1988 P Cr (PLP)

S. Sarfraz Ahmed, Asstt. A.‑G. for the State. Date of hearing: 22nd June, 1987. This application for cancellation of bail of respondent No. 1 under section 497(5), Cr.P.C. read with section 439, Cr.P.C. has been presented by Sultan Ahmed, the complainant in F.I.R. No. 110/86, Police Station Manghopir for an offence under section 307/34, P. P. C. 2. The prosecution case is contained in the F.I.R. is that the respondent No. 1 in collusion with Faqir Hussain and Ramzan fire at Arshad and Sher Khan when they were passing near the accused's poultry farm‑ and injured both of them by a fire‑arm. The accused respondent No.1 was arrested on the day of incident viz. 1‑11‑1986. He presented an application for bail before the learned 1st Senior Civil Judge (West) Karachi but it was rejected by him vide order, dated 29‑11‑1986. The respondent No. 1 thereupon moved another application for bail before the learned District and Sessions Judge (West) Karachi, which came up for disposal before the learned 1st Additional Sessions Judge, Karachi (West), who vide his order, dated 27‑12‑1986 granted bail to the respondent No. 1 in appreciation of the fact that the place of Vardat is shown to be the land of the accused and it was yet to be proved by the prosecution as to who was the aggressor. There were counter‑cases between the parties and counter‑F.I.Rs. were lodged regarding the same incident. Moreover, he also noticed that there were certain contradictions in respect of the weapon carried by the accused and that two revolvers were stated to have been used whereas recovery of only one revolver was effected. Over and above all he pointed out that in the F.I.R. it is stated that both the accused were armed with revolvers whereas the witness had said that the present accused was having a revolver. Lastly, he considered that the grievous injury caused to the injured was not on the vital part of the body ‑and hence it was yet to be proved that the intention of the respondent was to cause death of the complainant. 3. Mr. Jawaid Hyder Kazmi, learned counsel for the applicant, vehemently urged for the cancellation of bail as in his submission the learned 1st Additional Sessions Judge has exercised his discretion arbitrarily and without jurisdiction in the facts and circumstances of this case. The learned counsel sought to place reliance on a number of decisions reported in 1975 S C M R 391, 1978 S C M R 155, P L D 1986 Kar. 26, P L D 1984 Kar. 223, 1985 P Cr. L J 24, N L R 1980 UC 202, 1984 M L D 1393, P L D 1973 Pesh 115 and 1985 P Cr. L J 1622. He also placed before me a copy of the order of the Supreme Court passed in Petition for Special Leave to Appeal No. 79‑K of 1986 declining to grant Leave to Appeal against the order of this Court declining to grant bail to the accused in a case wherein counter‑cases were filed by the parties. 4. Mr. S. Sarfaraz Ahmed, Assistant Advocate‑General, submitted that in such cases the determining factor is that who is the aggressor and whether the trial Court has exercised the discretion judiciously. He submitted that in the instant case it is an admitted fact that both the parties have filed F.I.R. pertaining to the same incident, giving the same time and place of occurrence. It is also evident from the record that the place of occurrence was the poultry farm which belonged to the accused‑respondent No.1. The learned Assistant Advocate -General, therefore, submitted that the learned trial Court does not seem to have committed any error in admitting the respondent No. 1 to bail inasmuch as evidence was yet to be led showing that the accused were aggressors. He drew my attention to the principle laid down by the Supreme Court in 1972 S C M R 682, which is as under: ‑‑ There are counter‑versions and it is yet to be seen as to who is the aggressor and whether the respondent has committed an offence punishable with death or transportation for life. It will, however, be open to the petitioner to move the committing Magistrate for the cancellation of bail after some evidence is recorded." 5. The counsel for the appellant, it may further be mentioned, also drew may attention to the affidavit of the injured Arshad filed in these proceedings on 9‑4‑1987 and contended that the respondent has taken undue advantage of his having been released on bail by tampering with the prosecution evidence. The learned A.A.‑G. also, on the other hand, submitted that the tenor of the affidavit of the injured does not show that he has been won over. However, it will be for the trial Court to give due consideration at the relevant time. 7. I have given my earnest consideration to the submissions made by the counsel for the parties and I arid of the opinion that the learned 1st Additional Sessions Judge has not exercised his discretion arbitrarily or in an irresponsible manner. The learned 1st Additional Sessions Judge has given due consideration to the relevant facts and circumstances of the case which are in no manner irrelevant. The large number of cases cited by the learned counsel for the applicant are distinguishable on their own facts. Of these, I would like only to refer to two cases, namely, P L D 19.73 Pesh. 115 and 1985 P Cr. L J 25. In the case of Peshawar there were no counter‑cases between the parties and the principle enunciated for granting of bail in a case under section 307, P.P.C. was laid down by his lordship in the light where of it was found that the trial Court had wrongly allowed the bail to the accused. In 1985 P Cr. L J 25 the Lahore High Court held that every affidavit by a witness could not be made the basis for grant of bail to an accused but it would depend on the facts and circumstances of the case. In the instant case, as already stated above, the learned trial Court has not given any consideration to the affidavit of the injured nor any affidavit was filed before him. This case has no direct hearing on the facts of the instant case. 8. The upshot of the above discussion is that the learned 1stl Additional Sessions Judge has exercised his discretion judiciously and there is, therefore, no reason for me to interfere with his order. 9. In the result the application is dismissed. S.G.D./S‑124/K Application dismissed.