2009 SCMR 786 (PLP)

IJAZ-UL-HASSAN KHAN, J.

Both these Petitions bearing Nos.224 and 375 of 2008 have been moved on behalf of Mst. Noor Habib, petitioner, for grant of leave to appeal from the orders dated 18-6-2008 and 19-9-2008 passed by a learned Single Judge of the Lahore High Court, Lahore, in Criminal Miscellaneous. Nos.4132-B and 6169-B of 2008 whereby bail has been granted to Saleem Raza, Akhtar Islam and Aman Ullah, respondents, in case F.I.R. No.2 of . 2008, dated 2-1-2008 registered at Police Station Saddar Sheikhupura, at the instance of Mst. Noor Habib, sister of the deceased, in respect of offences under sections 302/148/149/109 P.P.C.

2. Facts of the case need not be reiterated as the same have been mentioned comprehensively in the bail granting order of Additional Sessions Judge, Sheikhupura, as well in the memos of petitions.

3. Mr. Mazhar Iqbal Sidhu, Advocate, appearing for petitioner, bitterly criticized the impugned orders of learned High Court and attempted to argue that learned Judge in the High Court having discussed the merits of the prosecution case in detail and making deep appraisal of the evidence granted bail to the respondents in complete departure to the principals governing for grant of bail in non-bailable cases and also in the cases which fall within prohibitory clause of section 497, Cr.P.C.; that there was sufficient material on the file consisting of ocular account, medical evidence, recoveries, abscontion and motive, connecting the respondents with commission of offence; that Saleem Raza and Akhtar Islam respondents stand directly nominated in the F.I.R lodged without loss of time for firing indiscriminately along with others, resulting in the murders of Saif Ullah and Shujat Ullah, sons of Habib Ullah; that in such circumstances, if Saleem Raza and Akhtar Islam, respondents had raised the plea of `alibi' they should not have been granted bail when it was open to the trial Court to make necessary probe into that plea and to come to its own conclusion at the time of the trial; that opinion of the police, finding Saleem Raza and Akhtar Islam respondents as innocent, is not based upon any cogent, tangible and reliable material; that the incident took place on 2-1 2008, Saleem Raza and Akhtar Islam, respondents were arrested on 9-2-2008 and the Investigating Officer declared their non-participations in the occurrence on 21-2-2008 which indicates that the investigation has not been carried out honestly; that in a pre-concert and pre-meditated joint attack specification of injuries to the accused, do not matter particularly at bail stage and that prima facie sufficient evidence and material was available on the file connecting the respondents with commission of the crime.

4. Adverting to the case of Aman Ullah respondent in Criminal Petition No.375 of 2008, learned counsel for the petitioner contended that though effective role of firing in the occurrence is attributed to Saleem Raza and Akhtar Islam respondents but Amanullah respondent is a mastermind behind the entire incident and he has hatched the conspiracy against the deceased, thus the concession of bail should not have been extended to him.

5. Mr. Masood Chishti, Advocate, for the respondents and Mian Asif Mumtaz, Deputy Prosecutor-General, Punjab representing the State, on the contrary, refuted the arguments of learned counsel for the petitioner and supported the impugned orders on all counts, maintaining that the High Court made a tentative assessment of the evidence and formed an opinion that in the given facts the question of guilt or innocence of the respondents would need further probe and having found it a case falling within the ambit of subsection (2) of section 497, Cr.P.C. granted bail to the respondents rightly.

6. We have considered the arguments of learned counsel for the parties at considerable length. We have also seen the record with their able assistance.

7. It needs no reiteration that the considerations for the grant of bail are quite distinct from the considerations for the 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, factually incorrect and has resulted in miscarriage of justice. Considering the case of respondents for grant of bail on the above touchstone, we are of the view that learned High Court was not at all justified in extending benefit of grant of bail to Saleem Raza and Akhtar Islam respondents. Both the respondents have been specifically named in the F.I.R for firing effectively along with others, culminating in the murders of two young brothers, aged 35 years and 32 years respectively. Fifty-two crimes empties have been recovered from the place of occurrence and large number of fire-arm injuries are found on the persons of the deceased. In such circumstances when they all had been prima facie implicated, there was no justification for the grant of bail to any of them. Learned counsel for the petitioner rightly contended that whatever pleas they desire to raise in their defence, could be raised at the trial stage. Abdul Ghaffar v. Sakhi Sultan and 3 others 1987 SCMR 1556 and Ehsan Akbar v. The State and 2 others 2007 SCMR 482.

8. The result is that we convert Criminal Petition No.224 of 2008 into appeal, accept the same and cancel the bail granted to Saleem Raza and Akhtar Islam, respondents by the learned Single Judge of the Lahore High Court, Lahore. So far as the case of Amanullah respondent is concerned, we find that though he is one of the accused persons directly nominated in the F.I.R. but a role of conspirator is attributed to him. The main role of firing is assigned to Saleem Raza and Akhtar Islam respondents and others. Bail has been granted to him for reasons which are not open to legitimate exception. Resultantly, Criminal Petition No.375 of 2008 to the extent of Aman Ullah respondent, is dismissed and leave to appeal refused.

9. Needless to add here that observations made above, are tentative in nature and relate to the order in hand only. N.H.Q./N-10/SC Order accordingly.