1989 PLP 1676 (MLD)

Amin Lakhani for Respondent No. 2. (called absent). Muhammad Hayat Junejo for Respondent No.

3. Respondents Muhammad Wamiq and Muhammad Zahid were involved in Crime No. 78 of 1988, Police Station Soldier Bazar, Karachi under section 307/452/34 P.P.C. During the course of investigation Muhammad Zahid was arrested. He applied for bail which was granted by IVth Additional Sessions Judge (East), Karachi, vide order dated 20‑4‑1988. Respondent Muhammad Wamiq applied for pre‑arrest bail before Sessions Judge (East), Karachi. He was allowed interim bail on 10‑4‑1988, which was confirmed on 3‑5‑1988. Being aggrieved the applicants have approached this Court for cancellation of bail granted to above respondents.

2. It is alleged that respondent Muhammad Zahid wanted to see Mst. Sultana, a worker in the garment factory of complainant Salim Ali, but he was‑not given access, which annoyed him and he left after giving threats. After a short while respondent Muhammad Zahid again came to the garment factory with Muhammad Wamiq. They entered into the factory. Respondent Muhammad Zahid fired at P.W. Maqbool Ahmad by means of revolver/pistol, while Muhammad Wamiq caused him Danda blow. Maqbool Ahmad was shifted to Civil Hospital, Karachi. On 14‑3‑1988 at 3.30 A.M. the report of this incident was registered.

3. I have heard Mr. Muhammad Ali Shaikh, learned counsel for applicants and Mr. Muhammad Hayat Junejo, learned counsel for respondent Muhammad Zahid. I have also heard Mr. Abdul Ghafoor Mangi, learned A.A.G. for State, who has not supported the application for cancellation of bail.

4. The grounds which prevailed upon learned Additional Sessions Judge in allowing bail to respondent Muhammad Zahid are clear from the following extract of the impugned order:‑‑ "I have perused the final medical report dated 10‑4‑1988, wherein Medical Officer has stated that injured Maqbool was admitted in the hospital on 14‑3‑1988, and was discharged on 26‑3‑1988, hence it is crystal clear that injured has not remained in hospital as indoor patient for 20 days. Only one injury has been given by the applicant/accused to the injured as stated by the complainant in F.I.R., and certified by the doctor, hence intention of the applicant accused is yet to be established that he wanted to murder injured Maqbool, requires further enquiry."

5. Dr. Liaquat Ali Memon, who was summoned to assist the Court, as the supplementary medico‑legal ‑report was not legible, however, stated that there was fracture of socro‑pubic part of illiam, hence the injury was certified as grievous. The bail was, however, granted to respondent Muhammad Zahid as according to learned Additional Sessions Judge the case of the prosecution was such, which required further inquiry. The case of Falak Sher and another v. The State, reported in 1979 S C M R. 103, relied upon by Mr. Muhammad Hayat Junejo, learned counsel for Muhammad Zahid, is relevant in a situation like the one under consideration. At page 105, the Supreme Court observed as follows:‑‑ "The High Court, it appears, did not upset the finding of the learned Sessions Judge that it was a case of further inquiry, but making appraisal of the merits in its own way, cancelled the bail without expressing any opinion on the subject of further inquiry. This was illegal, because in our view, a High Court would not be justified to interfere in discretionary orders of Courts below where the said Courts feel and from perusal of record specifically hold that a case is such which needs further inquiry, and pass the relevant order on that ground and basis, unless the order impugned is perverse, arbitrary, fanciful or is not borne out, from the record.

6. The order dated 20‑4‑1988, passed by learned IVth Additional Sessions Judge (East), Karachi is not a perverse or arbitrary order‑.

7. The case of Muhammad Wamiq stands on better footing. He was not named in F.I.R. The injury by means of Danda attributed to him is not borne out from the medical report. No exception, therefore, can be taken to the order granting him pre‑arrest bail passed by learned Sessions Judge (East), Karachi on 3‑5‑1988. The allegation that he had threatened the witnesses is also not substantiated from the record.

8. No case for interference is made out and the application for cancellation of bail granted to respondents Muhammad Zahid and Muhammad Wamiq stands rejected. N.H.Q/S‑389/K Application dismissed.