2016 PLP 192 (YLRN)

S. 497(5)

Penal Code (XLV of 1860), Ss.302, 337-A(i)(ii), 337-F(i)(v), 504, 147, 148 & 149

Qatl-i-amd, causing Shajjah-i-Khafifah, Shajjah-i-Mudihah, Shajjah-i-Ammah, intentional insult with intent to provoke breach of peace, rioting, rioting armed with deadly weapon, common object

Application for cancellation of bail

Deeper appreciation and detailed assessment of evidence at bail stage was precluded and only tentative assessment, was permissible

While considering the application for cancellation of bail, the court, had to see whether the Trial Court had exercised its discretion properly and had not acted in violation of the settled principles of law and if the order was perverse or fanciful in nature

Nine nominated accused along with two unidentified persons had been alleged to have attacked upon the complainant party with Lathies

No specific injury had been attributed to any of accused persons and there were general allegations

Medical certificate showed that there were only two injuries on the person of the deceased

It could not be said as to who caused the fatal injury to the deceased

Room was left for consideration for Trial Court as to the common intention of all accused to kill the deceased, required further inquiry

Trial Court while granting bail to accused persons on tentative assessment of record, had exercised discretion in accordance with law and had not acted in violation of law

Discretion exercised, did not warrant interference for cancellation of bail

Both applications for cancellation of bail, stood dismissed, in circumstances. [Para. 6 of the judgment] Mst. Fatima v. Abdul Majeed and others 2004 YLR 400; Soobo Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66; Jaffar and others v. The State 1980 SCMR 784 and Nooruddin v. The State 2005 MLD 1267 ref. Saeed Ahmed B. Bijrani for Applicant. ORDER ABDUL RASOOL MEMON, J.

The complainant Ghulam Rasool of Crime No.47/2014 under sections 302, 337-F(v), F(i), A(ii), A(i), 504, 147, 148, 149, P.P.C. registered with Police Station Ghouspur through two separate Crl. Misc. Applications Nos.156/2015 and 48/2015 has impugned the orders dated 26.3.2015 and 09.9.2015 under section 497(5), Cr.P.C., whereby the respondents Rehmattullah, Nawab alias Naboo, Moula Bux and Badal were admitted to post arrest bail under section 497, Cr.P.C.

2. The facts depicted in the FIR lodged by complainant Ghulam Rasool are that the accused Yaseen and others were leveling false allegation of Karap upon Shah Nawaz, his nephew and used to ask them for holding a faisla with them otherwise they would take revenge. On 07.4.2014 complainant Ghulam Rasool along with his cousin Liaqat Ali and nephew Khadim Hussain left their village for Ghouspur and when arrived at Lohar Curve at 11.30 hours they saw and identified Ghulam Yasin, Ihsan, Manzoor Ahmed, Ali Gohar, Moula Bux, Amanullah, Rehmatullah, Naboo, Wadhal and two unidentified persons armed with lathies arrived there. Ghulam Yaseen abused them and caused lathi blow at the head of the complainant while all accused caused lathi blows to Khadim Hussain and Liaqat. On their cries, villagers reached and accused ran away. Thereafter complainant brought the injured at Police Station and after getting the letter went to Hospital where after providing treatment to the injured came to the police station and at 1900 hours lodged the FIR under sections 337-A(i), (ii), F(i), 504, 147, 148, 149, P.P.C. and thereafter injured Khadim Hussain succumbed to his injuries on 08.7.2014, therefore, section 302, P.P.C. was also added. The trial Court vide impugned orders granted bail to the respondents on the ground that there are general allegations against the respondents/accused; no specific injury has been attributed to any of them; FIR is delayed.

3. Learned counsel for the complainant has attacked upon the order of the trial Court on the ground that the names of the respondents/accused appear in the FIR being armed with lathies. He has contended that it has been alleged that in furtherance of their common object by forming an unlawful assembly they have attacked upon the complainant, his two nephews Liaqat and Khadim who sustained injuries, in the result, on the next day Khadim Hussain expired in Hospital, therefore, all the accused were vicariously liable for the death of deceased as they in pre-planned manner have attacked upon the complainant party, therefore, the order of the trial Court for grant of bail to the respondents/accused is arbitrary, perverse and liable to be set aside. In support of his contention he has placed reliance on the case of Mst. Fatima v. Abdul Majeed and 2 others (2004 YLR 400).

4. Mr. Habibullah G. Ghouri, Advocate appearing on behalf of respondents in both the applications has resisted, the contention of the learned counsel for the complainant/applicant on the ground that principles for grant of bail after arrest and its cancellation are altogether different and for cancellation of bail complainant has to show that the order for grant of bail on the very face of it was perverse, fanciful in nature and not warranted by law. Mere fact that there could be another opinion on the basis of tentative assessment of the evidence would not be a sufficient ground for cancellation of bail. In support of contention he has placed reliance on the case of Soobo Khan v. Muhammad Ajmal and 2 others 2006 SCMR

66. Coming to the merits of the case, he submits that admittedly there is enmity between the parties. All the accused have been alleged to be armed with lathies meaning thereby they have no intention to cause the death of the deceased. Moreover there are general allegations and which of the accused caused fatal injury requires consideration regarding common intention of the accused to kill the deceased. In support of his contention he has placed reliance on the case of Jaffar and others v. The State (1980 SCMR 784). He further submits that on tentative assessment of material available on record it appears that complainant just after the incident went to police station and got letter for treatment but did not record FIR or incorporate the names of accused in daily diary and later on after 7/8 hours the complainant again came to police station and recorded the FIR which gives presumption to the mediation, consultation and false implication of the innocent persons. In support of his contention he has placed reliance on the case of Nooruddin v. The State (2005 MLD 1267). He lastly submits that after grant of bail the respondents/accused have never misused the concession of bail and as per report of the trial Court the complainant and his witnesses are avoiding to proceed with the matter, therefore, no case for recalling the order of the trial Court for grant of bail has been made out.

5. Learned Assistant Prosecutor General Sindh for the State has supported the contention of the learned counsel for the complainant.

6. It is settled principle of law that deeper appraisal and detailed assessment of evidence at bail stage is precluded and only tentative assessment is permissible. It is also settled principle of law that while considering the application for cancellation of bail the Court has to see whether the trial Court has exercised its discretion properly and has not acted in violation of the settled principles of law and whether order either is perverse or fanciful in nature. Considering the above principle of law, with the assistance of learned counsel for the complainant, respondents as well as learned APG I have gone through the relevant record. It is an admitted fact on record that nine nominated accused along with two unidentified persons have been alleged to have attacked upon the complainant party with lathies. No specific injury has been attributed to any of the respondents and there are general allegations. As per medical certificate there are only two injuries on the person of deceased Khadim Hussain i.e. (i) Lacerated wound 5 cm x 1.5 cm on right occipital region of skull, bone is exposed and (2) Contusion 5 cm x 5 cm on left parietal region of skull. From the available material on record it could not be said as to who caused the fatal injury to the deceased thus it left room for consideration for trial Court as to the common intention of all the accused to kill the deceased requires further enquiry. In this contention the counsel for the respondents has rightly relied upon the case of Jaffar and others (Supra). Moreover there is delay in lodging of FIR for about 7-1/2 hours and prior to lodging the FIR, complainant has appeared at Police Station for getting letter for referring the injured to Hospital but he neither recorded FIR nor mentioned the names of accused in daily diary. Thus in the circumstances it appears that the trial Court while granting bail to the respondents on tentative assessment of record has exercised discretion in accordance with law and has not acted in violation of law. Thus the discretion exercised does not warrant interference for cancellation of bail. Consequently, both the applications stand dismissed in the above terms. HBT/G-14/Sindh Appeal dismissed.