1989 PLP 698 (MLD)

Mian Dilawar Mahmood for Petitioner. Sarfraz Hussain for the State. Ehtsham Qadir for Respondent No.1. The respondent, who is an accused in case F.I.R. No. 205 dated 30‑6‑1987, under section 302/307/34, P.P.C., registered at Police Station Shahpur, District Sargodha, was granted bail by Additional Sessions Judge Sargodha, vide order, dated 30‑8‑1987.

2. The petitioner, who is complainant in the case, has moved for cancellation of bail granted to the respondent. 2‑A. According to the F.I.R., the respondent armed with rifle, accompanied by Mahmood, Mukhtar and Muhammad Yusaf, armed with guns, had launched an attack on the complainant party. The respondent initiated the attack by raising a Lalkara that they will avenge Shah Jahan for taking away the property, and by firing a shot from his r#le, which, however, proved ineffective. Thereafter, Mahmood, co‑accused of the respondent fired a shot which struck Shah lehan on chest and abdomen, as a result of which he fell down and died. Then all the accused started firing but none was injured. All the accused started running away while firing. Mahmood who had lagged behind, fell down. He was caught by the complainant and Muhammad Akbar P.W. Mahmood aimed gun at Muhammad Akbar, whereupon Muhammad Akbar gave him 2‑3 knife blows. On receipt of injuries, Mahmood fell down. The P.Ws. lifted the gun of Mahmood. In the meantime, the respondent turned back and by aiming rifle at the P.Ws. commanded them to throw down the gun, which they did on account of fear. The respondent picked up the gun and went away alongwith Mahmood, co‑accused.

3. Learned counsel for the petitioner contended that the learned Additional Sessions Judge failed to take into consideration the fact that it was the act of the respondent which forced the P.Ws. to release Mahmood who had given fatal blow and that it was the respondent who had initiated the attack by raising Lalkara and by firing the first shot from his rifle and so the order passed by the learned Additional Sessions Judge cannot be termed to have been passed keeping all aspects of the case in view.

4. Learned counsel for the respondent, on the other hand, while defending the impugned order, submitted that the occurrence has been misreported, that in fact Mahmood, co‑accused of the respondent was attacked and given injuries by the complainant party and that one of Mahmood's servants had fired a shot at Shah Jehan to rescue Mahmood. However, he conceded that this version of the accused party was not accepted by the Investigating Agency. Learned counsel took up the plea that the bail once granted to an accused is normally not cancelled by the superior Courts unless a strong case of injustice is made out or some patent facts are found to have been ignored while granting bail.

5. There is no dispute about the point that normally orders of bail passed by the lower Courts is not interfered with and the discretion exercised by the lower Courts is not interfered with by the superior Courts. However, this is an accepted principle that if any Court while granting bail fails to take into consideration certain facts which are reported in the F.I.R. or have come to light A during investigation, the bail orders can be set aside if those facts affect the merits of the case. In the present case, the learned Additional Sessions Judge while granting bail to the respondent in paragraph 6 of the order has observed. The petitioner has been just attributed ineffective firing upon the victim and P.Ws. He did not inflict any injury to either of them, so to determine his liability for committing the offence, this case is found of further enquiry'. It is quite clear from the above observations of the learned Additional Sessions Judge that he has failed to take into account two important aspects, B mentioned in the F.I.R. i.e. that the attack was initiated by the respondent, and that he had got Mahmood, co‑accused released from the P.Ws. by a desperate act. The contention of learned counsel for the respondent that the petitione should have first moved the Court which granted the bail, has not weighed with C me, as the cancellation of bail is not being sought on the ground that the respondent has misused the concession of bail. The respondent was granted bail by the Additional Sessions Judge only two months after the registration of the case. For all the reasons enumerated above, this petition is accepted and the bail granted to the‑respondent by the Additional Sessions Judge, Sargodha vide order, dated 30‑8‑1987 is cancelled. M.Y.H./U/27/L Bail cancelled.