1994 P Cr (PLP)

Abdul Ghafoor petitioner and complainant of the case F.I.R. No.188, dated 20-5-1993 under section 324/34, P.P.C. registered against Muhammad Ashraf respondent and others at Police Station Saddar Arifwala, District Sahiwal, has moved this application under section 497(5), Cr.P.C. for cancellation of bail of Muhammad Ashraf respondent granted to him by the learned Judicial Magistrate Section 30, Sahiwal vide order, dated 24-6-1993 on the ground that doctor has not ruled out the possibility of self-infliction of fire arm injury on the person of Taj Din attributed to the respondent.

2. According to the allegations against the respondent in the F.I.R., he armed with .12 bore pistol alongwith his co-accused launched a murderous assault on Taj Din during the night of 19/20 May, 1993, when Taj Din injured in the company of Abdul Ghafoor complainant, Muhammad Anwar and Muhammad Rafiq P.Ws. was sitting in the melon field. The shot fired by the respondent caused fracture of tibia of left leg of Taj Din.

3. The respondent after refusal of bail before arrest by the learned Sessions Judge, Sahiwal on 17-6-1993 was taken into custody and only after seven days was allowed bail by the learned Judicial Magistrate Section 30, Sahiwal on 24-6-1993.

4. It has been argued by the learned counsel for the petitioner that learned Judicial Magistrate by way of deep appraisal of evidence, yet to be recorded, extended concession of bail to the respondent, who has been assigned a direct role of causing fire-arm injury to the injured and was also found involved in the case by the D.S.P.

5. Learned counsel appearing on behalf of respondent submitted that there being no allegation of misusing of concession of bail by the respondent, the learned Additional Sessions Judge has dismissed the application for cancellation of bail. He contended that in view of the opinion expressed by the doctor, the allegation against the respondent required further inquiry.

6. I have given due consideration to the arguments advanced by the learned counsel for the parties and also thoroughly examined the record. The respondent has been attributed a fire-arm injury of the size of 5 c.m. x 9 c.m. x bone deep causing fracture of tibia with serious damage to the left leg. It is stated that the doctor in answer to the query of Investigating Officer has not ruled out the possibility of self-infection of the injury, and respondent was also found innocent during the investigation but record did not contain any material in support of the opinion of the doctor and Investigating Officer in favour of the respondent. The respondent except depending upon the opinion of doctor and the Investigating Officer based on no reason has not been able to produce any sound evidence to substantiate this perfuctory opinion.

7. I find that the learned Judicial Magistrate by way of elaborate sifting of evidence in minute detail and deep appraisal of material, gave a decision on bail application involving a pre judgment of the evidence proposed to be produced. The opinion of the doctor having no nexus with the innocence of the respondent is not much relevant to bring the case within the purview of section 497(2), Cr.P.C. The size and nature of injury with no ambiguity excluded the possibility of self-infliction of the same as stated by doctor, hence, this suggestive opinion with no reason could not assume the character of positive evidence to be-given weight to call it a case of further inquiry.

8. Similarly, the opinion of the Investigating Officer, if any, declaring the respondent innocent without any supporting material was no ground to allow him bail. Unless there are sound and convincing reasons declaring the case doubtful leading to an apparent inference that the accused was not connected with commission of an offence, the concession of bail on artificial ground was not proper exercise of discretion.

9. In the present case, .the role of causing fire-arm injury to Taj Din assigned to the respondent by the eye-witnesses is supported by the medical examination of the injured. The learned Courts below have given much weight to the opinion of the doctor and Investigating Officer based on no sound reason and evidence. Mere opinion of a Police Officer, as a rule cannot he used for grant of bail in absence of the material, on the basis of which such an opinion was formed. The Court has to examine the data available in the case to find out, whether reasonable grounds exist to connect the accused with the crime and the relevant material to be assessed tentatively for grant of bail in a case, is the police report, the nature and the credentials of evidence, which is proposed to lead, coupled with the surrounding circumstances relevant to the case. Unless it is held that there are no reasonable grounds to believe that a person has committed a non-bailable offence, mere need for further inquiry is ID no ground to grant of bail.

10. Undoubtedly the injury attributed to the respondent was not on the vital part of the body, but in case of fire-arm, the nature and seat of injuries cannot provide a valid ground to be pressed for the grant of bail. The offence allegedly committed by the respondent falls within the purview of section 337(3)(iii), P.P.C. providing punishment of imprisonment which may extend for E a term to ten years and there appearing reasonable grounds to believe that the respondent has committed a non-bailable offence, the discretion exercised by the learned Judicial Magistrate in granting bail to the respondent in the circumstances of the case was injudicious and improper.

11. For the foregoing reasons, I accept this petition and bail allowed to Muhammad Ashraf respondent is hereby cancelled. N.H.Q./A-522/L Bail cancelled.