2008 PLP 886 (YLR)

ABDUL SHAKOOR PARACHA, J.

Nasir Ali son of Jaffar Ali petitioner/ complainant of the case registered vide F.I.R. No.509/2005, dated 25-9-2005 under sections 324/148/149, P.P.C. at Police Station, Saddar Hafizabad, through this petition under section 497(5), Cr.P.C. seeks cancellation of bail granted to Tanveer Iqbal son of Muhammad Yousuf respondent by the learned Additional Sessions Judge, Hafiz Abad vide his order dated 24-1-2006.

2. According to the contents of the F.I.R. respondent Tanvir Iqbal while armed with pistol along with co-accused on the night between 24/25th of September, 2005 at 2-00 a. m. made lurking trespass into the Dera of the petitioner, awoke the brother of petitioner namely Rashid Ali, demanded Rs.25,000 from him along with vacation of the land measuring 11 Marlas and to leave the passage being used by him to which brother of the petitioner replied that they should settle the matter with his brother and father. Co-accused of respondent caught hold of Rashid Ali from his arms and legs and gagged his mouth, while respondent No.1 fired with pistol by placing it on the temporal region of brother of the petitioner which went through and through. On hearing the report of fire petitioner along with Niaz Ahmed and Saddaqat Ali rushed towards the Dera and in the meanwhile, respondent with his co-accused decamped from the spot.

3. Respondent Tanvir Iqbal applied for his post-arrest bail which was dismissed on merits by the learned Judicial Magistrate, Hafizabad vide order dated 1-11-2005. Bail was also declined to him by the learned Additional Sessions Judge Hafizabad vide his order dated 21-12-2005. Subsequently, respondent Tanvir Iqbal was admitted to bail by the learned A.S.J. Hafizabad through the impugned order dated 24-1-2006.

4. Learned, counsel for the petitioner contends that respondent Tanvir Iqbal was attributed fire-arm injury which hit Rashid Ali, the brother of the petitioner on his temporal region which went through and through and the same is corroborated by the statement of the other injured P. Ws. Further, the medico-legal report supports the version of the petitioner. Accused-respondent was nominated in F.I.R. with a specific role; the alleged offence falls under the prohibitory clause of section 497, Cr.P.C. The bail application of the respondent was rightly dismissed by the. learned Additional Sessions Judge, Hafizabad on 21-12-2005 after taking into consideration the entire facts of the case, thereafter, he was not entitled to be released on bail enabling him to take part in L.L.B. Part-I (Supplementary) Examination 2006, unless the respondent was able to make out a case under section 497(2), Cr.P.C. Further contends that if at all the Court was inclined to grant bail to enable the respondent to appear, in the L.L.B. Part-I. The trial Court should have released the respondent only for the purpose of examination and thereafter he should have been sent to the judicial lock-up.

5. Conversely, the learned counsel for the State assisted by the learned counsel for the respondent contends that Tanvir Iqbal respondent No. 1, has been allowed bail on humanitarian ground. He was released on bail to enable him to appear in L.L.B. Part-I (Supplementary) Examination 2006 and that very strong and exceptional reasons are required to cancel the bail of the respondent who has not interfered with the investigation of the case or tampered with the evidence or created hurdle in the completion of the trial. The report under section 173, Cr.P.C. has been sent to the Court, therefore, he be allowed to defend himself and the bail granted to him by the learned Additional Sessions Judge Hafizabad may not be cancelled.

6. I have heard the arguments of the learned counsel for the parties and perused the record.

7. It is the settled law that unless there is a finding of the Court to the effect that "there are no reasonable grounds for believing that the accused has committed a non-bailable offence the bail cannot be granted by recording of finding of "further inquiry". See case of Mst. Resham Jan v. Abdul Rehman 1991 SCMR 1849. In the present case, respondent Tanvir Iqbal's bail application was rejected by the learned Additional Sessions Judge, Hafizabad on merits on 21-12-2005 after taking into consideration the entire facts of the case. Subsequently, respondent was released on bail through the impugned order dated 24-1-2006 by the learned Additional Sessions Judge by passing the following order:

"Perusal of the record shows that petitioner has affixed Roll Number slip with his photograph issued by Punjab University for L.L.B. Part-I (Supplementary) Examina?tion 2006 and this fact has not been rebutted by the complainant. In this way it can rightly be presumed that the petitioner is going to appear in the examination and admittedly if he is not allowed to appear in the examination then he would definitely suffer from loss of one academic year. Therefore, I am of the view that such persons should be encouraged and for betterment in the society educated people should be increased and encouraged instead of Criminals.... therefore, the petitioner is admitted to bail."

8. No reasons whatsoever have been given for granting bail to the respondent, the order was without jurisdiction. As earlier observed that without there being a finding that "there are reasons for believing that respondent has not committed a non-bailable offence", the bail could have not been granted. The case of the respondent did not fall under subsection (2) of section 497, Cr.P.C. therefore, he was not entitled to the grant of bail. The respondent was nominated in the F.I.R. with a specific role of firing on the person of Rashid Ali which hit him near the ear which went through and through and the same was corroborated by the M.L.R. The offence does not fall outside the ambit of section 497, Cr.P.C. For the above all stated reasons I hold that the learned Additional Sessions Judge has illegally exercised his jurisdiction while granting bail to the accused respondent. I agree with .the learned counsel for the petitioner that if the purpose of grant of bail was to save the loss of one academic year and facilitate the respondent to appear in L.L.B. Examination, aforesaid, then the trial Court should have released the respondent only for the purpose of appearing in the examination and thereafter he should have been sent to the judicial lock-up.

9. For what has been discussed above, this application is allowed. Resultantly the order dated 24-1-2006 granting bail to respondent No.1 by the learned Additional Sessions Judge, Hafizabad is recalled.

10. Before parting with the order, I may observe that post-arrest application for bail of the petitioner has not been disposed of on 24-1-2006 on merits by the learned Additional Sessions Judge, therefore, if the petitioner moves an application for bail and makes out a case on merits, the learned Additional Sessions Judge may consider the same on its own merits without being influenced by the present order of cancellation of bail. H.B.T./N-69/L???????????????????????????????????????????????????????????????????????????????????? Bail cancelled.