2016 P Cr (PLP)

MUHAMMAD YAWAR ALI, J.

Through this petition filed under section 497(5), Cr.P.C. the petitioner seeks cancellation of post-arrest bail allowed in FIR No.471/2014 dated 12.08.2014 for offence under sections 302, 109, 148, 149, P.P.C. registered at Police Station Saddar Jaranwala District Faisalabad to respondent No.1 by the learned Additional Sessions Judge, Jaranwala vide order dated 19.02.2015.

2. Arguments have been heard and the record perused.

3. According to the FIR during the intervening night of 11th and 12th of August 2014 Ali Raza respondent No.1 who was armed with repeater shotgun fired two times causing two grievous injuries to the deceased Latif Khan, father of the complainant. All this happened in the dead of the night. The deceased was riding his motorcycle while the complainant and Muhammad Khalil Khan also on a motorcycle were lagging just behind him. The complainant and Muhammad Khalil Khan saw the occurrence taking place clearly because of the headlight of their motorcycle. Respondent No.1 Ali Raza fired two shots with his repeater shot gun hitting the deceased father of the complainant on his neck and just below the right shoulder. In the Post Mortem Examination Report it has been opined that the time which elapsed between the death and the Post Mortem was ten hours. In the final opinion it was stated that the death occurred due to haemorrhage and shock resulting from injuries Nos.1, 2, 4, 5, 6 and 7 which were sufficient to cause death in the ordinary course of nature and would include the injuries attributed to respondent No.1 Ali Raza. The Post Mortem Examination Report lends credence to the prosecution case. During the investigation which took place respondent No.1 Ali Raza was declared to be innocent and a discharge report was prepared and submitted before the Judicial Magistrate. The Judicial Magistrate did not agree with the same. It is trite that ipse dixit of the police officials would not be binding on the court. The learned Additional Sessions Judge, Jaranwala while granting bail to the accused Ali Raza vide order dated 19.02.2015 lost sight of the fact that all the accused were nominated in a promptly lodged FIR and a specific role was ascribed to them. Two firearm injuries which clearly contributed towards the death of Latif Khan father of the complainant were attributed to respondent No.1 Ali Raza and none else. The learned Deputy District Public Prosecutor was unable to convince this Court that the Investigating Officer had cogent reasons for holding that the accused Ali Raza never participated in the commission of offence. It is trite that sanctity is to be attached to an FIR more so if it has been lodged promptly. No plausible explanation is forthcoming as to why the complainant would leave the real culprits and in their place implicate the present accused with the commission of offence immediately after the offence had been committed. Respondent No.1 Ali Raza has been charged with an offence which not only falls within the prohibitory clause of section 497, Cr.P.C. but also attracts capital punishment. The august Supreme Court of Pakistan in Malik Javaid Iqbal v. The State and others (PLD 2015 Supreme Court 250) has held in clear terms that an accused charged with an offence which falls within the prohibitory clause cannot be allowed post arrest bail unless his case attracts subsection (2) of section 497, Cr.P.C. In the instant case there is no cogent material available on the record to make the case against respondent No.1 one of further inquiry calling into his guilt. In normal circumstances this Court would not cancel bail earlier allowed to an accused but where the bail granting order is perverse, patently illegal and passed in violation of settled principles for the grant of bail this Court will not hesitate in interfering and cancelling bail earlier allowed to him. The State/Anti-Narcotic through Director-General v. Rafiq Ahmad Channa (2010 SCMR 580) may be read with considerable advantage.

4. For what has been stated above this petition is accepted and bail earlier allowed to respondent No.1 Ali Raza by the learned Additional Sessions Judge, Jaranwala vide order dated 19.02.2015 is cancelled. Respondent No.1 Ali Raza shall be taken into custody and sent to the judicial lockup as an under trial prisoner. SL/M-313/L Application allowed.