' ATTAULLAH KHAN, J.--Raqibaz Khan complainant has moved this application for the cancellation of bail granted to the accused/respondents Nos.1 to 9 by the learned Additional Sessions Judge-III Bannu vide order dated 25-11-2009.
2. Brief facts of the case are that the complainant Raqibaz Khan lodged report in injured condition in the emergency room of Civil Hospital Bannu to the effect that on the fateful day he had gone to Sher Masti Kakki for settlement of account with Arif Khan. On return when they reached near the shop of Ikramullah situated in Sher Mast Kakki wherefrom Arif Khan was to leave, in the meanwhile, Muhammad Ali Khan, Ayub Khan, Ajmal, Abdul Ghaffar, Saifullah, Muhammad Zaman, Sher Zaman, Mir Zali, Asif Khan and Imtiaz, residents of Reham Kakki, armed with Kalashnikovs came there at about 1100 hours and all of them fired at him with which he was hit on both legs while Arif Khan luckily escaped unhurt and thus he charged all of them for the offence vide F.I.R. Ibid.
3. Initially the accused/respondents were granted pre-arrest bail by the learned Additional Sessions Judge-V Bannu vide order dated 3-3-2009 which was recalled by this Court by order dated 2-11-2009 whereafter they have been admitted to post-arrest bail vide order dated impugned in this petition.
4. Learned counsel for the complainant/petitioner does not press this application qua the respondents Nos. 2 to 9 and he has confined arguments only to the extent of respondent No,1 Abdul Ghaffar.
5. According to the learned counsel for the petitioner, the presence and participation of the respondent Abdul Ghaffar is duly proved on the spot at the time of occurrence by making cross- report. Furthermore, the occurrence is fully corroborated by the medical evidence and other circumstantial testimony. He urged that in view of the principle laid down in PLD 1986 Supreme Court 173, the Court below was having no jurisdiction for the grant of bail to the respondent because his earlier similar application was entertained by some other Court.
6. On the other hand, learned counsel for the respondent is of the view that in F.I.R. No specific role has been attributed to anyone of the accused/respondents specially respondent No, 1 . He submitted that the injury allegedly sustained by the victim is on the non-vital part of his body.
7. I would first discuss the last argument of the learned counsel for the petitioner regarding the applicability of principles laid down in PLD 1986 Supreme Court 173 Supra.
8. I have perused the record. The contention is true that similar application of the respondent was earlier entertained by Additional Sessions Judge-III Bannu, while the impugned order is passed by some other Court which is violation of the principles laid down by the Apex Court. Now the Additional Sessions Judge concerned who had entertained the earlier application has been transferred and no more available there, therefore, the dispute is over. The learned counsel also did not stress this argument keeping in view the latest position. Anyhow, I would like to observe that the lower Courts must comply with the dictum laid in PLD 1986 Supreme Court 173 and in case of failure, it may expose them to disciplinary action. A copy of this judgment be sent to the learned Sessions Judge Bannu for circulation amongst the Judicial Officers working in that sessions Division for strict compliance and guidance.
9. Now coming to the other aspect of the case. It is to be noted that the principles laid down by the Superior Courts are by now have become settled law. According to the dictum of the Apex Court, the grounds for grant of bail are totally different from the principles for cancellation of bail already granted to an accused. The only point required to be considered in the instant cancellation petition is that the bail A is mis-used or the evidence is tampered with by the accused. Strong and exceptional grounds are to be proved for cancellation. The honourable Supreme Court of Pakistan in the case of Muzaffar Iqbal v. Muhammad Imran Aziz etc.; reported in 2004 SCM R 231 has held as under:-- "It is well-settled by now that "considerations for the cancellation of bail are different from the considerations for the grant of bail. Section 497(1), Cr.P.C. Prohibits the grant of bail for offences punishable with death or imprisonment of ten years or over. Section 497(5), Cr.P.C. Does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under section 497(1), Cr . P .c . The discretion is left with the Court under section 497(5), Cr.P.C. Which is pari materia with the principles which apply to the setting aside of the orders of acquittal". (Mian Dad v. The State 1992 SCMR 1289) In view of what has been mentioned hereinabove, it is not a fit case for cancellation of bail as strong and exceptional grounds are needed to get it cancelled which are not available."
10. Similar principles have been laid down in 2009 SCM R 786. The observations of the Apex Court as follows.
"It needs no reiteration that the considerations for the grant of bail are quite distinct from the considerations for the cancellation of bail. Once bail has been granted by a competent Court of law, strong and exceptional grounds are required for cancelling the same as held by this Court on a number of occasions. It is to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice."
11. The same principles are adopted by the Apex Court in 2008 SCM R 1715, wherein it has been held that:-- "It needs no reiteration that for cancellation of bail, strong and exceptional grounds are required.
This Court ordinarily does not interfere with the order of the High Court relating to bail particularly in case of murder when the trial is to commence so as to avoid discussion and remarks on the merits of the case. It is to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice."
12. Keeping in view the above principles, Court has to see whether strong and exceptional grounds are available in the instant case for interference in the bail granting order in favour of the accused/respondents. I have come across no iliegality, or factual incorrectness in the impugned bail granting order and there is no material to prove that the grant of bail has resulted in miscarriage of justice. The grounds required for cancellation are not available.
13. As far merits of the case are concerned, I may point out that in the occurrence the complainant has sustained a single fire-arm injury which too is on his non-vital part of the body. In these circumstances, where nine persons are charged, the fact is not known as to with whose fire shot the injury was caused. It is a matter of common knowledge that in such like cases, net is thrown wide and even such innocent persons are implicated who had no hand in the commission of the crime and who could help the accused. The cause of sole injury is not ascertainable, therefore, the question as to whether the respondents have shared common intention to kill the complainant, would require further inquiry.
14. In short, learned counsel for the petitioner has not been able to convince the Court that earlier the accused/respondent has misused the concession of bail or tampered with the evidence. No strong and exceptional reasons are pointed out for justifying cancellation of bail. Even on merits, the bail granted to the accused/respondent through the impugned order is correct and resulted no miscarriage of justice because it is a case of further inquiry.
15. Keeping in view the above discussion, I am not inclined to cancel the bail granted to the accused/respondent.
16. Resultantly, I find no substance in this bail cancellation application, which is hereby dismissed.