2012 PLP 909 (MLD)

RUAF AHMAD SHEIKH, J.

The petitioners seek post arrest bail in case F.I.R. No.206 of 2010, dated 18-8-2010, Police Station Mochh, District Mianwali, under sections 324/148/149/109, P.P.C.

2. Briefly stated the prosecution version as set forth in the F.I.R. is that Muhammad Irfan Khan petitioner armed with Rifle 7-MM and Muhammad Kamran Khan armed with pistol .30-bore along with their co-accused persons, who were also armed with fire arms waylaid the complainant and his brother Muhammad Shafiq, who were going to the fields to look after their crops. Allegedly, Atta Muhammad, co-accused of the petitioners made fire which hit Muhammad Shafiq on his abdomen while the fires made by Muhammad Irfan Khan petitioner with Rifle 7-MM landed on the right side of chest and buttock of the victim. Allegedly, the remaining accused persons also made fires, which landed on different parts of the body of Muhammad Shafiq. Both the petitioners were admitted to bail by the learned Magistrate section 30, Mianwali vide order dated 15-11-2010 on the ground that the case required further inquiry because according to the I.O only one fire was made by Atta Muhammad, their co-accused.

3. The complainant moved an application for cancellation of bail, which was dismissed on 9-2-2011. However, second application for cancellation of bail moved by him was accepted on 16-7-2011 on the ground that both of them repeated the offence and case F.I.R. No.23 of 2011, dated 25-2-2011, under sections 324/148/149, P.P.C. Police Station Mochh, District Mianwali was registered against them.

4. The learned counsel for the petitioners has contended that the petitioners were granted bail for cogent reasons by the Court of competent jurisdiction so the learned ASJ erred in cancelling the same; that even in subsequent F.I.R. i.e. No.23 of 2011, dated 25-2-2011, under sections 324/148/149 P.P.C., Police Station Mochh, District Mianwali both the petitioners have been admitted to bail so no ground for maintaining the order of the learned ASJ is available; that Muhammad Kamran Khan petitioner was declared innocent and he was only 13 years and 8 days old at the time of occurrence and about 13 years and 9 months old now so cancellation of his bail is uncalled for. It is urged that infact the I.O has opined that complainant party has made aggression and that Muhammad Irfan Khan made firing in self defence so had not repeated the offence voluntarily rather was forced to pick up the arm in order to save his life; that the father of the complainant is a Sub-Inspector in the Police and he manoeuvred the false implication and arrest of the petitioners and that the persons of the petitioners are no more required for further investigation.

5. The learned D.P.-G. and the learned counsel for the complainant have vehemently opposed the petition. It is contended that the findings of the I.O. are not binding on the Court; that in fact both the petitioners resorted to violence and caused injuries to Tanveer Ahmad complainant of the case and Muhammad Ali P.W. with fire arms in order to compel them to enter into a compromise so their bail was rightly cancelled by the learned trial Court. It is however admitted that Muhammad Kamran Khan was about 13 years and 1 month old at the time of occurrence.

6. No specific injury was attributed to Muhammad Kamran Khan accused/petitioner in the F.I.R. According to the I.O he was innocent and not involved during the first occurrence and did not make any firing during the second occurrence. He was only 13 years and 1 month old at the time of occurrence and is 13 years and 10 months old now. For all these reasons he deserves a lenient view. The application to his extent is accepted and he is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.

7. Muhammad Irfan Khan had made fire, which hit Tanveer Ahmad, who was complainant of the previous case. The contentions that he was forced to pick up the arm and had resorted to firing in self defence cannot be accepted at this stage as this could be determined only after recording and appraisal of the evidence. The grant of bail in cases falling under the prohibitory clause of section 497, Cr.P.C is a concession and every accused so released is expected to abide by the law and not to resort the violence in order to force the complainant or the witnesses to enter into compromise or resile from evidence. It is true that the bail granted by the Court of competent jurisdiction should not be normally cancelled under section 497(5), Cr.P.C unless it is found that the order is whimsical or fanciful but if it is established that the person released on bail has repeated the offence in order to put pressure on the complainant or witnesses to effect compromise and resile from evidence then naturally he cannot be allowed to remain at liberty and enjoy the fruits of the concession granted by the Court. The bail granted to Muhammad Irfan Khan, petitioner No.1 was rightly cancelled and no ground to extend the same concession again is available. The petition is accordingly dismissed to his extent. However, the learned trial Court is directed to decide the case within three months from the next date of hearing. M.W.A./M-403/L Order accordingly.