Through this application under Section 497(5) Cr.P.C. the petitioner seeks cancellation of bail of Respondents Nos, 1 & 2 in case FIR No, 39/2003, dated 27.3.2003 registered under Sections 337- A(ii)/337-F(v)/337-A(i)/34 PPC at ,Police Station Sadar, Mailsi, District, Vehari granted by learned Addl: Sessions Judge, Mailsi, vide order dated 14.5.2003.
2. Brief allegation in the FIR against Respondents Nos, 1 & 2 is that they were armed with sota and hatchet, respectively. Muhammad Akram gave a hatchet blow on the head while Muhammad Aslam gave a Sota blow to Ghulam Mustafa hitting on the little finger of right hand.
3. Learned counsel for the petitioner contends that bail before arrest has been granted by the learned Addl: Sessions Judge on surmises and conjectures and it was not a fit case for the grant of bail before arrest as no mala fide or ulterior motive was shown against the complainant for falsely implicating the respondents in the present case. It is further contended that the recovery was yet to be effected and pre-arrest bail has been allowed. It is further contended that bail before arrest is only granted in cases where the mala fides of the complainant or police are made out as has been held by the august Supreme Court of Pakistan in 1994 SCMR 1277. It is further contended that mere previous non-conviction or minor age of the accused are no grounds for grant of bail before arrest.
It is also contended that mere submission of challan is also no ground for dismissing to application of cancellation of pre-arrest bail.
4. On the other hand, learned counsel for the Respondents Nos, 1 & 2 opposes this application on the ground that the petitioner wanted to grab the property of the respondents by involving them in false cases. It is further contended that an application was moved by the mother of the respondents against the complainant. It is further contended that another case FIR No, 199 of 2003 was registered on the statement of a person, which was actually on behalf of the petitioner and that case was found false and discharge report was prepared as during the investigation conducted by the local police it was found that the involvement of Muhammad Aslam and Muhammad Akram in the present case was doubtful. The DPO, Vehari entrusted the investigation to the SHO and he also found that Muhammad Akram had given the injury with a belt and had not used the hatchet while Muhammad Aslam was not armed with any weapon.
5. I have heard the learned counsel for the parties and also perused the record. Admittedly Respondents Nos, 1 & 2 were named in the FR with a specific role but during the investigation the police came to the conclusion that Muhammad Aslam had not caused any injury with any weapon on the person of Ghulam Mustafa as stated by the complainant while Muhammad Akram was found guilty whereas the other accused had not caused any injury, according to the police investigation, to any injured PW or the complainant. The police also prepared a discharge report of Muhammad Aslam on 19.7.2003 on the basis of result of investigation. In such circumstances, I do not find any merit in the application to the extent of cancellation of bail of Muhammad Aslam as though police opinion is not binding on the Courts yet the same can be considered at bail stage.
6. As far as Muhammad Akram Respondent No, 2 is concerned, he is named in the FIR with specific role of causing injury with hatchet at the head which is vital part of the body. He was also found guilty during the investigation. There does not appear any reason false implication of the said respondent. Bail before arrest is only meant to protect innocent citizens, if they are found to be involved in a case with mala fide intention or ulterior motive. Even otherwise, the recovery was yet to be effected from him. It was not a fit case for the grant of pre-arrest bail to Muhammad Akram and discretion was not properly exercised by the learned Addl: Sessions Judge.
7. For the foregoing reasons, this application to the extent of Muhammad Aslam Respondent No, 1 is dismissed but as regards Muhammad Akram Respondent No, 2 it is accepted and pre-arrest bail granted to him by learned Addl: Sessions Judge, Mailsi vide order dated 14.5.2003 is cancelled. He shall be taken into custody. However, the learned lower Courts can consider the arguments at the time of bail after arrest, which application of the petitioner will be decided 'on its own merits without being influenced by the orders of this Court as criteria for grant of bail before arrest and bail after arrest in entirely different.