ABDULLAH BALOCH, J. --- This order disposes of instant application for bail cancellation filed by the applicant (complainant) Muhammad Arif against the accused (respondent No. 1) Muhammad Ashraf, who was granted bail in the F.I.R. No. 66 of 2018, dated 3 April, 2018 of Police Station Gwalmandi, Quetta, under Sections 324, 34, P.P.C. by the learned Additional Sessions Judge-VII, Quetta, vide order dated 18th May , 2018.
2. Facts of the case are that on 3rd April, 2018, the applicant (complainant) Dr. Muhammad Arif lodged the above F.I.R. against accused Muhammad Anwar , Muhammad Ashraf (applicant), Muhammad Akbar and Usama, with the averments that he alongwith his family members are residing at Haji Ghaibi Road, Quetta and, by profession he is a doctor . On the day of occurrence, he alongwith his house inmates were sleepin g in their house, when at about 12.05 a.m. the above-named accused persons launched attack at their house and made an attempt to kill/murder his brothers Muhammad Ayub and Muhammad Yousaf, hence he intervened in the matter , but the accused (respondent No. 1) Muhammad Ashraf made firing upon him, due to which he received a bullet entrance and exit wound on the left side of his chest. After commission of crime, the accused persons flee away from the place of occurrence.
3. It transpires from the record with regard to same incident, the accused Muhammad Anwar has also lodged F.I.R.
No. 65 of 2018, under Section 337/ADF , 34, P.P.C. at the said police station on same date, in which the complainant Dr. Muhammad Arif alongwith his brothers were nominated, with the allegations that Dr. Muhammad Arif and other nominated co-accused persons launched attack upon them by. giving beatings to them and their womenfolk and in the said incident the accused (respondent No. 1) and one lady Mst. Saima sustained injuries.
4. Anyhow , in the case in hand initially the accused (respondent No. 1) Muhammad Ashraf surrendered before the earned Trial Court for grant of pre-arrest bail, hence ad-interim pre-arrest bail was granted to him, but subsequently the same was recalled, vide Order dated 4th May, 2018-, thus he was arrested and after interrogation andrd submission of challan, the accused (resp ondent No. 1) once again approached the Trial Court for grant of post- arrest bail and after hearing arguments, the Trial Court granted post-arrest bail to the accused (respondent No. 1), vide order dated 18th May, 2018. Whereafter , the applicant (complainant) has filed the instant application for cancellation of bail granted to the accused (respondent No. 1).
5. Learned counsel for applicant (compl ainant) contended that the accused (respondent No. 1) has specifically been nominated in the promptly lodged F.I.R. with specific role of firing upon the applicant (complainant), thus there was no occasion to the learned Trial Court to release the accused (respondent No. 1) on bail, when otherwise the learned Trial Court in its earlier bail rejection order has specifically mentioned that the offence so committed by the accused (respondent No. 1) is heinous and non-bail able in nature, thus under peculiar circumstances of the case, the accused (respondent No. 1) was not entitled for grant of bail, but the learned Trial Court in mis-exercise of its discretionary powers has admitted the accused (respondent No. 1) on bail, which is required to be reversed.
The learned counsel for applicant (complainant) further contended that while delivering the impugned bail granting order , the learned Trial Court has opined that the accused had no pre-intention to commit Qatl-i-Amd of victim, but the act had evolved at the spur of moment and further held that the offence unde r Section 324 Q&D is yet to be determined, whereas case is covered under Section 337-D, P.P.C.; the findings so made in the impugned order is causing prejudice to the case of prosecution, thus such findings are also required to be expunged:
6. Learned Additional Prosecutor General did not support the bail cancellation application on the ground that the counter-cases have been lodged by both the parties against each other and the persons from both the sides were injured, thus after recording evidence in both the cases Trial Court would be able to determine that which party was the aggressor and who were the victims, thus rightly bail was granted in the matter . However , the learned Additional P.G. has also contended that the above-referred findings of Trial Court will cause prejudice to the case of prosecution, thus prayed that the same be expunged.
7. Learned counsel for accused (respondent No. 1), while supporting the impugned bail granting order contended that since the case was falling within the ambit of further inquiry , thus the Trial Court in just and true exercise of discretionary powers enlarged the accused (respondent No. 1) on bail; that the rules governing the application for grant of bail are altogether different from the application seeking cancellation of bail and once bail is granted to an accused by the Court of competent jurisdiction, it can only, be cancelled or reversed, if, the prosecution succeeds to establish on record that the accused after grant of bail has misused the concession of bail by not appearing in the Trial Court, or he is extending threats to the prosecution witnesses or he is tampering with the prosecution evidence or due to release of the accused the lives and liberty of the PWs are at stake. Admittedly , all the ingredients requiring for cancellation of bail, are lacking in the matter , thus prayed for rejection of application.
8. Heard the learned counsel for the parties and perused the available record. Perusal of record reflects that with regard to same incident, both the parties have lodged F.I.Rs. against each other and admittedly injuries were received by the persons from both the sides, thus the learned Trial Court has rightl y 'held that it is a case of further Inquiry , because it was a pre-mature stage to hold responsible to any of the party as assailant or to the other as defender , hence in my view the Trial Cour t has rightly granted bail to the accused (respondent No. 1). It has further been, observed that at bail stage only, the tentative assessment , of the record is to be considered and deeper appreciation of evidence is not permissib le, whereas after grant of bail by a Court of competent jurisdiction, very strong grounds. are required for its cancellation. In dealing-with the case of bail cancellation, the Court has to see whether the accused after release on bail is misusing the concession of bail or creating hindrance for the complainant party or due to the release of the accused the lives of the prosecutio n witnesses are at risk and that the accused is tampering with the prosecution evidence in any manner . Record reflects that all the ingredients are lacking in favour' of the applicant (complainant). Even there is no complaint that after release on bail, the accused (respondent) is reluctant to appear before the learned Trial Court. Reliance in such behalf is placed on the case reported as Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66, wherein it has been held that: -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 ." As discussed above, once the bail is granted, for its cancellation there must be strong and exceptional grounds/reasons connecting the accused with the commission of alleged non-bailable offence.
Reliance is placed on the case reported as Ehtesab Bureau, Azad Jammu and Kashmir v.. Muhammad Hanif Shaikh and another 2004 P .Cr.L.J. S.C. (AJ&K) 996 wherein it has been observed:--- ... ... It is a settled principle of law relating to bail matters that once an accused person is wanted 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."
9. As discussed above, the Court while dealing with the application for bail has to form its opinion tentatively on the basis of available record and ought to have use the wordings with great care and caution keeping into consideration that such wordings or findings may not prejudice the case of either party . However , the findings so made in the case, in my view, would prejudice to the case of prosecution as the Trial Court at pre-mature stage has formed an opinion that the case 'would cover under Section 337-D, P.P.C. instead of Section 324, P.P.C., hence in the interest of justice, the findings of the Trial Court to such extent arc hereby expunged.
For the reasons discussed hereinabove, the application for cancellation of bait is rejected.
The observations made hereinabove are tentative in nature and shall not influence the merits of the case at the trial.