1990 PLP 51 (MLD)

Sh. Nazar Hussain for Respondent. Hamesh Gul Khan for the State. Date of hearing: 4th October, 1989. I have, by my short order dated 4th October, 1989, cancelled the bail granted to the accused. The following are the reasons for doing so.

2. This is an application by Shadid Khan for cancellation of the bail granted to Wali Khan respondent who is facing charges under sections 307 and 353 read with section 34 of the Pakistan Penal Code.

3. The facts are that on 23‑11‑1988 at 1025 hours, Shadid Khan complainant, who was serving as a Teacher in Government Primary School, Shahbaz Kakki, at a distance of one kilometre from the Police Station, lodged a report wherein he charged the accused‑respondent Wali Khan to have fired at him ineffectively with a shotgun of .12 bore at the exhortation of his father Raees Khan. The occurrence was alleged to have been witnessed by Ayub Khan, Head Master and the children who were studying in the School. The motive set up in the F.I.R. was that the complainant had a dispute over a land with the father of the respondent which had been compromised. Nonetheless, the respondent and his father had attempted at his life.

4. Soon after the occurrence on 23‑11‑1988 the accused‑respondent had absconded and was only arrested on 28‑1‑1989.

5. The plea of bail before the Ilaqa Magistrate failed. The learned Additional Sessions Judge, however, extended the concession‑W bail to, the accused‑respondent on 13‑2‑1989. The learned Additional Sessions Judge was persuaded to grant bail to the respondent on two‑fold grounds: firstly, that the investigation had been completed and detention of the respondent was not necessary; and, secondly, that the charge against the accused was of ineffective firing.

6. Learned counsel for the petitioner contended that the learned Additional Sessions Judge appears to have been unnecessarily influenced by the fact that although the respondent is said to have fired at the petitioner with a gun, yet the attempt had proved ineffective. He submitted that the allegation against the petitioner is of using fire arm in broad daylight, in firing at the complainant while he was teaching a class in a school which allegation is substantiated by the statements of the Head Master recorded under section 161, Cr.P.C. and those of two students, therefore, there was no justification to release him on bail in such a serious case. 7: As against this, learned counsel for the accused‑respondent contended that in cases of ineffective firing, the grant of bail is a general rule while refusal is an exception. Relying on Nazar Muhammad v. State (1977 P Cr. L J 277), he argued that the provision of section 495(5) Cr. P. C. regarding cancellation of bail is not to be made available to. private parties to satisfy their grudges against each other or to use as means of wreaking their vengeance. This authority, I am afraid, has no application to the facts of the present case.

8. The learned counsel appearing on behalf of the State has not, however, supported the application for cancellation of bail.

9. In the instant case the charge of firing at the petitioner against the accused‑respondent while the former was teaching, prima facie, gets support not only from the statements of Ayub Khan Head Master and the two students, namely Iqbal Khan and Muhammad Bashir, but also from recoveries of eight pellets, 4 cardboards and one cardboard disc from the venue of the crime and pellet marks on the wall at point No.7 of the site plan:

10. It is now almost a settled law that even when a person shoots at another person with a gun, rifle or other fire‑arm in a manner and under such circumstances that if the shot had hit the latter, it would have killed him, but he misses his aim, the offence would still be one under section 307, P.P.C. although even a scratch is not caused by such firing. The learned Additional Sessions Judge has failed to notice that the severity of the offence is not reduced merely because the victim is lucky enough to escape unhurt or survives after having been hit. Last but not the least, is the unexplained noticeable abscondence of the accused from 23‑11‑1988 to 26‑1‑1989 which the learned Additional Sessions Judge has altogether ignored while granting bail to the accused‑respondent. In Awal Gul v. Zawar Khan (P L D 1985 S C 402) it was held by the august Supreme Court that "unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding merits of the case, the principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct)". It was, therefore, ruled that "such an accused cannot then seek a reward for such a conduct (in becoming fugitive from Law)".

11. After careful consideration of all these circumstances, I hold the view that release on bail of the accused‑respondent was arbitrary and perverse. The bail granted to the accused‑respondent is accordingly cancelled. He has since surrendered to the custody and has been sent to jail. N.H.Q./925/P Bail cancelled.