1990 PCr (PLP)

Iqbal Mahmood Awan and Rab Nawaz Khan Nizai for Petitioner Muhammad Arshad Khan for the State Malik Nur Muhammad Awan for Respondents Ata Muhammad petitioner has moved this petition for cancellation of bail allowed to the respondent by the Additional Sessions Judge, Mianwali, in a case registered him under section 302 P.P.C.

2. The prosecution version is that on 23-3-1988 at about 5-30 p.m. an altercation took place between Muhammad Farooq deceased and Faiz Muhammad respondent. The deceased abused the respondent and slapped him. The respondent, who was accompanied by his brother Bashir Ahmed, left the place throwing a challenge that he would teach him a lesson. Soon after he appeared on the roof of his house armed with a gun and after raising a Lalkara fired at the deceased hitting left side of his chest, as a result of which he died soon after.

3. The respondent moved an application in the Sessions Court, Mianwali, which came up for hearing before 11r. Riaz-ul-Hassan Alvi, Additional Sessions Judge, who dismissed the same on 19-7-1988. Thereafter, the respondent moved another applicant for bail, which was entrusted to Mr. Khizar Hayat, Additional Sessions Judge who allowed it on 13-2-1989. The relevant portion of his order reads as under. "The complainant, the deceased, the accused and the eye-witnesses belong to the same tribe and belong to the same Mohallah. There is no previous ill-will in between them. The narration of facts in the F.I.R. prima facie goes to show that the occurrence took place surprisingly and that the occurrence is result of fight of children. Keeping in view the above facts in mind, and after tentative assessment of the facts, I prima facie find that the occurrence is result of grave and -sudden provocation with no premeditation. Hence the accused is admitted to bail:

4. Learned State counsel has supported the prayer for the cancellation of bail. I have asked the learned counsel for the respondent if he is in a position to defend the order reproduced above and he too has expressed his inability. It is the case of a single accused and the occurrence took place in the broad daylight. It was not at all a fit case for the grant of bail, particularly when no fresh ground had been taken in the subsequent application. On the face of it; the order of the Additional Sessions Judge allowing bail to the respondent is perverse. This petition is, therefore, allowed. The bail of the respondent is cancelled. He shall be taken into custody forthwith and sent to jail. S.A./A-931/L Bail cancelled.