1988 PLP 338 (SCMR)

MUHAMMAD HALEEM, C.J.--In Criminal Review Petition No.10-R of 1987, the learned counsel for the petitioner has taken exception to the following sentence in a paragraph of the judgment at page 7. "Yet the fact that on his Lalkara they brought out their own pistols (which they had brought with them to the High Court) and started firing indiscriminately, injuring four persons, coupled with the background of hostility between the parties indicates that they had fired with the intention to kill and not merely to injure or scare away the members of the other side." In so far as Criminal Review Petition No.4-R of 1987 is concerned, no exception could be taken as Abdul Kabir was armed with a pistol and fired at Saroosh Mirza, Munawar and Shakil Asghar and thus caused to them the bullet injuries at the Lalkara given by Akhlaq alias Guddoo. The case of Nazir Ahmad is different. It is pointed out that he was not armed with a pistol but a Danda was ascribed to him, and, therefore, he could not be said to have been armed with a pistol and to have caused the result as mentioned in the paragraph. There was, therefore, an error of fact on the face of the judgment and this resulted in an erroneous consideration of his case, and for that reason needs review as the contention has substance. We agree with the assessment of the High Court that bail allowed to Nazir Ahmad does not need to be cancelled. Here I would like to add that the counsel for the respondent in this petition conceded that the case of Nazir Ahmad has distinguishable features. Accordingly, we would amend this paragraph to read as under: "Although it could be argued that the two respondents did not share the common intention of killing Akhtar Mahmood with Akhlaq alias Guddoo co-accused, yet the fact that on his Lalkara Kabir Ahmad brought out his own pistol (which he had brought with him to the High Court) and started firing indiscriminately injuring four persons, coupled with the background of hostility between the parties indicates that he had fired with the intention to kill and not merely to injure or scare away the members of the other side, although he did not succeed in killing any one yet he was guilty of an offence punishable at least with imprisonment for life, which falls within the prohibiting clause of section 497(1), Cr.P.C. As such grant of bail, not to speak of 'pre-arrest', to him was not justified in the circumstances of the case." As the case of Nazir Ahmad is distinguishable from that of Abdul Kabir, we would insert another paragraph in our judgment next after it; "We agree with the High Court in its analysis that no case is made out for the cancellation of bail to Nazir Ahmad." The operative part of the order also needs correction in the light of the above. It is amended to read as under: "As a result of the above discussion, we partly accept the appeal, set aside the order of the Additional Sessions Judge granting bail to Abdul Kabir. His bail is cancelled and he may be taken into custody forthwith. As for Nazir Ahmad, the appeal for the cancellation of his bail is dismissed. On the conclusion of the hearing of these petitions, we had passed a short order as under in order to implement our conclusions: "For the reasons to be recorded later, we would dismiss Criminal Review Petition No.4-R of 1987, but allow Criminal Review Petition No.10 of 1987 with the result that petitioner Ch. Nazir Ahmad is allowed bail on the same terms on which he was granted bail by the Additional Sessions Judge, Lahore, and Appeal No.55 of 1986 for cancellation of his bail is rejected." M.I. /N-44/S Order accordingly.