P L D 2000 Karachi 13 (PLP)

I have heard Mr. Syed Sarfaraz Ahmed learned counsel for the applicants. Mr. Ali Gohar Masroof, learned counsel for the respondents/ accused. It is contended by the learned counsel for the applicants that there are two versions of the incident, that the offences with which respondents 2 to 5 are charged are non-bailable, that in the scuffle P.Ws. Mst. Mehmooda and Mst. Amber sustained injuries, thus, there are reasonable grounds to believe that respondents are guilty of the offence with which they are charged and their bail is liable to be cancelled. The learned counsel for the respondents contended that there was no previous enmity between the parties, that the case has proceeded and all material private witnesses have been examined in the case by the trial Court and one evidence of official witnesses remains to be recorded, that the liberty of bail is not misused by the respondents: that the respondents 3 to 5 are of tender age and school-going boys; that no specific role of causing injuries has been ascribed to the respondents in the F.I.R. It is therefore contended that the application for cancellation of bail merits dismissal. The perusal of record shows that there was no previous enmity between the parties. The plain reading of F. I. R. and other documents filed in support of application reveal that the case is outcome of sudden flare-up. Thus, the common intention or pre-concert is prima facie lacking in the case. The boys/respondents Nos.4 and 5 who were playing cricket game in the street even according to applicants are of tender age i.e. about 16 and 13 years respectively. Thus, their case is covered by the provisions of Sindh Children Act, 1955. It appears that during the said game ball accidentally went inside the house of applicant/party which caused annoyance and resulted in this scuffle. None of the respondents was armed with any weapon but admittedly they were empty handed. The F.I.R. is also silent as to who caused injuries to whom. The incident occurred on 20-8-1997. The interim pre-arrest bail was granted on 4-10-1998. There is no allegation that the respondents Nos.2 to 5 misused their liberty which was granted to them by the Court by. way of bail. In all eight (8) accused were sent up for trial and cancellation of bail has been moved only for four (4) accused for the reasons best known to the applicants, though allegations against all of them are identical. The injuries sustained by P.Ws. Mehmooda and Ambreen are not on vital parts of the body. It is well-settled that in case of two versions of an incident the benefit even at the stage of bail can be given to the accused and not to the prosecution. Thus the plea of learned counsel for applicants on this aspect of the matter is not tenable under law. - The contention of the counsel for respondents that the evidence of all material private witnesses has been recorded by the trial Court and that only evidence of official witnesses is to he recorded is not controverted by the learned counsel for the applicants. It shows that the case is at the verge of completion and cancellation of bail at this stage would not be appropriate and bail application in the circumstances cannot be decided on merits and matter, is to be left open for the trial Court. It is pertinent to mention here that without resorting/exhausting remedy under section 497(5), Cr.P.C. before the Court which granted bail, the practice of moving this Court in each and every case directly as a matter of routine is not approved by the superior Courts. Only in exceptional circumstances the jurisdiction of superior Court can be directly invoked. The offences with which respondents are charged are not punishable with death, imprisonment for life or for ten years. It will not be out of place to mention here that the principles of grant of bail are quite different from the principles for cancellation of hail. The order for grant of bail could only be recalled when the order is unjust, perverse and based on surmises and conjectures. Where sound reasoning is given the order cannot he interfered with lightly. Each case is to be decided on its own peculiar facts and circumstances The facts of one case cannot be considered while deciding another case. The upshot of the above discussion is that the impugned order is well reasoned and it does not suffer from any legal or factual infirmity. Consequently the order with regard to grant of bail is upheld and present application for cancellation of bail stands dismissed. The observations made hereinabove on the merits of case are only tentative and the trial Court shall not be influenced thereby in any manner while deciding the case upon independent evaluation of the evidence brought on record by the parties. N.H.Q./K-82/K Petition dismissed.