MALIK HAQ NAWAZ, J.---The respondent was booked for the offences under sections 302/109/34, P.P.C. vide FIR No,19 of 2017 registered at Police Station, Thore on 26-07-2017 on the written application of the petitioner/ complainant.
2. The respondent applied for post arrest bail, which was allowed to him by the learned Additional Sessions Judge Diamer vide order dated 09-10-2018. The complainant being aggrieved from the said order has assailed the same before this Court by filing the instant Cr . Misc. No,199/2018 under section 497(5), Cr .P.C.
3. The above petition was admitted for regular hearing on 06-11-2018 and SSP Diamer was directed to ensure presence of SHO/IO of the case and the respondent before this Court on 06.11.2018. On 06.11.2018 the bar was on strike and the case was posted to 08.11.2018. On 08.11.2018 SHO Police Station Thore Mir Ghani appeared before this Court. The respondent was also produced before this Court and he was directed to engage a counsel.
The case was posted to 09-11-2018 for arguments. On 09-11-2018 Mr. Aneesullah, Advocate filed his wakalatnama on behalf of the respondent and requested for an adjournment, which was allowed and the case was fixed for arguments today .
4. The learned counsel for the complainant submitted that the judgment/order of learned trial Court is an arbitrary order , which is not sustainable in the eyes of law and requires interference of this Court. The learned counsel for the complainant further submitted that the respondent is directly charged in the FIR for commission of murder of deceased Fidaullah. Weapon of offence has also been recovered from the posses sion of the respondent/accused and a separate FIR under section 13 A.O. has been registered against the respondent. The learned counsel vehemently contended that it was a case of single accused and the complainant has not thrown the net wide.
There is a prima facie case against the respondent and bail granting order be recalled in the larger interest of justice. The learned Dy. Advocate General adopted the arguments of learn ed counsel for the petitioner/ complainant, with the submission that the judgment/order of learned trial Court is against the settled principles governing principles for grant of bail in the of fences of heinous nature.
5. On the other hand the learned counsel for the respondent defended the judgment/order of learned trial Court and submitted that the judgment/order has been passed after due application of judicial mind and reasons for grant of bail advanced in the judgment/order impugned before this Court are not imaginary and speculative rather find support from the material collected by the prosecution during investigation. The learned counsel further submitted that it was a night occurrence and identification of respondent was not possible in odd hours of night. The learned counsel for respondent relied on 2017 SCMR 1944 , PLD 2008 Lah. 208 , 2008 PCr .LJ 1565 and 2008 SCMR 1715 .
6. It was a night occurrence, which took place on 26-07-2017 at 0100 a.m. and the report was lodge at 05:30 a.m. on the same day. The complainant/eye-w itnesses have to establish that in dark hours of night they were able to identify the respondent/accused. The learned trial Court has rightly extended the concession of bail to the respondent considering his case as one of the further inquiry falling under section 497(2), Cr.P.C. The learned counsel for the petitioner/ complainant and the learned Dy. Advocate General failed to point out any legal infirmity in the impugned judgment/ order which is upheld. There are different parameters for cancellation of bail, when the same is granted by a Court of competent jurisdiction on the grounds of further inquiry .
7. In view of above discussion, the bail cancellation 'application filed by the complainant/petitioner is dismissed being meritless.
8. File be consigned to record after completion.