' This is a petition for cancellation of bail granted to the respondent, Ahmad alias Ahma, vide order dated 13-1-1990, passed in Crl. Misc. No, 4751/B of 1990 "Ahmed alias Ahma etc. v. The State."
2. The learned counsel raised the following contentions in support of his petition:--
(1) that the respondent is stated to have caused an injury on the right thigh of the deceased, Muhammad Yar, while armed with a gun, and that he had a motive as he wanted to avenge the murder of his brother, and that he had participated in a broad-day occurrence, and, as such, there was no question of mistaken identity and that, therefore, there were reasonable grounds to believe that the accused/respondent was guilty of the offence involving capital punishment; and, as such, the case falls within the prohibitory clause of section 497, Cr.P.C;
(ii) that the sole premise on which the bail has been allowed to the accused/respondent was the opinion of the D.S.P., recommending his name to be placed in column No,2 but, thereafter, even he had proceeded to challan the respondent and placed his name in column No,3 in his report under section 173, Cr.P.C., and that otherwise, too, the ipse dixit of the police is not binding on the Court;
(iii) that the authorities relied upon while granting bail to the respondent are not applicable to the facts of the case; and
(iv) that even otherwise ever since his release on bail, the respondent has let loose the reign of terror.
3. It may be pointed out here that although it has been contended, as stated above, that the accused/respondent has let loose the reign of terror and affidavits of two PWs., namely, Mst.
Khairan and Zahoor are annexed herewith in support thereof but they have not appeared in the Court to support the said affidavits, and furthermore, that no complaint in respect of the said allegation of creating a reign of terror to frighten the witnesses has been lodged with the police.
Therefore, the said allegation is of no consequence, hence untenable.
4. The learned counsel for the petitioner was heard at great but he failed to perusade the Court that the case for recalling of bail order dated 13-1-1990 is made out in any manner whatsoever. It shall suffice to point out that the bail was granted to the respondent on the sole ground that he was found to be innocent by the D.S.P. During the investigation but, nevertheless, his name had not been placed in column No,2 while submitting the challan under section 173, Cr.P.C. The said contention for bail of the respondent was supported by the following authorities:--
(i) M. Hayat v. The State 1974 P Cr. U 450, wherein the accused charged under section 302, P.P.C.
Was admitted to bail as he had been found innocent during the investigation, although, his name was not placed in column No,2;
(h) Nisar Ali v. The State 1984 P Cr. LJ 425, wherein the accused charged under section 302/34 P.P.C.
Was granted bail as he had been found innocent during the investigation but his name had not been placed in column No,2, and the said fact was stated to be immaterial; ' Akbar and two others v. The State 1985 P Cr.LJ 1878, wherein the accused charged under section 302/148/149 P.P.C. Was granted bail, as according to the ziminies, he was found not to be present at the spot;
(iv) Roshan v. Sardara and three others 1984 SCMR 1559, wherein the Honourable Supreme Court refused to interfere with the bail granted to the accused under section 302/148/149 P.P.C. As the investigation had recommended that his name be placed in column No,2 but, nevertheless, the Prosecution Agency had placed his name in column No,3, therefore, it was held that Hon'ble High Court was justified in granting bail to the accused as doubts had been created about the prosecution version in respect of the said accused; and
(v) Bahadar and two others v. The State 1986 M LD 2833, wherein the accused was granted bail in a murder case, as it was held that opinion formed by the Inspector of Police in respect of the innocence of the accused should be given weight for purpose of bail.
5. The learned counsel was asked to point out as to how the authorities stated above were not relevant to the case, of the respondent. In particular, the learned counsel was asked to make his submission in respect of Roshan v. Sardara and three others 1984 SCMR 1559 stated above. The learned counsel failed to point out any grounds on the basis of which it could be held that the said case was not applicable to the case for bail of the respondent, and that, the bail allowed to the respondent while relying on the said authority, in addition to other authorities relied upon, could be recalled under the facts and circumstances of the case.
6. The learned counsel, time and again, repeated his argument that the accused/respondent was named in the F.I.R., was attributed a specific role and had injured the deceased, had a motive, and had participated in a broad-day occurrence. But, time and again had to concede that the respondent had been found innocent during the investigation, yet he was challaned and his name was placed in column No,3.
7. The discretion once exercised in favour of the respondent and thus allowed bail, cannot be interfered with only to satisfy the personal grudge of the complainant. Such an order can only be recalled for the same being either arbitrary or capricious, or against the principles for grant of such relief as laid down by the superior Courts, or for being patently illegal, as consistently held by the superior Courts. However, the learned counsel for the petitioner failed to point out any such infirmity or illegality in respect of the order allowing bail to the respondent.
8. In view of what has been stated above, no case for recalling of the order dated 13-1-1990, allowing bail to the respondent is made out. Therefore, the present petition for cancellation of bail being without any merit is hereby dismissed in limine.