Raja Saeed Akram Khan, J.--This appeal has been filed against the judgment and order passed by the Shariat Court on 6.7.2010, whereby the revision petition filed by accused-respondent was accepted and he was granted the concession of bail.
2. The brief fafts of the case are that a case under Sections 324, 337 and 34 A.P.C. was registered at Police Station City Mirpur on the complaint of Waqar Aslam. It was reported that he was attending his uncle Noor Muhammad who was admitted in Riaz Hospital. On 29.4.2010 at. 7.10 p.m. he was sitting in Lajpal Hotel at Bus Stand where Zargham Shah son of Azrar Haider Shah, resident of Sadaat Colony, Javaid alias Fauji son of Adalat, caste Jat, resident of Jada, Ali Shan alias Shana son of Manzoor, caste Jat, resident of Mohra Dolo and an unknown boy were found armed with fire- arms. Zargham Shah and Javaid alias Fauji started firing with .30-bore pistols. Zargham Shah fired at the complainant which hit his right leg while Javaid fired at him which hit his left leg. Ali Shan inflicted a blow on the head of the complainant with the 'butt' of his pistol while unknown boy inflicted a fist blow on his nose. The occurrence was stated to be witnessed by Tanweer Razaq son of Muhammad Razzaq, Umair Shah son of Abdul Sattar Shah.
3. Mr. Khalid Yousaf, the learned counsel for the complainant-appellant, submitted that the Shariat Court has not exercised its discretion in a judicious manner and erred while overlooking the material available on the record. The accused-respondent was duly nominated in the F.I.R. which was promptly lodged. The version of the prosecution was fully supported by the prosecution witnesses who are eye-witnesses of the occurrence and the same was further corroborated by the medical evidence. The accused-respondent was armed with firearm weapon which was duly recovered during the investigation. The Shariat Court while granting bail to the accused observed that the injury was not sustained on the vital part of the body which is not correct, Even death can be caused by the injury sustained on non-vital part of the body. It was a pre-meditated occurrence hi which the respondent along with co-accused has actively participated. In this case Section 324, A.P.C., is very much attracted which falls under the prohibitory clause of Section 497, Cr.P.C.
4. Raja Ghazanfar Ali, the learned Advocate-General, supported the arguments advanced by the learned counsel for the complainant-appellant.
5. On the other hand Ch. Yasir Mehmood, the learned counsel for accused-respondent, submitted that the Shariat Court has rightly exercised its discretion while extending the concession of bail to the accused-respondent. He contended that according to medical report the injuries caused by the accused-respondent have been declared as `Jurh Ghair Jaifah hashimah', the punishment of which is provided as five years' imprisonment which does not fall under the prohibitory clause of , Section 497, Cr.P.C. In such a case, the grant of bail is a rule and refusal is exception.
6. We have heard the arguments at some length and perused the record. The accused-respondent was nominated in the F.I.R. However, he has been attributed a single pistol shot which hit the complainant-appellant at his right leg which is non-vital part of the body. It also reveals from the record that the allegation of firing against the co-accused was not found correct which makes the case one of further inquiry. The medical report reveals that the injury is `Jurh Ghair Jaifah hashimah' which is not punishable with death or transportation for life but the punishment provided for such an injury is five years imprisonment, therefore, the case does not fall under the prohibitory clause of Section 497, Cr.P.C. In such like cases the principles laid down by the apex Court of Pakistan in a case reported as Tariq Bashir and 5 others v. The State [PLD 1995 SC 34] is applicable wherein it has been held as under:-- "It is crystal clear that in bailable offences the grant, of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i,e, (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example-- (a)where there is likelihood of abscondence of the accused; (b)where there is apprehension of the accused tampering with the prosecution evidence; (c)where there is danger of the offence being repeated if the accused is released on bail; and (d)where the accused is a previous convict."
7. Deeper appreciation of evidence at bail stage is not warranted and only a bird eye-view has to be taken. In this regard the law laid down by this Court in a case reported as Abdul Khaliq v. State and another [2010 SCR 402] wherein it was held by this Court as under: "....At the bail stage a bird eye-view of the evidence has to be taken. Deeper appreciation of evidence is not permissible at bail stage, however, a bail order cannot be passed in vacuum.
Whatever material is available on record, the Court has to scrutinize the same and form tentative opinion on its basis."
In another case reported as Raja Muhammad Irshad v. Muhammad Bashir Goraya and others [2006 SCM R 1292]. it has been observed as under:-- ".....It is a settled principle of law that while considering the request of the accused or his release on bail, a deep appreciation of evidence is not called for and the Court seized with the matter in terms of Section 497(1). Cr.P.C. is required to make tentative assessment of evidence available on record."
8. It is now settled that if the Court while granting bail has not violated the principles laid down for grant of bail, its cancellation is not proper. In this regard reliance is placed on a case reported as Suba Khan v. Muhammad Ajmal and 2 others [2006 SCM R 66], wherein it has been observed as under:-- "6. This is settled rule that if the Court while granting bail has not violated the principles laid down for grant of bail, the cancellation is not proper. The mere fact that there could be another opinion of the matter to that of the opinion formed by the Court on the basis of tentative assessment of the evidence, would not be a sufficient ground to cancel the bail if in the light of the facts of the case, it can be found to have qualified the test of calling further inquiry into the guilt or innocence of an accused in terms of sub-section (2) of Section 497, Cr.P.C. This Court in a number of cases interpreted the provisions of Section 497(2), Cr.P.C. and held that main consideration for grant of bail under sub-section (2) of Section 497, Cr.P.C. is that if the Court on the basis of tentative assessm ent of evidence, forms an opinion that prima facie, there were reasonable grounds to believe that accused has not committed an offence with which he was being charged, he would be allowed bail by virtue of subsection (2) of Section 497, Cr.P.C. as of right."
9. Even otherwise, once the bail has been granted, for its cancellation there must be strong and exceptional grounds/reasons. Reliance is placed on the case reported as Ehtesab Bureau, Mad Jammu & Kashmir v. Muhammad Hanif Shaikh and another [2003 SCR 427], 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."
10.It is yet to be determined whether the case of the accused-respondent falls under the purview of Section 324, A.P.C. or not is to be decided at the time of trial by the trial Court which has not yet commenced. The investigation of the case is already complete and the accused-respondent is no more required for further investigation. At this stage the cancellation of bail will not serve any useful purpose.
The upshot of the above discussion is that we do not find any illegality or irregularity in the order passed by the Shariat Court while extending the concession of bail. Resultantly, this appeal is dismissed. However, the appellant shall be at liberty to file fresh application if he succeeds to collect any fresh material.