' RUSTAM S. SIDHWA, J.---This is a petition for special leave to appeal filed by Safdar, petitioner, against the order of a learned Single Judge of the Peshawar High Court, Circuit Bench, Abbottabad, dated 18th October, 1989 whereby he set aside an order of a First Class Magistrate, Abbottabad dated 26-3-1988 releasing the petitioner on bail in exercise of power under section 169 Cr.P.C.
2. The brief facts of the case are that on 25-6-1987 Dildar, complainant, filed F.I.R. Under section 307/34, P.P.C. Against Safdar, petitioner, and his co-accused Akhtar Khan and Fiaz for an attempt made on his life by the said three persons, who were reported to be armed with a sharp-edged weapon, fire-arm and a blunt weapon respectively. According to the F.I.R., Safdar, petitioner, was alleged to have cut off the nose of Dildar, complainant, while Akhtar co-accused was alleged to have fired at the complainant and Fiaz co-accused was alleged to have given sarya blows to him on his head. On 26-9-1987 the petition of Safdar, petitioner, for pre-arrest bail was rejected by the learned Sessions Judge, Abbottabad, whereupon the petitioner was taken into custody on that day.
The petitioner then applied for bail after arrest, which was likewise rejected by the learned Sessions Judge on 11-10-1987. Safdar, petitioner, alongwith his two-coaccused, then applied for bail after arrest before the Peshawar High Court, which was rejected by a learned Single Judge on 6-12-1987.
The plea of the petitioner regarding his alibi was not accepted by the learned Single Judge on the basis that the same could be examined at the trial, after necessary evidence was recorded.
Thereafter, the petitioner alongwith his two co-accused moved the Supreme Court for bail, when on 31-1-1988 bail was allowed to Akhtar Khan and Fiaz, co-accused, but the prayer of Safdar, petitioner, was refused.
3. In the meantime on 20-12-1987 challan against all the three accused, including the petitioner, was sent to the Prosecution Branch. The P.S.I. Concerned sent back the case to the police for examination of the plea of alibi raised by the petitioner. The new Investigating Officer found the said plea as having force and he accordingly on 14-3-1988 filed an application under section 169, Cr.P.C. Before the Magistrate for the release of Safdar, petitioner, on bail, which request was accepted by the learned Magistrate, who, vide his order dated 26-3-1988, released the petitioner on bail. Being aggrieved by the said order, Dildar complainant approached the Peshawar High Court with a petition filed under section 561-A, Cr.P.C. For the quashment of the said order, which was allowed by a learned Single Judge of the High Court on 18-10-1989, who recalled the order and ordered the petitioner to be arrayed as an accused person in column 3 of the challan, alongwith his two co-accused, to face his trial for the offence charged, with the direction that if, after recording some evidence, the petitioner considered that he was entitled to bail, then he could so apply to the trial Court in that connection. Being aggrieved by this order, Safdar, petitioner, has moved the present petition for leave to appeal.
4. On behalf of Safdar, petitioner, two submissions have been made. First, that the learned Single Judge of the High Court should not have exercised power under section 561-A, Cr.P.C., because he had powers under other provisions of the Code of Criminal Procedure to set aside the said order.
Second and last, that the petitioner has only been released by the Magistrate on bail and that he has not been discharged from the case and that if, after the evidence is recorded, his plea of alibi fails, he can be convicted for the offences proved against him.
5. With regard to the first submission, the learned counsel for the petitioner has himself conceded that the learned Single Judge could also have acted under section 497(5) of the Code of Criminal Procedure for setting aside the order of the Magistrate dated 26-3-1988. If so, the order can be treated as one passed under the appropriate provision of law. This submission, therefore, has no force. As regards the second submission, the plea of alibi of the petitioner was examined explicitly by the High Court when the petitioner's bail application was dismissed on 6-12-1987 and apparently not even pressed before the Supreme Court, when the petitioner's bail petition was dismissed on 31-1-1988, because the order of the Supreme Court is silent in that respect. In view of the ocular testimony and the medical evidence, which strongly support the case of Dildar, complainant, the view of the learned High Court Judge that this was not a case where the petitioner should have been released on bail, but was rather one where the plea should be permitted to be thrashed out at the trial, appears to be legally correct. Taking all circumstances into consideration and without giving any finding or observation in the matter, we do not think that this is a fit case for interference. This petition is, therefore, dismissed.