2003 PLP 3167 (YLR)

Date of hearing: 5th November, 2002. Through this application under section 497(5), Cr.P.C. the petitioner seeks cancellation of bail of respondent in case F.I.R. No.77 dated 4‑3‑2002 .under sections 337‑A(i), 337-(iii), 337‑F(i)/34, P.P.C. registered at Police Station Sadar. Dunyapur, District Lodhran.

2. Brief facts as per F.I.R. are that on 8‑12‑2001 Muhammad Ishaq complainant of this case was sleeping in his house when four unknown persons armed with different weapons entered his house; that they started giving beating to him; that one of them inflicted injury with a dagger on right eye and nose; that his wife also received an injury caused with a dagger on her hand that during the scuffle veil of the accused armed with dagger became loose and the complainant and others identified him as Abdul Sattar alias Sattaroo respondent herein. That on their making hue and cry Arshad and Abdul Rauf, resident of the locality alongwith others came to the place of occurrence whereupon the accused persons fled away. The cause of enmity is that Abdul Sattar had obtained a loan of Rs.1,00,000 (one lac) from complainant and when the complainant asked him to return the loan money, a quarrel took place between them and the occurrence took place as a revenge nourished by the accused persons. The complainant has specifically mentioned in the F.I.R. that he as in a position to identify the remaining three persons; that all of the four accused persons were with muffled faces.

3. Bail before arrest was confirmed by the learned Sessions Judge vide order dated 2‑5‑2002.

4. Learned counsel for the petitioner contends that it was not a fit case for grant of bail before arrest as ulterior motive was not available to falsely implicate the respondent in this case: It is further contended that F.I.R. is corroborated by medical evidence according to which injuries mentioned in the F.I.R. were found on the person of the complainant and his wife. It is also contended that delay of 2 months 26 days is sufficiently explained and on the next day early in the morning on 9‑12‑2001 at 6‑00 a.m. both the injured P.Ws. were medically examined and they were taken to the doctor by the police. It is also contended that the complainant and his wife had received serious injuries and it was not a fit case for the grant of bail.

5. Learned counsel for the respondent has opposed this petition on the ground that the criteria for the grant of bail and cancellation of bail is entirely different. Learned Sessions Judge has exercised his discretion in favour of the respondent. He relied upon the following judgments:‑‑ "1990 PCr.LJ 630; 1979 SCMR 479. " Also contends that injuries are of ordinary nature and main injury on the person of the complainant was caused by blunt weapon, hence medical evidence is in contradiction with the ocular account. It is further contended that there is delay in lodging the F.I.R. of about 3 months which has not been sufficiently explained.

6. Learned counsel for the State has opposed this application on the ground that section 337‑A(iv), P. P. C. has been subsequently added which is punishable with 10 years R.I. and it was not a fit case for bail before arrest.

7. I have heard the learned counsel for the parties and also perused the record carefully. The allegation against respondent No.1 is that he while armed with Khanjer alongwith 3 other persons had entered the house of the complainant and gave fist as well as Khanjer blows on the person of the complainant and his wife in connivance with each other. The grounds urges for the grant of the bail before arrest were not sufficient for such relief as the criteria for grant of bail before arrest and bail after arrest is, entirely different. Bail before arrest can only be granted to an accused person who appears to have been falsely implicated with ulterior motive and mala fide intention but no such plea is available in the case in hand. Learned Sessions Judge has confirmed the bail before arrest of respondent No.1 on flimsy grounds which were not sufficient for the grant of extraordinary relief to respondent No.1 who is involved in a case punishable with 10 years' R.I. and grant of bail before arrest has hampered the investigation: Therefore, I accept this application and cancel bail of respondent No.1 granted by the learned Sessions Judge, and he shall be taken into custody. It is however, clarified that the learned lower Court can consider the case of the respondent No.1 for the grant of bail after arrest without being prejudiced by‑ the order of this Court. H.B.T./M‑2036/L Bail cancelled.