1989 P Cr (PLP)

I had issued show-cause notice to the respondents in response to which, they have appeared in this Court. I have heard Mr. AA. Mohammadally, learned Additional Advocate-General an behalf of the State, Mr. Muhammad Ali Sheikh, learned counsel appearing for the respondents and have gone through documents produced in the above reference. It has been contended by Mr. AA. Mohammadally, learned Additional Advocate-General appearing for the State that respondent Ghulam Qadir was empty-handed at the time of incident, and the only allegation against him was that of catching hold of the deceased. That under section 497, Cr.P.C. the powers of the Sessions Court and that of this Court are concurrent, and since the Sessions Judge has exercised discretion, the bail can be cancelled only when the order was perverse, foolish or illegal. In the present case, no such question was involved and the learned Sessions Judge had exercised discretion in grant of bail, it will not be appropriate to interfere and cancel bail of respondent Ghulam Qadir at this stage. As far as the case of Ali Akber was concerned, it was contended by Mr. AA. Mohammadally; Additional Advocate-General that the allegation against the respondent was that he had caused hatchet blow with blunt side on the back of deceased Bijar but this fact was belied by medical evidence inasmuch as the post-mortem report does not show that the deceased had suffered blunt weapon injuries on his back and, therefore, it was a case of further inquiry. However, he further pointed out that the learned Sessions Judge who had granted bail to the respondent has since been transferred, it should be left open to the present Sessions Judge, so that if any tangible evidence is brought on record against respondents, the learned Sessions Judge may cancel their bail. Mr. Muhammad Ali Sheikh, learned counsel appearing for the respondents has adopted the arguments of Mr. AA. Mohammadally, learned Addl. A.-G. I have considered the contentions of the learned counsel. The allegation against respondent Ghulam Qadir was that he had caught hold of deceased, while co-accused gave him hatchet blows. There is no allegation that he was armed wit any weapon or caused any injury to the deceased. In the case of Basharat Hussain v. Ghulam Hussain etc. 1978 SCMR 357; the accused was granted bail on the ground that only allegation against him was that he had caught hold of the deceased when his son hit the deceased on his head and thereby he was charged with facilitating murder of the deceased, and therefore, it was a case of further inquiry. The complainant Basharat Hussain filed petition for Special Leave to Appeal but the same was dismissed by their Lordships of the Supreme Court with the observations that:- ?The High Court had exercised the discretion vested in it properly and it was not a fit case for interference.? In the case of Ahmed v. Shero and 8 others 1979 S C M R 526; the respondents were granted bail by the High Court and the complainant Ahmed filed petition for Special Leave to Appeal but the same was dismissed by their Lordships of the Supreme Court with the observations that:- "The learned Judge in the High Court has given reasons in support of his decision to allow bail which are neither whimsical, arbitrary nor capricious. In addition thereto four persons from the side of the accused had also sustained injuries and, therefore, it was a case of further inquiry, and the petition was dismissed. In the case of Mohsan v. The State 1977 P Cr. L J 159; it was observed ?Due to clear inconsistency between ocular and medical evidence the case falls within the purview of clause (2) of section 497, Cr.P.C., and therefore, the accused was granted bail.? It is also worthwhile to point out that the learned D.P.P. who appeared before the learned Sessions Judge on behalf of the State did not oppose the grant of bail to the respondent Ghulam Qadir. In view of the above factual as well as legal position, I am of the considered view that the orders passed by the learned Sessions Judge, granting bail to the respondents do not call for interference at this stage and, therefore, the suo motu reference is accordingly rejected. However, if any tangible evidence is brought on record against the respondents at the trial, the learned trial Judge will be at liberty to cancel their bail. SA./S-376/K ????????????????????????????????????????????????????????????????????????????????????? Reference dismissed.