P L D 1999 Karachi 455 (PLP)

Complainant Aftab Ahmed has sought the cancellation of bail of accused Muhammad Shoaib and Muhammad Sohail by moving this application. The brief facts as disclosed by complainant in F.I.R. No. 109 of 1999 of Police Station Gizri are that on 10-7-1999 at 19-15 hours he was on his regular walk ac Nisar Shaheed Park when at gate No. l Shoaib and his brother Sohail alongwith one of their companion stopped and asked him that he was surrounded by them and that he should come with them outside the park otherwise they would abduct him. The accused disclosed to him that Dr. Asif his son-in-law had to return some money to them but he has refused and that they had to recover it from complainant. It is further alleged that Shoaib took out dagger in order to kill him but the complainant was saved by P.W. Ahmed Jamali and Security Guard Sher Bahadur. After two days of the incident complainant Aftab Altmed lodged FI.R. stating that he could not lodge the report earlier due to fear of accused. The police registered F.I.R. on 12-7-1999 and arrested accused on 14-7-1999. On 15-7-1999, the accused were released by police. The police again took the accused in custody and applied section 324, P.P.C., which was earlier excluded and on the basis of which they were released. The challan has been submitted and case is pending trial in the Court of IV Additional Sessions Judge, Karachi South: It is contended by Mi. Azizullah K. Shaikh that the accused were released by police under the pressure of political persons and bureaucrats. It is argued that the discretion exercised by learned trial Court is not judicious and has caused miscarriage of justice. The learned counsel has further asserted that the delay in F.I.R. is explained and no medical certificate of accused or any counter F.I.R. was on the record, therefore, the learned trial Court has improperly taken into consideration the aforesaid grounds and granted bail on mistaken assumptions. It is further argued that ingredients of section 324, P.P.C. are fully attracted and the complainant and his family members are still being threatened, as such the bail order is liable to be set aside. Mr. Khawaja Naveed Ahmed, Advocate for applicants has contended that the parties are closely related to each other. Dr. Asif is brother-in-law of accused. Mst. Naheed daughter of complainant is wife of said Asif, who had taken loan of Rs.7,00,000 from the applicant for carrying on business and she failed to return the same, upon which there were some differences between the parties. He has further argued that on the days of incident the accused Muhammad Shoaib alongwith his children and wife were on usual walk in the park where the complainant who is father of Mst. Naheed came alongwith P.W. Ahmed Khan and Sher Bahadur and took up quarrel with accused with the result that they caused injury on his face. It is further urged that the F.I.R. is delayed by about two days and complainant has not received any injury. The alleged dagger is produced by the P.Ws. before police and the statements of witnesses were recorded after 3 days of the incident. He has further argued that applications are moved before the higher authorities of police for lodging the report of accused and a Constitution petition is also filed in this Hon'ble Court for issuing the directions to police to record the F.I.R. of accused Muhammad Shoaib. According to learned counsel this is a case of counter-version and the injuries on the person of accused are suppressed by complainant and witnesses: Mr. Arshad Lodhi learned A.A.-G. for State does not support the impugned bail order. . The perusal of record indicates that this incident had occurred on 10-7-1999 at 7-15 p.m. and the report was lodged on 12-7-1999. The police after registration of F.I.R. recorded statements of P.Ws. Ahmed Khan, Muhammad Bashir and Sher Khan on 13-7-1999. In their police statements all of them have suppressed the injury sustained by accused Muhammad Shoaib. The alleged recovery of dagger is from P.W. Sher Khan. The complainant dad not receive injury at the hands of accused. Perusal of record shows that the parties are closely related. Mst. Naheed daughter of complainant is married to the brother-in-law of accused who had borrowed Rs.7,00,000 from accused. It appears that the parties were hostile to each other and all of sudden when they came face to face, the scuffle started between them and it is difficult to decide at this stage as to which of the party took start. Both the parties are claiming to be victims of other side. Be that as it may, but the benefit of doubt is to go to defence, even at bail stage, specially in view of the fact that no harm is caused to complainant. He has not sustained injury, and on the contrary accused. is injured. The consideration for grant of bail and for cancellation are altogether different. Once bail is granted by a competent Court, then strong and exceptional grounds would be required for its cancellation. Courts competent to cancel bail are always slow to cancel the bail once granted in proper exercise of discretion. To deprive accused on post-arrest bail of liberty is a most serious step to be taken and there is no legal compulsion to cancel the bail of accused. Benefit or reasonable doubt should be determined at bail stage because there is wide difference between jail life and free life. The reference can be made to the cases of Tariq Bashir and others' case PLD 1995 SC 34; Ghulam Rasool v. Khadim Hussain 1991 PCr.LJ 241; Razi Khan v. Muhammad Mushtaq and another 1996 SCMR 984 and Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC

585. At present there are two versions on the record and keeping in view the fact that F.I.R. was delayed by 2 days and subsequently police released the accused. The complainant party suppressed the injury on the person of accused. All these facts create reasonable possibility that the story put forwarded by the defence may have some truth in it and there were no reasonable grounds for believing that accused had committed non-bailable offence. I am therefore, of the considered opinion that the order of grant of bail is neither arbitrary nor capricious and is based on sound judicial principles of administration of criminal Justice and needs no interference. The application is, therefore, dismissed. The above observations are tentative in nature and trial Court will not take into consideration at the time of decision. Further it is observed that, in case, the concession of bail is misused, the trial Court may cancel the same. H.B.T./A-346/K????????????? Application dismissed