2011 PLP 1941 (YLR)

MUHAMMAD ANWAARUL HAQ, J.

Through this Criminal Miscellaneous No.13664-BC of 2010 as well as Criminal Miscellaneous No.13666-BC of 2010, the petitioner Ghulam Rasool has sought cancellation of bails after arrest granted to respondents/accused Faisal and Muqarrab vide orders dated 20-10-2010 and 31-8-2010 respectively passed by learned Additional Sessions Judge, Wazirabad. I shall dispose of both these petitions through this single order, as arising out of same F.I.R. No.293 dated 19-5-2010 offences under sections 324, 337F(iii), 337L(2), 337A(i) and 337H(2)/34, P.P.C. registered at Police Station Alipur Chatha Gujranwala.

2. Learned counsel for the petitioner contends that respondents are named in the promptly lodged F.I.R. with attribution of specific injuries that find support from the medical evidence; that bail granting orders are not based upon proper appreciation of evidence available on the record; that .44 bore gun has been recovered from the respondent Faisal and during investigation he has been found involved in the occurrence; that respondent Faisal is a desperate and hardened criminal and has previous criminal record; that the learned ASJ did not appreciate the fact that section 324, P.P.C. provides double punishment, one for the attempt to commit Qatl-e-amd and the second for the injury, if any caused.

3. On the other hand, learned counsel appearing on behalf of the respondents/ accused submits that charge has already been framed and case is fixed for prosecution evidence but the prosecution witnesses are not appearing before the learned trial Court that according to the F.I.R., respondent Muqarrab caused injury on the head of Salah Din with the Butt of his rifle but there is no medical evidence to prove the same; that it is clearly mentioned in the F.I.R. that all the five accused fired at the injured Naeem and their fires hit his right leg but it is not ascertainable at this stage that whose fire hit the injured; that according to X-ray report of the injured Muhammad Naeem no bony injury has been seen on his right leg so the injuries attributed to the respondents fall within the purview of section 337F(iii), P.P.C. and maximum punishment provided for the said offence is three years; that the learned trial Court rightly held that application of section 324, P.P.C. needs further inquiry in this matter; that respondent Faisal was released on bail after three and half months of his arrest whereas the respondent Muqarrab remained behind the bars for one month and twenty days.

4. Learned Deputy Prosecutor-General after consulting the record states that as per final report under section 173, Cr.P.C., allegations contained in the F.I.R. were partially found false and it was opined that only Faisal accused made fire at the injured whereas all other accused did not make any fire in the whole occurrence.

5. Arguments heard. Record perused.

6. It has been alleged in the F.I.R. that respondent Muqarrab inflicted blow with the Butt of his rifle at the head of one Salah Din but the same has not been substantiated with any medical evidence. It has also been mentioned in the F.I.R. that all the accused fired at the injured Naeem causing injuries on his right leg but it is yet to be determined that whose fire hit the injured at his leg. There is opinion of Investigating Officer that allegation of firing qua four accused has not been established. Application of section 324, P.P.C. in the peculiar circumstances of this case can only be determined after recording of some evidence. All these facts, prima facie, make the whole case is one of further inquiry into the guilt of the respondents and case against them squarely falls within the purview of subsection (2) of section 497, Cr.P.C. Even otherwise it is well settled by now that considerations for the grant of bail and its cancellation are quite different. Once a competent court grants bail to an accused, very strong and exceptional grounds are required for the cancellation of the same. It was so held by the Hon'ble Supreme Court of Pakistan in the case of "Tariq Bashir and 5 others v. The State PLD 1995 Supreme Court 34" and thereafter the same view has been taken by the Hon'ble Supreme Court of Pakistan in the case of "The State/Anti-Narcotic through Director General v. Rafiq Ahmad Channa 2010 SCMR 580" in the following words:-- "It is settled law that considerations for cancellation of bail are different from considerations for the grant of bail. The bail can be cancelled if the order on the face of it perverse and has been passed in violation of the principles for grant of bail or it is patently illegal erroneous, factually incorrect and has resulted in miscarriage of justice. Reference is invited to State v. Khalid Sharif 2006 SCMR 1265 and Ehsan Akbar v. State 2007 SCMR 482." Learned counsel for the respondents has placed on record certified copy of order sheet of learned trial court, which reflects that charge in the case has already been framed and non-bailable warrants of arrest have been issued against the prosecution witnesses. It is also well settled principle that when case is at trial stage, bail cannot be cancelled except in the extra-ordinary circumstances so that it may not cause any prejudice to any party. It was so held by the Hon'ble Supreme Court of Pakistan in the following cases:-- 1998 SCMR 1691, 1988 SCMR 1129 and PLD 1989 SC

585. Admittedly there is no allegation of misuse of concession of bail against the respondents. Learned counsel for the petitioner has not been able to point out any illegality or jurisdictional defect in the bail granting orders. Therefore, I do not find any good ground to cancel the bails already granted to the respondents by the court of competent jurisdiction. Both these petitions being devoid of any force are dismissed.

7. It is, however, clarified that observations made herein are just tentative in nature and strictly confined to the disposal of these petitions. N.H.Q./G-21/L Petitions dismissed.