2009 P Cr (PLP)

SYED SHABBAR RAZA RIZVI, J.

The learned counsel Meeks cancellation of bail of respondent No.2 who was granted bail by the learned Additional Sessions Judge, Lahore vide his order, dated 1-4-2008. The respondent was implicated in F.I.R. No.642 of 2007, dated 13-4-2007, under sections 324, 337-F(v), P.P.C. registered at Police Station Wandat Colony, Lahore.

2. Briefly according to the said F.I.R. respondent No.2 was attributed causing injury with pistol on the left leg (shin).

3. The learned Additional Sessions Judge has written a very detailed order consisting of five pages. The learned Additional Sessions Judge has reproduced the paras of at least four judgments which normally does not happen while deciding a bail application. In para.7 of his order, the learned Additional Sessions Judge observed as under:

"The learned counsel for the petitioner, in the end of his arguments has taken me through the M.L.R. No.241799-220-HS-2007 of Allah Ditta son of Muhammad Din wherein the injury No.1 has been described as "A lacerated wound 2.5 c.m. x 0.6 c.m. D.N.P. c.m. anterior medial department for further management (sic). The local police has not got clarified the injury No.1. The petitioner is behind the bars since his arrest and challan has been submitted in the Court and trial has been commenced. Although the Investigating Officer has stated that he has removed the anomaly of time mentioned in the F.I.R. as 9-30 p.m. and M.L.R. 8-48 p.m. by correcting the same in Zimini No.1 but difference of time mentioned in the F.I.R. and M.L.R. and non-submission of final result of injury fracture, operation notes and treatment lead me to the impression that the case of the petitioner appears to have been fallen within the ambit of further inquiry." The grounds which one can glean from the above para. are:- (i) Nature of injury No.1; (ii) Imprisonment of the respondent since his arrest; (iii) Commencement of trial; and (iv) Anomaly of time in the F.I.R. and M.L.R.

4. The nature of injury was verified by the doctor which is on the record. According to the medical report, injury No.1 caused fractured hence section 337-F(v) was added into the F.I.R. The petitioner remained in jail for four months which is not an unusual time in cases which fall within the prohibitory clause. The commencement of trial itself is not sufficient consideration for granting bail, in offences which are covered by prohibitory clause of section 497, Cr.P.C. However, it can be considered with due weightage if the trial has reached at final stages or where most of the witnesses are already examined. Anomaly of time, according to the learned Additional Sessions Judge himself, had been clarified by the Investigating Officer in the police daily diary No.1.

5. The learned Additional Sessions Judge has totally ignored the fact that at bail stage only a prima facie, view or appreciation of evidence is contemplated under the law of bail. The incriminating material present on the record includes M.L.R. and other Expert opinion which shows that the injured was caused injury by a fire of pistol directly and unequivocally attributed to the respondent. The pistol, weapon of offence, itself was recovered from the respondent, all that is sufficient, prima facie, to connect the respondent with the commission of the offence alleged in the F.I.R. It is true that when a bail is granted, it may be cancelled on strong and exceptional grounds. These grounds include, a bail granting order passed in disregard of known principles and norms of law on the subject; when the bail granting order is erroneously and factually incorrect. The learned Additional Sessions Judge incorrectly observed that nature of injury on the person of injured was not known or had not been established by the prosecution. The record clearly shows that injured was caused a grievous injury which also caused fracture. Likewise, bail can also be cancelled when fresh material has been brought on the record. The F.I.R. was initially registered under section 324, P.P.C. but subsequently section 337-F(v), P.P.C. was also incorporated. The respondent had fired five shots, one of which had hit the petitioner on his leg. In the above circumstances, it is observed that the learned Additional Sessions Judge did not observe or notice all the relevant circumstances while granting post-arrest bail. Apparently, grounds and reasons narrated by the learned Additional Sessions Judge seem fanciful and arbitrary which are also in conflict with the record as pointed out above.

6. As a result of above discussion and reasons, this application under section 497(5), Cr.P.C. is allowed. Consequently, the order of the learned Additional Sessions Judge, Lahore, dated 1-4-2008 is set aside. The concerned authorities may take appropriate action as required under the law and rules. H.B.T./A-140/L Bail cancelled.