2008 P Cr (PLP)

HASNAT AHMAD KHAN, J.

Through this application, Aurangzeb-petitioner has sought for the cancellation of the bail granted in favour of Shakeel Ahmed-respondent No.1 in the case F.I.R. No.1 of 2007, dated 1-1-2007, registered with the Police Station Sarai Alamgir, District Gujrat, in respect of the offences under sections 302, 337-A(i), F(ii), H(2), 148, 149, P.P.C. by the learned Additional Sessions Judge, Kharian, vide order, dated 30th of October, 2007.

2. The precise allegation against the respondent, as narrated in the F.I.R., is that on the eventful day, i.e. 1-1-2007 at 12-00 noon, he along with his companions, while variously armed, entered the playground where complainant's son, along with his friends, was playing cricket. They started calling bad names and aerial firing. Hearing the noise, the complainant, along with Tariq Hussain, Muhammad Rafique and Hakim Ali, reached at the spot. They saw that co-accused of the respondent, namely, Mubashir, had caught hold of the complainant's son from his collar and was giving him kicks and fists blows. The son of the complainant resisted to that and ran away and while he was running, Mubashir threw a wicket, on him, which hit on his head and he fell down after receiving an injury. The complainant, along with his companions intervened and tried to rescue his son, upon which Shakeel respondent hit the bat on the head of complainant's son, due to which he received severe injury. The complainant himself and Muhammad Ehsan, P.W., had also received one injury each with club and spade at the hands of co-accused of the respondent.

3. The legal machinery in this case was put into motion on the written application of Haji Aurangzeb-complainant. During the investigation, the respondent was arrested in this case on 27th of January, 2007. After thorough investigation, the prosecution's allegation was partly disbelieved by the Investigating Officer, inasmuch as, the allegation of aerial firing, allegedly, made by the co-accused, was disbelieved and, consequently, offence under sections 337-H(2)/149, P.P.C. was deleted. As a result of the head injury received by Muhammad Sharif, during the occurrence, he unfortunately expired on 5-1-2007, on which, offence under section 302, P.P.C. was also added.

4. The respondent applied for post-arrest bail, which was allowed to him by the learned Additional Sessions Judge, Kharian vide order, dated 30th of October, 2007. Hence this petition.

5. Notice of this petition was issued to respondent No.1. Dr. Tahir Naseer, who had conducted the autopsy of the dead body of Muhammad Sharif (slain) and had described the weapon of offence as cricket bat, was also summoned to explain, as under what authority or law, he had determined the weapon of offence. The said doctor has appeared. He submits that on the basis of the information supplied by the police, he had described the weapon of offence as cricket-bat. Confronted with the query, as under what authority he had done so, he has assured the Court that he would remain careful in future. In view of the said assurance, the matter to his extent stands disposed of with a warning to him to be careful in future.

6. The learned counsel for the petitioner has contended that the bail granted in favour of respondent No.1, being patently illegal and erroneous, is liable to be cancelled; that while granting bail to respondent No.1, the learned Additional Sessions Judge, Kharian, failed to appreciate that the offences, allegedly, committed by the respondent, fall within the prohibitory clause; that respondent No.1 is the principal accused of causing untimely death of Muhammad Sharif, on a petty dispute, therefore the bail granted in his favour, is liable to be cancelled; that the reasons for granting bail in favour of respondent No.1 are airy-fairy and not sustainable in law. To augment his contentions, the learned counsel has placed reliance on the cases of Ehsan Akbar v. The State and 2 others 2007 SCMR 482; Sardar Munir Ahmed Dogar v. The State PLD 2004 SC 822 and Nazir Ahmad v. Ali Gull and others 2004 SCMR 1160.

7. Conversely, the learned counsel for respondent No.1 has opposed the application for the cancellation of bail tooth and nail, contending that, admittedly, respondent No.1 is an accused of causing a single blow with a cricket-bat, which shows that there was no intention to kill the deceased, who, unfortunately, died after 5 days of the occurrence; that the trial has already been commenced and six of the prosecution's witnesses have already been examined. Therefore, at this stage, any finding, returned on the merits of the case, is likely to prejudice the case of either of the parties before the learned trial Court. In support of his arguments, the learned counsel for respondent No.1 has placed reliance on the cases of Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585; State v. Rashid Ahmed and another 1988. SCMR 1129 and Amir Khan v. Mst. Gohran and another 1985 SCMR 1847. The learned Deputy Prosecutor-General has supported the learned counsel for the petitioner.

8. After giving an ardent hearing to the learned counsel for the parties, I have straightaway noticed that no allegation has been levelled by the petitioner against respondent No.1, either of misusing the bail or hurling any threats on the petitioner. It is also an admitted fact that trial has already commenced and six of prosecution's witnesses have already been examined.

9. Besides, the record reveals that during the investigation, the allegation of resorting to firing by co-accused of respondent No.1, was found false. Respondent No.1 has been allowed bail by the learned trial Court with the following observations:-- "Furthermore, there is no allegation of pre-meditation of offence between the accused persons and prima facie, the occurrence seems to be result of sudden flare up. Furthermore, the weapon of offence (bat) allegedly used by the petitioner is not a crime weapon. Petitioner is behind bars since his arrest and the trial against him has not yet commenced." A perusal of the said order reveals that the same is not happily worded but fact remains that returning any finding by this Court for or against that order, would certainly prejudice the case of either of the parties, which at this stage, would not advisable. Besides, the principles for grant of bail and those for cancellation of bail are quite different and the case-law cited by the learned counsel for the petitioner himself reveals that for the cancellation of the bail, strong and exceptional grounds are required and it has to be seen as to whether bail granting order is patently illegal, erroneous, factually incorrect and has resulted in any miscarriage of justice. In the peculiar circumstances of this case, such finding cannot be returned on this petition. Moreover, there is another established principle of law that each criminal case has to be decided on its own merits. The facts of the case relied upon by the learned counsel for the petitioner are quite different, inasmuch as, in each of the said cases, fire-arms were used to murder the deceased therein, which is not the case here. In this case, a cricket bat, an unconventional weapon, was used by respondent No.1.

10. After grant of bail, the Court should be reluctant to cancel the same, especially, after the start of the trial, as has been laid down by the Honourable Supreme Court in the cases relied upon by the learned counsel for respondent No.1.

11. Consequently, the petition, in hand, has been found meritless and is dismissed. However, in the peculiar circumstances of the case, the learned trial Court is directed to conclude the trial expeditiously and preferably within four months from the receipt of copy of this order. The office is directed to immediately transmit the copy of this order to the learned trial Court through the agency of the concerned learned Sessions Judge. It is further observed that during the trial, if respondent No.1 is found guilty of causing delay in trial or hurling threats on the prosecutions' witnesses, the petitioner would be at liberty to move a fresh application for the cancellation of bail before this Court. N.H.Q./A-65/L Petition dismissed.