2019 Y L R Note 4
[Balochistan]
Before Abdullah Baloch, J
MUHAMMAD ARIF ---Applicant
Versus
MUHAMMAD ASHRAF and another ---Respondents
Criminal Bail Cancellation Application No.341 of 2018, decided on 5th September, 2018.
Criminal Procedure Code (V of 1898) ---
----S. 497(5) ---Penal Code (XLV of 1860), Ss. 324 & 34---Attempt to commit qatl -i-amd,
common intention---Application for cancellation of bail ---Findings of Court causing
prejudice to either party --- Effect --- Applicant/ complainant contended that Trial Court
had found that offence under S.324, P.P.C. was yet to be determined and the case was
covered under S.337- D, P.P.C., findings so recorded in the order caused prejudice to the
case of prosecution --- Respondent / accused contended that he had not misused the
concession of bail in any way ---Record revealed that both the parties had lodged FIRs
against each other with regard to the same incident, and admittedly injuries were received
by both sides thus, Trial Court had rightly found that the present case was one of further
inquiry ---Record also reflected that all the ingredients were lacking in favour of the
applicant ---No complaint existed on record that after release on bail the accused was
reluctant to appear before the Trial Court ---Court while d ealing with the application for
bail had to form its opinion tentatively on the basis of available record and ought to have used the wordings with great care and caution, keeping into consideration that such wordings or findings must not prejudice the case of either party ---Findings by the Trial
Court, in the present case, would prejudice the case of the prosecution as the Trial Court
at pre- mature stage had formed opinion that case was covered under S.337- D, P.P.C.
instead of S.324, P.P.C.---High Court expunged the findings of the Trial Court to such
extent ---Application for cancellation of bail was declined, in circumstances.
Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66 and Ehtesab
Bureau, Azad Jammu and Kashmir v. Muhammad Hanif Shaikh and anot her 2004 PCr.LJ
996 ref.
Muhammad Akbar Shah for Applicant.
Muhammad Younas Mengal, Additional P.G. for the State.
Muhammad Aslam Chishti for Respondent.
Date of hearing: 3rd September, 2018.
ORDER
ABDULLAH BALOCH, J .---This order disposes of instant application for bail
cancellation filed by the applicant (complainant) Muhammad Arif against the accused
(respondent No.1) Muhammad Ashraf, who was granted bail in the FIR No.66 of 2018
dated 3rd April 2018 of Police Station Gwalmandi Quetta, under Sections 324, 34, P.P.C.
by the learned Additional Sessions Judge -VII Quetta, vide order dated 18th May 2018.
2. Facts of the case are that on 3rd April 2018, the applicant (complainant) Dr.
Muhammad Arif lodged the above FIR agains t accused Muhammad Anwar, Muhammad
Ashraf (respondent), Muhammad Akbar and Usama with the averments that he along with his family members is residing at Haji Ghaibi Road Quetta and by profession he is a doctor. On the day of occurrence, he along with his house inmates were sleeping in their house, when at about 12.05 a.m. the above -named accused persons launched attack at
their house and made an attempt to kill/murder his brothers Muhammad Ayub and Muhammad Yousaf, hence he intervened in the matter, but the accused (respondent No.1)
Muhammad Ashraf made firimg upon him, due to which he received a bullet entrance and exit wound on the left side of his chest. After commission of crime, the accused persons flee away from the place of occurrence.
3. It transpire s from the record with regard to same incident, the accused Muhammad
Anwar has also lodged FIR No.65 of 7018, under Sections 337/ADF, 34, P.P.C. at the said police station on same date, in which the complainant Dr. Muhammad Arif along with his brothers wer e nominated, with the allegations that Dr. Muhammad Arif and other
nominated co- accused persons launched attack upon them by giving beatings to them and
their womenfolk and in the said incident the accused (respondent No.1) and one lady Mst. Saima sustained injuries.
4. Anyhow, in the case in hand initially the accused (respondent No.1) Muhammad
Ashraf surrendered before the learned trial Court for grant of pre -arrest bail, hence ad -
interim pre -arrest bail was granted to him, but subsequently the same was r ecalled, vide
order dated 4th May, 2018, thus he was arrested and after interrogation and submission of challan, the accused (respondent No.1) once again approached the trial Court for grant of post-arrest bail and after hearing arguments, the trial Court granted post -arrest bail to the
accused (respondent No.1), vide order dated 18th May 2018. Whereafter, the applicant (complainant) has filed the instant application for cancellation of bail granted to the accused (respondent No.1).
5. Learned counsel for a pplicant (complainant) contended that the accused
(respondent No.1) has specifically been nominated in the promptly lodged FIR with specific role of firing upon the applicant (complainant), thus there was no occasion to the learned trial Court to release t he accused (respondent No.1) on bail, when otherwise the
learned trial Court in its earlier bail rejection order has specifically mentioned that the offence so committed by the accused (respondent No.1) is heinous and non- bailable in
nature, thus under pec uliar circumstances of the case, the accused (respondent No.1) was
not entitled for grant of bail, but the learned trial Court in mis -exercise of its discretionary
powers has admitted the accused (respondent No.1) on bail, which is required to be reversed.
The learned counsel for applicant (complainant) further contended that while
delivering the impugned bail granting order, the learned trial Court has opined that the accused had no pre -intention to commit Qatl- i-Amd of victim, but the act had evolved at
the spur of moment and further held that the offence under Section 324 Q&D as yet to be determined, whereas case is covered under Section 337 -D, P.P.C.; the findings so made in
the impugned order is causing prejudice to the case of prosecution, thus such f indings are
also required to be expunged.
6. Learned Additional Prosecutor General did not support the bail cancellation
application on the ground that the counter cases have been lodged by both the parties
against each other and the persons from both the sides were injured thus after recording evidence in both the cases the trial Court would be able to determine that which party was the aggressor and who were the victims, thus rightly bail was granted in the matter. However, the learned Additional P.G. has also contended that the above referred findings
of trial Court will cause prejudice to the case of prosecution, thus prayed that the same be expunged.
7. Learned counsel for accused (respondent No.1), while supporting the impugned
bail granting order cont ended that since the case was falling within the ambit of further
inquiry thus the trial Court in just and true exercise of discretionary powers enlarged the
accused (respondent No. 1) on bail; that the rules governing the application for grant of
bail are altogether different from the application seeking cancellation of bail and once
bail is granted to an accused by the Court of competent jurisdiction, it can only be
cancelled or reversed, if the prosecution succeeds to establish on record that the accused
after grant of bail has misused the concession of bail by not appearing in the trial Court, or he is extending threats to the prosecution witnesses or he is tampering with the prosecution evidence or due to release of the accused the lives and liberty of the PWs are at stake. Admittedly, all the ingredients requiring for cancellation of bail, are lacking in the matter, thus prayed for rejection of application.
8. Heard the learned counsel for the parties and perused the available record. Perusal
of record reflects that with regard to same incident, both the parties have lodged FIRs against each other and admittedly injuries were received by the persons from both the sides, thus the learned trial Court has rightly held that it is a case of further inquiry, because it was a pre- mature stage to hold responsible to any of the party as assailant or to
the other as defender, hence in my view the trial Court has rightly granted bail to the accused (respondent No.1). It has further been observed that at bail stage only, the tentative assessment of the record is to be considered and deeper appreciation of evidence is not permissible whereas after grant of bail by a Court of competent jurisdiction, very strong grounds are required for its cancellation. In dealing with the case of bail
cancellation, the Court has to see whether the accused after release on bail is misusing the concession of bail or creating hindrance for the complainant party or due to the release of the accused the lives of the prosecution witnesses are at risk and that the accused is
tampering with the prosecution evidence in any manner. Record reflects that all the ingredients are lacking in favour of the applicant (complainant). Even there is no complaint that after release on bail, the accused (respo ndent) is reluctant to appear before
the learned trial Court. Reliance in such behalf is placed on the case reported as Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66, wherein it has been held that: "This is settled rule that if the Court while gran ting bail has not violated the principles
laid down for grant of bail, the cancellation is not proper." As discussed above, once the bail is granted for its cancellation there must be strong and exceptional grounds/reasons connecting the accused with the c ommission of alleged non -bailable offence. Reliance is
placed on the case reported as Ehtesab Bureau, Azad Jammu and Kashmir v. Muhammad Hanif Shaikh and another PCr.LJ 2004 SC (AJ&K) 996 wherein it has been observed: --
" It is a settled principle of law relating to bail matters that once an accused person
is granted bail by a Court of competent jurisdiction, it requires a very strong
evidence connecting the accused with the commission of alleged non -bailable
offence for cancelling his bail."
9. As discussed above, the Court while dealing with the application for bail has to
form its opinion tentatively on the basis of available record and ought to have used the wordings with great care and caution keeping into consideration that such wordings or findings m ay not prejudice the case of either party. However, the findings so made in the
case, in my view, would prejudice to the case of prosecution as the trial Court at pre -
mature stage has formed an opinion that the case would cover under Section 337- D,
P.P.C. instead of Section 324, P.P.C., hence in the interest of justice, the findings of the
trial Court to such extent are hereby expunged.
For the reasons discussed hereinabove, the application for cancellation of bail is
rejected.
The observations made hereinabove are tentative in nature and shall not influence
the merits of the case at the trial.
MQ/71/Bal. Application dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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