' SHAHID HAMEED DAR, J.---Through this petition Muhammad Ilyas petitioner, a relative of the deceased persons of this case has sought cancellation of post-arrest bail allowed to respondent No,1 by the learned Additional Sessions Judge, Gujranwala through order dated 10-5-2011.
2. Precisely the prosecution case as stated by the complainant is that he along with others was sitting in front of their haveli when they were attacked by 12 armed men, including the respondent- accused; on the joint lalkara of Muhammad Bashir and Muhammad Nazir (respondent No,1), all the accused made reckless firing at the place of occurrence resulting into the instant death of Muhammad Aslam, Muhammad Haleem, Muhammad Ramzan, Muhammad Boota and Muhammad Sharif whereas Abdullah, Muhammad Saleem and Muhammad Ibrahim were badly wounded; Abdullah succumbed to the injuries lateron; the accused fled the scene of occurrence after committing the crime; the motive behind the occurrence pertained to a previous criminal case in respect of murder of Bawa Allah Ditta.
3. Learned counsel for the petitioner submits that the respondent-accused had been admitted to post-arrest bail on whimsical grounds which are not borne out from the record; the respondent- accused is vicariously liable for the occurrence as a whole as he was an active participant of the crime, having fired jointly on the complainant party being armed with a rifle; the Investigating Officer collected 135 crime empties from the place of occurrence; five of the co-accused of the respondent-accused still absconder; the life of the prosecution witnesses had been made miserable by the respondent-accused and his cronies, as they extended them threats of murder etc., so as to restrain them from deposing against the accused party; a criminal case has been registered against respondent No,1 under section 506, P.P.C.; lastly submits that the accused mentioned in the F.I.R. Including the respondent-accused have committed a gruesome crime so he was not entitled for grant of bail and that the impugned order has caused serious prejudice to the petitioner.
4. On the other hand, learned counsel for the respondent-accused submits that the petitioner being father of his co-accused has been falsely involved in this case with mala fide intention; the accused was more than 60 years of age and with a fragile frame, he could not commit the occurrence, alleged against him; the accused-respondent underwent physical remand for 14 days but nothing was recovered at his instance; after extensive investigations it was opined by the Investigating Officer that Nazir accused had not taken part in the incident nor he was present at the spot at the relevant time; the trial Court has taken cognizance of the matter and after supply of the copies under section 265-C, Cr.P.C. To the accused, has fixed next date for framing of charge, on 5-7-2011; in view of likelihood of commencement of trial, the instant petition may not be allowed.
5. Learned Deputy Prosecutor-General Punjab endorses the submissions of learned counsel for the respondent accused by adding that the impugned order is sustainable by all means.
6. The details of the occurrence are heart rendering as six persons A were murdered and two wounded during the occurrence, allegedly committed by 12 accused including the respondent accused, being armed with Kalashnikovs and rifles. The courts however, are not driven by sentiments. It is the data/evidence collected by the Investigating Officer during the course of investigation, which matters, while adjudicating upon the bail plea of an accused. A joint role of firing has been ascribed to all the accused. Muhammad Nazir. Respondent No, 1 was arrested on 6- 3-2011, about 8 months after the registration of the F.I.R. And admitted to bail by the learned trial Court on 10-5-2011. The plea of alibi raised by the respondent accused during investigation was verified by the Investigating Officer with the opinion that accused Muhammad Nazir though not participated in the occurrence, had however abetted his co-accused to commit the occurrence. It has been strongly contended by learned counsel for the petitioner that the respondent accused had actively participated in the occurrence and overwhelming connecting evidence was available against him still he has been admitted to post arrest bail by the learned trial Court through the impugned order which is neither well-reasoned nor confidence-inspiring. I have gone through the bail granting order in question which may not be an ideal order but the fact remains that the learned trial Court after having delivered the copies to the accused under section 265-C, Cr.P.C.
Has set the stage for indictment of the accused on 5-7-2011. The commencement of trial or likelihood of commencement of trial in near future is a circumstance which has always been given importance by the courts in terms that it is not worth the occasion to pass an order for cancellation or recalling a bail granting order. Reliance in this regard is placed on "Mst. Irshad Begun v.
Muhammad Afzal and another" (1985 SCM R 1691) and "A kmal Masih and others v. Salanzat Masih and 4 others" (1988 SCNIR 918).
7. It bas been vehemently contended by learned counsel for the petitioner that the respondent accused after having been set at liberty had been misusing the concession of bail as he along with his co-accused had repeatedly intimidated the complainant and other prosecution witnesses so as to refrain them from adducing evidence against the accused. He has tendered copy of F.I.R. No, 644 of 2011, dated 3-6-2011 under section 506, P.P.C. Registered at Police Station Civil Lines, Gujranwala to substantiate his argument. Learned counsel for the respondent accused has counter argued that the respondent accused had been declared innocent by the Investigating Officer in the said criminal case, in reply to which, learned counsel for the petitioner submits that the accused had sought pre-arrest bail in the said case and joined investigation but it had not been finalized by the Investigating Officer as yet. One thing itches the mind as to whether a person on the wrong side of 60s and with frail structure, like the respondent accused possesses, could do all, that had been alleged against him. There is a tendency to involve innocent persons with the guilty. Once an innocent person is falsely involved in a serious case he has to remain in jail for considerable time. When a person is detained in jail, all. His dependents also suffer hardships. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified imprisonment at any stage in the case albeit, his acquittal in the long run.
The bail ought not to be withheld nor cancelled as punishment. The respondent accused after having been arrested on 6-3-2011 underwent physical remand for complete 14 days but this time period remained barren. The considerations for cancellation of bail are altogether different from the one, meant for' grant/refusal of bail under section 497, Cr.P.C. The commencement of trial and conclusion thereof may reprieve the anxiety of the' petitioner in the long run but the situation as it persists now, does not require that the facility of bail granted to the respondent accused may be recalled only for the satisfaction of whimsical grudge of the complainant.
8. Therefore, I am not inclined to accept this application, which is dismissed accordingly.