1991 P Cr (PLP)

The prosecution story lay within a very narrow compass. On 4-7-1988 at about 8-30 a.m. complainant Abdul Sattar (present applicant) alongwith deceased Abdul Majeed, Punhoon and Muhammad Usman were going to village Chak for making purchases. When they reached near the lands of Younis they saw all the respondents except No.l, present there, who were transplanting paddy crop. When complainant Abdul Sattar and others reached on the Katcha path, Younis, the respondent No.4 armed with Wahola (sharp-edged instrument) came there and inflicted injury on the head of deceased Abdul Majeed, who fell down, whereupon the remaining respondents showered hatchet blows on his head who died on the spot. It is the case of the prosecution that there is enmity between the parties and number of cases are pending against each other and the murder of Abdul Majeed was the outcome of that enmity. On the same day at 10-30 a.m. complainant Abdul Sattar lodged F.I.R. at Chak Police Station.

3. During the course of investigation pre-arrest bail was granted to Abdul Ghafoor, respondent No.2, and Anwar, respondent No.3 by Incharge Sessions Judge, Shikarpur. The present applicant moved an application for cancellation of their bail before this Court and the anticipatory bail granted to them was cancelled by Dr. Tanzil-ur-Rehman, J. (as he then was) vide order, dated 17-10-1988. The respondents Nos. 2 to 10 who were arrested then applied for bail after arrest and their prayer was granted by Sessions Judge Shikarpur. It is in these circumstances that the complainant of Crime No.27 of 1988, Chak Police Station (the present applicant) has approached this Court for the cancellation of bail granted to respondents Nos.2 to 10.

4. I have heard Mr. Nooruddin Sarki, learned counsel for applicant, Mr. Abdul Mujeeb Pirzada, learned counsel for respondents Nos.2 to 10, and Mr. Shoukat H. Zubedi, learned A.A.G. for State. Mr. Zubedi has supported the application for cancellation of bail.

5. It is stated on behalf of the applicant that the names of respondents Nos.2 to 10 find place in F.I.R. and a specific role is assigned to them by the eye?witnesses which get support from the post-mortem report in respect of deceased Abdul Majeed, showing as many as 14 injuries on his person, out of them 12 injuries were caused by sharp-cutting weapons. 1t is, therefore, contended that there appeared reasonable grounds to believe that respondents Nos.2 to 10 have committed the offence of murder falling within the prohibitory clause of section 497, Cr.P.C. and consequently the order by which bail was granted to them, being perverse is liable to be set aside.

6. Mr. Abdul Mujeeb Pirzada, learned counsel for respondents Nos.2 to 10, while supporting the impugned order has contended with force that the discretion exercised by the trial Court should not be interfered with lightly by the High Court which should be loath to cancel bail granted to accused about two years back.

7. The exercise of discretion in the words of Benjamin Cardozo, in `The Nature of Judicial Process', Yale University Press (1921), is:-- "The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primodial necessity of order in all the social life. Wide enough in all conscience is the field of discretion that remains."

8. Umerited grant of bail in a murder case which itself was so dastardly and so gruesome, is bound to produce a sense of despair and frustration and the power of cancellation of bail, though of an nextraordinary nature, is meant to be exercised in cases of this nature.

9. In the case of Harm Khuda Bux and another v. The State reported in P L D 1988 SC 413, a criteria was laid down for the grant of bail and it was held:-- "But considerations regarding bail under section 497(1) and (2) are different:-- (i)???????? If, `there appear reasonable grounds for believing

' as visualised in prohibitory part of section 497(1) bail shall not be granted (exceptions apart); (ii)??????? If, no such positive finding, though tentative, can be rendered against the accused then bail can be refused but ordinarily it is not refused without some cogent reasons: ??????????? (iii)?????? If, however, there is a negative finding though tentative, on consideration of entire material, as envisaged by section 497(2) that `there are no reasonable grounds for believing

' then bail shall not be withheld; (iv)?????? If, there is no finding as is mentioned above in category (iii), bail cannot be granted in a case falling in a prohibitory part of section 497(1) (exceptions apart) merely on the ground that there is scope for `further enquiry'. There will hardly be any case in which there is no scope for further enquiry. This is often being ignored by the Courts."

10. Applying the established principles laid down by the superior Courts for the grant of bail in a case punishable with death or imprisonment for life, to the facts of the present case, it appears to me that the learned Sessions Judge had exercised the discretion improperly. There is satisfactory evidence on record connecting the respondents Nos.2 to 10 with this crime. Besides complainant Abdul Sattar, P.Ws. Punhoon and Muhammad Usman claimed to have witnessed the incident. The incident took place in broad daylight, and there was therefore, hardly any possibility of mistaken identification the names of all the respondents find place in F.I.R., which was lodged with promptitude and a specific role is assigned to each of them. The large number of injuries on the person of deceased prima facie show that a large number of persons had attacked deceased Abdul Majeed. The so said conflict between the ocular evidence and the medical evidence is not really of a nature which may bring the case within the mischief of subsection (2) of section 497, Cr.P.C. The extent to which the witnesses can be believed cannot be determined at this stage, which has to be left to be decided at the appropriate stage.

11. The cases reported as Jaffar and others v. The State 1980 S C M R 784, Abdul Ghaffar v. Munir and 4 others 1981 S C M R 504 and Piaro v. The State and another 1984 P Cr. L J 149, which are cited on behalf of respondents Nos.2 to 10 are distinguishable.

12. Having regard to the above factual and legal position, the application made under subsection (5) of section 497, Cr.P.C. is allowed and the bail granted to respondents Nos.2 to 10 by learned Sessions Judge, Shikarpur, vide order, dated 5-3-1989 is cancelled. The said respondents shall surrender before the trial Court, which will take necessary steps for their arrest, if they failed to surrender before it. H.B.T./A-1062/K??????????????????????????????????????????????????????????????????? Application allowed.