2011 PLP 392 (MLD)

SARDAR TARIQ MASOOD, J.

Mst. Najjan Bibi petitioner has moved this petition for cancellation of bail after arrest granted to respondent No.2 by learned ASJ, Bahawalnagar on 23-1-2010 in case F.I.R. No. 572 of 2009, dated 20-10-2009 under sections 324, 365, P.P.C. registered at Police Station Saddar District Bahawalnagar.

2. Learned counsel contended that role of respondent No.2 is to have made fire shot with .12 bore gun hitting on the leg of complainant. Further contended that two empties were recovered from the spot and subsequently the gun was recovered from the possession of respondent No.2. It is contended that although section 365, P.P.C. has been deleted by the Police, but from the role of the respondent section 324, P.P.C. is fully applicable, although, the injury was declared as Ghair Jaifah Mutlahimah falling under section 337-F(iii), P.P.C. It is contended that although one of the injured Mst. Raiza and Mst. Shahzadi the abductee had exonerated the accused but even then respondent No.2 was not entitled to the concession of bail after arrest, and the same is liable to be cancelled. Learned counsel for the petitioner has placed reliance on 2007 YLR 2131, 2005 MLD 823 and 1998 PCr.LJ 516.

3. Heard. Record perused.

4. From the order passed by the learned ASJ, dated 23-1-2010 it reveals that one of the injured P.W. namely Mst. Razia Bibi had negated the story of the prosecution, according to which complainant Mst. Najjan Bibi and Mst. Razia Bibi were injured by Muhammad Khan and not by Irshad alias Shaddi, respondent. Hence, regarding causing of injuries to petitioner and Mst. Razia Bibi, there are two versions on the file and according to the learned ASJ, this fact makes the case of respondent No.2 to be of further inquiry.

5. The role attributed to respondent is to have made solitary fire shot on the leg of the complainant. From the perusal of the MLR appended with this petition it reveals that there is burning and blackening around the said injury on medical aspect of the middle of the right leg which indicates that fire shot was made from a very close range. Meaning thereby that if the assailant had intention to kill the injured then he could have selected the most vital part from such a very close range. Even otherwise, said fire shot blow did not cause any injury to the bone and was declared as Ghair Jaifah Multahimah falling under section 337-F(iii), P.P.C. entailing punishment up to 3 years as Ta'zir. So it is yet to be determined by the trial Court whether respondent No.2 had any intention to commit the murder or he had only intention to cause injuries to the complainant/petitioner. Even otherwise, offences regarding injuries do not fall within the prohibitory clause of section 497, Cr.P.C.

6. Considerations for grant of bail and cancellation of bail are totally different. For cancellation of bail strong and exceptional grounds were required and it had to be seen as to whether bail granting order was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice. I have seen the impugned order. There is no such legal flaw as the learned ASJ had discussed all the circumstances of the case and then allowed bail to the respondent. The judgments relied upon by the learned counsel for the petitioner deal with the bail granting order and not with any petition for cancellation of bail, hence, are not relevant in this case. Even otherwise, their facts are totally different from that of the present case.

7. Once a bail was granted by a competent court of law for valid reasons on consideration of materials available before it, then the Court higher in rank would exercise considerable restraint in interfering with such order because liberty of a man was equally precious with law and according to Salutary principles laid down in that regard. In the judgment i.e. Umer Hayat v. The State and others (2008 SCMR 1621) the bail granting order of the accused of that case was cancelled by the High Court, although, the fire shot made by him hit on left knee of the complainant but said injury falls/comes within the ambit of section 337-F(v), P.P.C. but the Supreme Court had granted bail to the accused of the said case while observing that, "Accused had rightly been granted bail by Trial Court and High Court while cancelling the same had failed to observe whether bail granting order was arbitrary, capricious or fanciful."

8. I have gone through the petition filed before this Court. It was not alleged in the application that respondent No.2 had misused the concession of bail granted to him. As there is no allegation of misusing of concession of bail against the respondent, hence, this court cannot interfere with the bail granting order. In the judgment cited as Shahid Arshad v. Muhammad Naqi Butt and 2 others (1976 SCMR 360) the honourable Supreme Court did not cancel the bail of the accused. Although, the Supreme Court was not happy with the said order but in view of there being nothing to show regarding misuse of the privilege of bail, did not interfere with the High Court's order. In another case cited as Muhammad Imran v. Gohar Rehman and another (1982 SCMR 1068), the honourable Supreme Court had not cancelled the bail of the accused of said case, although, the Supreme Court was in disagreement with the observations of the High Court made therein. Consequently, the petition in hand having been found merits less, as discussed above, is hereby dismissed in limine. N.H.Q./N-24/L Petition dismissed.