accused should be extended the concession of bail and if the criminals, like the present one, is not brought to justice and is granted bail in early bail stage, the result would be anarchy and disorder in the society.
7. The bail granting order is not only perverse on the face of it and has been passed in violation of the principles for grant of bail but is patently erroneous, factually incorrect and has resulted miscarriage of justice. The discretion vested in court to extend the concession of bail has not been properly exercised in the light of well set principles governing such matters. On tentative assessm ent of the material available on record, there are reasonable grounds to believe that the respondent/accused is, prima facie, involved in the commission of offence, which falls within the prohibitory clause of section 497, Cr.P.C., so keeping in view nature of crime, conduct of petitioner as he remained abscondance for about twenty seven years, petitioner is not entitled to the concession of bail.
8. Though, there is nothing on the record regarding misuse of concession of bail by the accused/ respondent, but the very reasons extended by the learned trial Court for grant of bail are not supported by the principles laid down for grant of bail. The learned court below apparently has not assessed the material available on the record in its true perspective while granting bail to the respondent. For the aforesaid reasons, this application is. Allowed, resultantly, the bail granted to accused-respondent, Baezzat Khan, by the learned Additional Sessions Judge/Izafi Zila Qazi, is hereby recalled.
9. Before parting with this judgment, it is worth to mention that charge has not been framed by the learned Presiding Officer of Court correctly as name of deceased is Sherin Zada instead of Shamsi Khan, therefore, the same be altered.
' It is, however, clarified that the observation made in this order are tentative in nature and shall not prejudice the case of either party at the time of final adjudication before trial Court.
' These are reasons of short order passed on 4-7-2014.