MUHAMMAD AZHAR vs DILAWAR and another

' IJAZ-UL-HASSAN KHAN, J.--- Muhammad Azhar, petitioner, seeks leave to appeal from a judgment dated 26-1-2009 of the Peshawar High Court Peshawar, granting bail to Dilawar, respondent No,1, in case F.I.R. No,981 dated 15-9-2008 registered at Police Station Tangi, Charsada, under section 324, P.P.C.

2. Facts of the case have been mentioned elaborately in the order dated 2-12-2008 of learned Additional Sessions Judge as well as in the impugned judgment and in the memo of petition and need not be reiterated. Suffice is to state that on refusal of grant of bail to respondent No,1 in the above mentioned case by learned Judicial Magistrate, Tangi, District Charsadda, vide order dated 17-11-2008, he filed application seeking bail before learned Additional Sessions Judge, Charsadda, and on its dismissal vide order dated 2-12-2008, the respondent preferred Criminal Miscellaneous.

No,1667 of 2008 before learned Peshawar High Court, Peshawar, which has been allowed granting bail to the respondent through the judgment impugned herein.

3. Mir Adam Khan, Advocate, appearing for the petitioner argued that learned Judge in the High Court has discussed merits of the prosecution case in detail and making deep appraisal of the evidence granted bail to the respondent in complete departure to the principles governing grant of bail under prohibitory clause of section 497, Cr.P.C.; that there was sufficient material on the file consisting of ocular account, medical evidence and motive connecting the respondent with commission of offence; that learned High Court has not properly evaluated the evidence observing that in the cross case bail has been granted to the accused and that impugned judgment is perverse, fanciful, shocking and not sustainable in law.

4. Mian Muhibullah Kakakhel, Advocate, assisted by Hafiz Aman, Advocate, on the other hand, supported the impugned judgment on all counts and prayed for its sustenance.

5. Having heard learned counsel for the parties and re-examining the material on file, we feel that submissions of learned counsel for the petitioner do not carry weight. Learned counsel despite his best efforts could not point out any infirmity or irregularity, legal or factual, warranting interference with the impugned judgment. Learned High Court while reaching the conclusion has assigned sound and valid reasonings in last paragraph of the impugned judgment, which is reproduced hereinbelow for facility sake:--- "There is nothing on the record to show that the petitioner is a previous convict, habitual or hardened, desperate and dangerous criminal. The accused in the cross F.I.R. Have already been released. The petitioner is in continuous custody since 9-11-2008. The investigation in the case is complete and the petitioner is no more required for further investigation and if he is kept in custody, no useful purpose would be served."

6. It needs no reiteration that considerations for the grant of bail are quite distinct from the consideration for cancellation of bail. Once bail has been granted by a competent Court of law strong and exceptional grounds are required for cancelling the same, as held by this Court on a number of occasions. It is to be seen as to whether order granting bail is patently, illegal, erroneous, and factually incorrect and has resulted in miscarriage of justice. Considering the case of the respondent for grant of bail on the above touchstone, we are of the view that learned High Court has rightly reached the conclusion and no exception can be taken to it. The respondent is on bail since 26-1-2009 and he is not shown to have misused the concession of bail. He is entitled to remain on bail.

7. In view of the above, finding no force in this petition, we ID dismiss the same and refuse to ,grant leave.