1997 P Cr (PLP)

Petitioner seeks cancellation of bail granted to respondent No. 1 by Magistrate, Section 30, Rawalpindi and confirmed by the learned Additional Sessions Judge, Rawalpindi vide his order, dated 18-9-1995.

2. Brief facts of the case are that on the report of the petitioner case F.I.R. No.531, dated 11-10-1994 under section 324/34, P.P.C. was registered at Police Station Civil Lines, Rawalpindi. It is alleged that on the day of occurrence at 6-30 p.m. when the petitioner was sitting on the roof of his house for flying kite, respondent No.l came there and called him out. The petitioner accompanied him towards Nala Lai where he saw Muhammad Nazir alias Jeeru co-accused standing there. At that moment, respondent No.l asked his co -accused that he (the petitioner) be provided the taste of previous quarrel. Muhammad Nazir brought out pistol from his Dub and fired at the petitioner hitting his left arm. He fired for the second time, which hit the petitioner on his left flank. On receiving injuries, the petitioner fell down and respondent, No. l caused injuries to him with his kicks. According to the petitioner, the occurrence was witnessed by some persons. Motive for the occurrence, according to the petitioner, was that some quarrel took place between him and the co-accused Muhammad Nazir alias Jeeru.

3. Respondent No. l was granted bail by the Magistrate Section 30 vide his order, dated 18-12-1994. It was withdrawn by the learned Additional Sessions Judge vide his order, 6-2-1995 and he was taken into custody. The respondent submitted another bail petition after arrest but that, too, was rejected by the learned Additional Sessions Judge vide his order, dated 3-4-1995. Respondent No. 1 moved another bail petition before the Magistrate Section 30 on the ground of minority. It was accordingly granted vide order, dated 8-5-1995 passed by the Magistrate Section

30. This order was again challenged and the cancellation was sought but the same was dismissed by the learned Additional Sessions Judge vide his order, dated 18-9-1995.

4. In support of the petition for cancellation of bail, learned counsel for the petitioner submits that the learned Magistrate was not competent to allow bail to the respondent especially under the circumstances when the same ground was already taken in his first bail petition and the same was duly discussed and considered by both the lower Courts. The respondent/accused having no fresh ground was not entitled to bail. Bail has been allowed to respondent No. l on production of medical certificate issued by the jail doctor. According to the learned counsel, the medical certificate is not based on ossification test regarding age. Learned counsel further submits that because of the injuries, the petitioner was operated upon by the doctor about a month ago. Learned counsel is of the view that since the respondent is connected with the crime, hence the bail granted to the respondent and confirmed by the Additional Sessions Judge may be withdrawn.

5. On the other hand, this application has been opposed vehemently by the learned counsel for respondent No.

1. He submits that no grievous injury has been attributed to the respondent/accused and only kicks have been attributed to him; that motive has not been attributed to the accused/respondent; that motive has been attributed to Muhammad Nazir alias Jeeru co-accused who is still under arrest; and that medical certificate has now been tendered showing the age of the respondent/accused. Learned counsel further submits that there are four injuries on the person of the alleged injured which are of lacerated nature, which means that no injury can be attributed to the present respondent.

6. I have heard the learned counsel for the petitioner, as well as the learned counsel appearing for respondent No. 1 and the learned State Counsel. I have also gone through the record especially the order whereby the Magistrate Section 30, granted bail to the respondent and also the order confirming bail passed by the learned Additional Sessions Judge. Admittedly, respondent No. 1 was empty-handed. He was not armed with any weapon of offence. It is alleged in the F.I.R. that he used kicks but the medico-legal report does not support it. Injury No. 1, which is a lacerated wound simple in nature, was caused with blunt weapon. No grievous injury is attributed to the respondent/accused. Motive is also not attributed to him. The co-accused who is attributed firing is still under arrest. Nothing incriminating has been recovered from the respondent. In view of the above, I see no illegality in the order passed by the lower Courts especially under the circumstances when the challan has already been completed and sent to Court for further proceedings. The principle applicable for grant of bail is different to the principle applicable for cancellation of bail. Bail can be withdrawn only when the order is perverse and not supported by good reasons. Here, in the present case, the order of the learned Magistrate was confirmed by the learned Additional Sessions Judge. So, there is concurrent finding of fact in favour of the accused. Hence the present application has no merit especially for withdrawing the bail allowed to the accused/ respondent. It is accordingly dismissed. H.B.T./M-2666/L Petition dismissed.