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Criminal Miscellaneous No. 609‑B of 1:982, decided on 28th April, 1982.

‑‑S. 497 (5)‑Bail, cancellation of‑Cancellation of bail of petitioner, accused of offence under section 307, P.P.C., pressed on grounds, (i) Sessions Judge after dismissing application for bail had no fresh ground before him to alter his earlier order, (ii) accused had inflicted grievous injuries and as such not entitled to be released on bail pending decision of case‑Trial of case already commenced and discretion exercised by Sessions Judge in granting bail to respondents not appearing to be arbitrary‑Cancellation of bail declined, in circumstances.

Mian Muhammad Akhtar for Petitioner.

Ch. M. Anwar Khan for the State.

Munir Ahmad Bhatti for Respondents.

Date of hearing : 28th April, 1982.

This is an application moved by Muhammad Riaz complainant seeking cancellation of bail allowed to Muhammad Aman, Muhammad Aslam son of Rehmat Khan and Muhammad Aslam son of Ali Muhammad respondents on 18th February, 1982 by the learned Additional Sessions Judge, Sargodha.

2. The relevant facts of the case are that the aforementioned respondents alongwith their co‑accused were involved in a case under sections 307/148/149. P.P C. registered on 9th April, 1981 at Police Station, Shahpur Saddar, District Sargodha. The respondents alongwith their co‑accused moved application for their release on bail before the learned Additional Sessions Judge, Sargodha. The application of their co‑accused was accepted and they were allowed to be released on bail but the respondents did not press their application and the learned Additional Sessions Judge on 27th January, 1982 dismissed the same. The respondents again moved another application which was rejected on 2nd February, 1982 by the same Court on merits. They thereafter moved last application seeking similar relief and the learned Additional Sessions Judge, Sargodha vide his order dated 18th February, 1982 allowed the respondents to be released on bail.

3. The main point urged by learned counsel for the petitioner in support of this application is that the learned Additional Sessions Judge had dismissed the application for bail on 2nd February, 1982 and there was no fresh ground before him to alter his earlier order and release the respondents on bail. It was also contended on merits that the respondents had inflicted grievous injuries to Allah Bakhsh (P.W.) and they were not entitled to be released on bail pending decision of the case against them.

4. Learned counsel for the respondents, on the other hand, submitted that the application subsequently moved by the respondents was on fresh grounds and the learned Additional Sessions Judge was competent to decide the application on new grounds and release the respondents on bail. It was submitted that the ground of enmity was specifically asserted in the subsequent application wherein it was alleged that on the complaint of Muhammad Aman, respondent No. 1, the complainant in this case was convicted under section 307, P.P.C. It was also submitted that the next ground taken in the subsequent application was that as per finding of the investigating Officer recorded in daily diary dated 26th November, 1981 Muhammad Aman, respondent No. 1 did not participate in the occurrence. It was next submitted that on merits the Investigating Officer after investi gation recommended for deletion of section 307, P.P.C. and its substitu tion for offence under section 325, P.P.C. but the Prosecution Branch in the secrecy of office again added the offence under section 307, P.P.C. and thus the case of the respondents was of further inquiry entitling them to remain on bail. It was next submitted that the challan in the case had already been submitted and part of the evidence had been recorded but the prosecution witnesses deliberately are avoiding appearance so as to avenge their enmity by seeking cancellation of bail allowed to the respondents. It was lastly submitted that number of persons had appeared before the Investigating Officer to vouchsafe the innocence of respondent No. 1. It was not a fit case where the discretion exercised by the learned Additional Sessions Judge required interference.

5. Learned counsel for the State instructed by the police officer present in Court stated that the case has already been sent to the trial Court where some evidence had already been recorded. He pointed out that the State has not moved application for cancellation of bail and the discretion exercised by the learned Additional Sessions Judge in releasing the respondents on bail does not merit interference.

6. After hearing learned counsel for the parties and perusing t documents on the file it has come to light, that the learned Additional Sessions Judge while releasing the respondents on bail did not refer to hi earlier order rejecting similar application a fortnight prior to the impugned order. However, the discretion exercised by him, does not appear to be arbitrary. There were fresh grounds as noticed in the submissions of learned counsel for the respondents and the respondents were entitle to be released on bail as their case was of further inquiry.

7. In any case the trial of the case having already commenced am not inclined to interfere in the impugned order whereby the learned Additional Sessions Judge has exercised discretion in releasing the respondents on bail. This petition is accordingly dismissed.

M.Y.M. Petition dismissed.

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