2022 PLP 1229 (SCMR)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks cancellation of bail granted to the respondents Muhammad Tofail and Uzair by the learned Additional Sessions Judge, Paharpur (D.I. Khan) vide order dated 02.10.2020, which was upheld by the learned High Court vide impugned order, in case registered vide FIR No. 500 dated 07.08.2020 under sections 324/34, P.P.C. at Police Station Paharpur, District D.I. Khan, in the interest of safe administration of criminal justice.

2. As per the contents of the crime report, on the fateful day and time, the petitioner was in his fields when suddenly the respondents came on motorbike. The respondent Uzair took out pistol and started firing at the petitioner, which hit on his left lumber region. After commission of the crime, the accused fled away. After their arrest, the respondents approached the learned Trial Court for their post-arrest bail and succeeded in getting the relief. Being aggrieved by the order of the learned Trial Court, the petitioner challenged the same before the Peshawar High Court by filing Criminal M. BCA No. 378-D/2020 but the same stood dismissed vide impugned order dated 22.12.2020. He then filed the present petition before this Court. The matter was earlier taken up on 04.11.2021 when this Court while observing that no role whatsoever is attributed to respondent Muhammad Tofail, dismissed the petition to his extent. Therefore, now we are only dealing with the matter of respondent Uzair.

3. The learned State counsel assisted by the petitioner in person contended that the respondent Uzair was specifically nominated in the promptly lodged crime report with the specific allegation of causing firearm injury on the person of the petitioner. Contends that two fires of the respondent Uzair hit the petitioner on his abdomen and the occurrence was witnessed by an independent witness. Contends that the ocular evidence corroborates with the medical evidence but the learned courts below did not take into consideration this aspect of the matter and granted bail on surmises and conjectures. Contends that the learned lower courts deeply appreciated the facts of the case, which at bail stage is not warranted and by allowing bail to the respondent miscarriage of justice has been occasioned. Lastly contends that the orders passed by the learned lower courts being perverse and fanciful, the same may be set aside.

4. On the other hand, learned counsel for the respondent No. 3 has defended the impugned orders. He contended that the considerations for grant of bail and cancellation whereof are entirely on different footings and once bail has been granted to an accused on the basis of tentative assessment of evidence available on record then for its cancellation exceptional reasons are required. He contended that the alleged bullet injuries on the person of the petitioner showed charring of the wounds suggesting that he was shot at from close range but according to the crime report, he was shot from a distance of 7 paces, therefore, the learned courts below while taking note of this fact have rightly allowed bail to the respondent.

5. We have heard learned counsel for the parties at some length and have perused the available record. There is no denial to this fact that the respondent is specifically nominated in the crime report wherein a specific accusation of causing firearm injuries on the abdominal region of the petitioner/complainant is alleged against him. The matter was reported to the Police with inordinate delay but it is an admitted fact that the instant occurrence has taken place in the broad daylight and there is no chance of any misidentification especially when the parties are known to each other. The injuries ascribed to the respondent are supported by medical evidence. The mode and manner of the occurrence is fully established from the record. The offence alleged against the respondent do fall within the prohibitory clause of section 497, Cr.P.C. So far as the argument of the learned counsel for the respondent that the considerations for grant of bail and cancellation whereof are entirely on different footing is concerned, we are conscious of this concept. However, in the instant case the bail has been granted to the respondent against the merits and ignoring the well established principles for grant of bail and when it is clear from the record that the case of the petitioner is fully established leaving no room and the material placed before the Court is such which does not attract the provision of further inquiry, the Trial Court while assessing the material tentatively had to refrain from passing such an order. In the instant case, the learned Trial Court while granting bail has gone beyond its scope, which leads to the conclusion that the order passed is not sustainable in the eyes of law. The Courts of law are supposed to keep balance while adjudicating the matter arid are not supposed to act hypothetically without any concrete reasoning, which is attire of judicial order, which is clearly missing in. this case. As a consequence, we convert this petition into appeal, allow it, set aside the impugned orders passed by the learned High Court as also by the learned Trial Court and cancel the bail granted to the respondent. MWA/A-17/SC Bail cancelled.