2012 PLP 27 (YLR)

FAZAL-I-HAQ ABBASI, J.

Through this single order, I intend to dispose of Criminal Miscellaneous Application bearing No.271 of 2011, moved by Shafique son of Fida Muhammad, for his release on bail and Criminal Miscellaneous No. 11 of 2011, moved by Muhammad Naeem complainant, for cancellation of bail granted to Siraj accused/respondent, in case F.I.R. No. 76 dated 19-9-2011 under sections 302/307/ 324/148/149, P.P.C. registered at Police Station Sakhakot.

2. Shafique accused was charged for firing at Muhabat while Siraj was charged for giving kick blow on the mouth of Muhammad Naeem complainant, thereby causing injury to his teeth. Mohabat Khan succumbed to the injury on 23-9-1980.

3. Learned counsel for petitioner argued that Shafique was attributed a single shot on the person of Muhabat and there is no allocation of repetition of fire shot. He further contended that the Doctor, who examined Mohabat in injured condition, opined that he was in a state of shock. Therefore, his statement recorded during investigation, is doubtful. He further submitted that it was a sudden fight. Accused/petitioner is aged about 75 years, having heart disease and was operated on 27-4-2009, as such, being sick and infirm person, is entitled to the concession of bail.

4. Learned A.A.-G. and counsel for the complainant argued that the accused/petitioner is charged in a promptly lodged F.I.R. and there is no evidence that he cannot be treated in jail hospital. They further argued that the accused/petitioner remained absconder for 30/31 long years, therefore, he is not entitled to the concession of bail.

5. Learned counsel for the complainant/petitioner argued that Siraj accused/respondent was given a specific role in the F.I.R. for causing injury to the teeth of complainant and he was wrongly granted bail by the court below.

6. On the other hand, learned counsel for the accused/respondent opposed the bail cancellation on the ground that according to F.I.R. Siraj was charged for causing injury on the teeth of complainant but no such injury was found.

7. Arguments heard and record perused.

8. Perusal of record shows that Shafique accused is charged for causing fire arm injury to Mohabat due to which he died on 23-9-1980. So far arguments of learned counsel for the accused/petitioner regarding his ailment is concerned, bail to an accused person, involved in a non-bailable offence, can be granted on medical ground if the sickness or ailment with which the accused is suffering is such that requires specialized treatment or that the accused cannot be properly treated within the jail premises and keeping him in jail would likely to be hazardous to his life. But in the present case, there is no such opinion on the record. There is nothing in the medical certificates, attached with the bail application, that accused cannot be treated in the jail or keeping him in jail, would be detrimental to his life. In this view of the matter, bail application moved by Shafique is dismissed. So far the bail cancellation application against Siraj accused/respondent is concerned, he was attributed the role of giving kick blow on the mouth of complainant but according to the doctor two small lacerated wounds of 1/2 x 1/4 were found on the nose and left upper lip of the complainant. No injury to teeth was found by the doctor. Even otherwise criterion for grant of bail and cancellation of bail is quite different. Once bail is granted by the court of competent jurisdiction the same cannot be cancelled unless the bail granting order is found arbitrary, fanciful, perverse or against the record or have been obtained through fraud or misrepresentation. In this view of the matter, bail cancellation application moved against Siraj accused/respondent is hereby dismissed. H.B.T./363/P Order accordingly.