Muhammad Nawaz son of Rozi Khan, resident of Daulat Khel, Tehsil and District Lakki Marwat, petitioner, has filed this bail cancellation application, against Baitullah son of Mir Alain, Respondent No, 1, for cancellation of bail allowed to accused-respondent, in case FIR No, 98 dated 6.3.2007, registered under Section 324 PPC in Police Station, Lakki, Tehsil and District Lakki Marwat.
2. Briefly stated the facts of the case are that on 6.3.2007 at 0840 hours Muhammad Nawaz complainant in injured condition lodged a report at Adda Machan Khel, to the effect that he along- with Shafiullah, Allandad and Ghazi Khan were going to attend the date of hearing in the Court of Additional Sessions Judge-II, Lakki Marwat and they were coming from their village through a Datsun Pick up from Adda Machan Khel. In the same Datsun, Baitullah son of Mir Alain, Respondent No, 1, was also sitting on the front seat. The complainant and his companions were sitting on the rear seats of the Datsun Pick up. When at about 0830 hours the Datsun stopped in adda Machan Khel and they deboarded from the Datsun, accused respondent Baitullah also deboarded from the front seat and suddenly he took out a 30 bore pistol from his trousers and started firing at the complainant, with which he was hit on the right thigh. The persons present there tried to separate them and the accused 'after the occurrence decamped from the spot.
3. Motive for the occurrence was stated to be a house dispute between the parties. The occurrence was seen by Shafiullah, Allandad and other persons present on the spot, and thus, he charged the respondent for commission of the offence. This report was reduced into a `murasila' by Amir Khan, ASI, which was incorporated into FIR No, 9 dated 6.32007 at Police Station, Lakki Marwat.
4. After the arrest of accused-Respondent No, 1, he moved, an application for his post-arrest bail to Miss Ambareen Naveed, Judicial Magistrate, who after hearing the learned counsels for the parties and perusing the record, rejected the application of the accused-respondent, vide order dated 27.3.2007. After that the accused-respondent moved an application for the grant of post-arrest bail to Sessions Judge, Lakki Marwat and the learned Court after perusing the record and scanning the available data, extended the concession of bail to the accused-respondent vide order dated 24.4.2007 and now the petitioner has moved the, present bail cancellation application.
5. Mr. Allandad Khan, brother-in-law of the petitioner was present and he submitted written arguments, placed on file. Similarly Baitullah respondent was also present in person and he also submitted detailed written arguments, placed on file, which were duly perused.
6. It was submitted by Allah Dad Khan on behalf of the petitioner that the accused has been directly charged in the FIR and the recovery has been effected from his possession. There was ocular evidence as well as circumstantial evidence against the accused-respondent and that the learned Sessions Judge has fallen into an error in extending the concession of bail to accused- Respondent No, 1.
7. On the other hand, the respondent in his detailed written arguments submitted that there is no disinterested evidence against the accused respondent and that the learned Sessions Judge has fallen, into an error in extending the concession of bail to accused-Respondent No, 1.
8. On the other hand, the respondent in his detailed written arguments submitted that there is no disinterested evidence against him and the responded has been falsely charged, thus, the learned Sessions Judge has rightly extended the concession of bail to him. It was also argued that there are no chances of the absconsion of the accused-respondent and it has not been established on the record by the petitioner that the respondent has misused the concession of bail. It was also submitted that the investigations in this case is complete and the learned Deputy Advocate General adopted the arguments of the petitioner.
9. I have given may anxious consideration to the facts and circumstances of the case and perused the record carefully.
10. Without commenting upon the merits of the case so that it may not prejudice the case of either party, it is held that the learned Sessions Judge has taken into consideration the fact that the injury on the person of the petitioner was simple in nature and there were two contradictory versions of the occurrence as stated by Falak Naz son of Amanullah, Rehmatullah Khan son of Mir Alam and Rafiullah son of Haq Dad in the three affidavits submitted by them to the Court in which a different version of the occurrence has been given, which made the case of the accused-respondent one of further inquiry.
11. Once the concession of bail is extended to the accused involved in a criminal case, strong and exceptional ground has to be made out for cancellation of the bail because the consideration for the grant of bail and those for the cancellation of bail are different. Section 497 sub-section (5)
Cr.P.C. does not command the Court to cancel. the bail even if the offence is punishable with death, transportation or imprisonment for ten years as held in the case of Muzaffar Iqbal vs. Muhammad Imran Aziz and others (2004 SCM R 231) and in the case of Tariq Bashir and 3 others vs. The State (PLD 1995 SC 34).
In view of the facts and circumstances of the case narrated above, there is no force in this bail cancellation application which is dismissed.