' Muhammad Rashid petitioner has moved this petition under section 497(5), Cr.P.C. For the cancellation of ed to Naveed Akhtar respondent by the learned Additional Sessions Judge, Gujranwala vide order, dated 4-12-1994 in a case F.I.R. No,385, dated 13-8-1994 under section 324/34, P.P.C. With Police Station Satellite Town, Gujranwala.
2. The allegations against the respondent No,1 as narrated in the F.I.R. Are that he armed with pistol caused fire-arm injury to Moazzam on his leg due to which leg was broken.
3. In support of the petition, learned counsel argued that respondent No,1 is hardened criminal inasmuch as is involved in 302, P.P.C. Case vide F.I.R. No,463 of 1992 and also in a case under section 13 of Arms Ordinance XX of 1965 vide F.I.R. No,470 of 1992. It was next contended that after the concession of bail, respondent No,1 being a police official is threatening the petitioner of dire consequences in case the prosecution of the case is continued.
4. Learned counsel for the complainant accompanied by learned counsel for the State defended the order of the learned Additional Sessions Judge granting bail to respondent.
5. I have heard the arguments of learned counsel for both the sides and have gone through the orders of learned Sessions Judge. The learned Sessions Judge while declining bail application of the respondent on 10-10-1994 observed as under:-- "So far as police is concerned, Naveed Akhtar petitioner himself is a police constable and I do not find any mala fide on the part of his own department to falsely implicate him nor there is any reason for the complainant to involve Naveed Akhtar petitioner falsely, to whom active role of firing is attributed and recovery of pistol from his possession connects him with the commission of this offence. The past history of Naveed Akhtar petitioner is that he was already involved in a case under section 302, P.P.C. Which had of course ended, out because of compromise.
' Only two months later, the same learned Sessions Judge vide order, dated 4-12-1994 while granting bail to respondent No,1 observed as under:-.
"There are clear contradictions in the contents of F.I.R. And the M.L.R. Besides cutting in the F.I.R.
Inasmuch as the F.I.R. Is shown to have been registered on the statement of the complainant; therefore, the word was added. The matter does not end here; there is variation between the contents of F.I.R. And the alleged application; even the M.L.R. Is prima facie doubtful. It is stated that Mansoor Akhtar co-accused held the injured in clasp and thereafter, Naveed petitioner fired on his leg. This is prima facie illogical because Mansoor is real brother of present petitioner and the latter could not take the risk of firing at the injured when he was in clasp of Manzoor Akhtar.
(3) The petitioner is a Government servant, he is previous non-convict and no more required by the police for the purposes of investigation." b. I fail to understand as to which was the fresh ground before the learned Sessions Judge to come to the conclusion that the M.L.R. Is prima facie doubtful. Further, the ground that it is prima facie illogical that when the brother of the present respondent No,1 had caught hold the victim, he would take the risk of firing was very much taken into consideration by the learned Sessions Judge while refusing bail to the respondent but later, on the same ground granted bail to the respondent. It is also noteworthy that in the order, dated 10-10-1994 the learned Sessions Judge observed that as Naveed Akhtar (respondent No,1) is a police constable and he did not find any mala fide on the part of his own department to falsely implicate him to whom active role of firing was attributed and weapon of offence was also recovered but in the order impugned before this Court while granting bail it was observed that respondent is a Government servant, previous non-convict and no more required by the police for the purpose of investigation.
7. The different stands taken by the learned Sessions Judge within a period of two months without any material on record smacks of mala fides and something else. Call for a report from the learned Sessions Judge, Gujranwala to explain the special circumstances which prevailed with him while granting bail to respondent No,1. I am presently exercising restraint.
8. The injury caused to the victim as a result of fire made by respondent No,1 has been declared to be serious in nature and caused by a fire-arm. The medico-legal report, therefore, prima facie lends support to the prosecution story. The weapon of offence has also been recovered from the possession of respondent No,1. The discretion, thus, in the peculiar facts and circumstances of the case exercised by the learned Sessions Judge allowing bail to the respondents was arbitrary. The ing order, dated 4-12-1994 passed by the learned Sessions Judge, Gujranwala is, therefore, recalled. However, nothing said in this order shall prejudice the trial of the case on merits.