ADNAN-UL-KARIM MEMON, J. These Criminal Miscellaneous Applications have been brought under section 497(5) Cr.P.C for the cancellation of bail granted to the private respondents by the learned Additional Sessions Judge-I, Mirpurkhas in Criminal Bail Applications Nos. 735 and 795/2024 vide commen order dated 12-07-2024 in Crime No. 27/2024 under sections 324, 403, 506(ii), 337-A(i), F(i), 147, 148, 149 P.P.C of P.S Sindhri, District Mirpurkhas. For convenience's sake, an excerpt of the order is reproduced as under:- "After hearing both sides, it transpires that per content of FIR the inimical terms between the parties is apparent and therefore, the possibility of deliberation, consultation, fabrication, and concoction on the part of the complainant cannot be ruled out as the FIR is admittedly lodged with the unexplained delay of about one day and therefore, the matter requires further inquiry. It also transpires that the ocular account mentioned in FIR is not consistent with the medical evidence as per the content of FIR lath blows were caused to the injured but per Provisional Medico Legal Certificate the kind of weapons used is sharp cutting and therefore matter requires further inquiry.
It also transpires that except sections 324, 337-A(ii) and 506(ii) P.P.C. all other sections are bailable in nature. It also transpires that keeping in view the minimum punishment of the offences, sections 324, 337-A(ii) and 506(ii) P.P.C. do not fall within the ambit of the prohibitory clause of section 497 Cr.P.C. So also the applicability of section 324 P.P.C. is yet to be determined by the trial court."
2. At this stage, I asked the learned counsel is to how these Criminal Miscellaneous Applications are maintainable before this Court as the principles governing the grant of bail and the cancellation of bail substantially stand on different footings. Besides, cancellation of bail is a harsh order because it interferes with the liberty of any individual.
3. On the point of maintainability of these criminal Miscellaneous Applications the learned counsel has argued that this Court can cancel pre-arrest bail granted by the trial court under Section 497(5) of the Cr.P.C., on the premise that Section 497(5) states that "Notwithstanding anything contained in subsections (1) and (2), any High Court may if it appears to it necessary to do so, cancel any order admitting an accused person to bail". This gives the High Court the power to review and cancel bail orders granted by lower courts. He added that while the High Court has the power to cancel bail, it would not do so lightly and this court has to consider various factors, including whether the bail order was patently illegal, erroneous, or factually incorrect, whether the accused has misused the bail by threatening witnesses or tampering with evidence, whether there are new grounds for apprehension that the accused may abscond or interfere with the investigation, whether the accused has violated any conditions imposed on their bail. He submitted that if this Court finds that any of these factors are present, it may exercise its discretion to cancel the bail. On merits, the learned counsel for the applicant/complainant has argued that the FIR is accurate and genuine, and the trial court's decision to grant bail to the respondents is incorrect. He added that the delay in filing the FIR is explained, and the respondents specific role in the crime is clearly stated. He next argued that the evidence, including witness statements and injury reports, supports the complainant's allegations. He further submitted that the respondent's actions do not warrant further investigation and fall under the prohibited category of Section 497(1) Cr.P.C. He emphasized that the respondents have committed a serious crime and should be held accountable. He argued that the respondents had harassed and threatened the complainant after being granted bail, making their life difficult. The trial judge did not consider the seriousness of the offense or the respondent's specific role in the crime. The respondent's bail should be cancelled to ensure justice. Learned counsel submitted that the order is perverse on the ground that the trial court erroneously held in the order that the ocular account mentioned in FIR is not consistent with the medical evidence as per the content of FIR lathi blows were caused to the injured but per Provisional Medico Legal Certificate the kind of weapons used is sharp cutting. Per learned counsel, the Medico-Legal Certificate explicitly shows that the injured received a sharp cutting wound at the hands of the private respondents which is inconsistent with the FIR which also shows that hatchet blow was inflicted upon the injured therefore, the matter does not require further inquiry. He added that punishment of the offenses, section 324, P.P.C. does fall within the ambit of the prohibitory clause of section 497 Cr.P.C.
4. Learned APG assisted by the learned counsel for the private respondents has raised the question of the maintainability of these Criminal Miscellaneous Applications. The learned counsel emphasized that the principles governing the grant and cancellation of bail are different, as they serve distinct purposes in the criminal justice system. He argued that the primary purpose of bail is to ensure that the accused person will appear for their trial. It is a temporary release from custody, conditional upon the accused's promise to return to court as required. The decision to grant bail is typically based on several factors. On merits, the counsel argued that the prosecution's case was fabricated, manipulated, false, frivolous, unbelievable, illogical, and baseless, suffering from numerous legal deficiencies. He asserted that all charges were baiiable except for sections 324, 337-A(ii) and 506(ii) of the Pakistan Penal Code (P.P.C.), and even those sections were misapplied in this case. He attributed the complainant's motive to a personal dispute with the applicants/accused, stemming from a matrimonial conflict. He emphasized that the incident never occurred and that one of the applicants/accused Muzafar, is a minor. He also highlighted inconsistencies between the eye-witness accounts and the medical evidence.
5. I have heard the learned counsel for the parties and perused the record with their assistance and case law cited at the bar.
6. The grounds for cancellation of bail are distinct from those for granting bail. While bail is typically granted to ensure an accused's presence in court during trial, its cancellation can occur under specific circumstances. The common grounds for cancellation of bail are misuse of Liberty. The accused may engage in criminal activities while on bail, undermining the purpose of the temporary release. Tampering with Evidence or Witnesses: The accused might attempt to influence the case by altering evidence or intimidating witnesses. Attempt to Flee. If the accused poses a flight risk, the court may revoke bail to prevent them from evading justice. Violation of Bail Conditions: Failure to adhere to the terms and conditions imposed by the court can be grounds for cancellation. Threatening Witnesses or Victims: If the accused threatens individuals involved in the case, it can jeopardize the integrity of the legal process. Obstructing justice, and engaging in activities that hinder the investigation or prosecution can lead to the revocation of bail.
7. The cancellation of bail is a serious matter, and it should only be done in exceptional circumstances. The prosecution must provide strong and substantive evidence to justify the cancellation of bail, and the court must exercise due care and circumspection in making such a decision. On the aforesaid proposition, I am also fortified by the dictums laid down by the Supreme Court reported in 2009 SCMR 786,2004 SCMR 1160, 2005 SCMR 1539, 1994 SCMR 1064 and 2004 SCMR 231 in which it was held that considerations for cancellation of bail are quite distinct from the considerations for grant of bail. Once bail has been granted by a competent court of law, strong and exceptional grounds are required for cancelling the same. It has to be seen as to whether an order granting bail is patently illegal, erroneous, factually incorrect, and has resulted in a miscarriage of justice. Section 497 (1) Cr.P.C. prohibits the grant of bail for offenses punishable with death or imprisonment of 10 years or over. Section 497 (5) Cr.P.C. does not command the court to cancel the bail even when the offense 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 in the court under Section 497 (5) Cr.P.C. which is pari meteria with the principles which apply to the setting aside of the orders of acquittal. On the aforesaid proposition, I am guided by the decision of the Supreme Court in the case of Ahtisham Ali v. The State [2023 SCMR 975].
8. As far as section 324 P.P.C. is concerned, in an attempt to murder case falling within the ambit of section 324, P.P.C., the nature of the act done, the intention of the offender, and the circumstances leading to the occurrence are the essential ingredients, which need to be probed into determine the guilt or otherwise of an accused. As such the subject offenses do not fall within the prohibitory clause of section 497 (1) Cr.P.C. However to ascertain the offense for an attempt to murder the victim and injuries sustained by him on the part of his body requires serious consideration as the private respondents are alleged to have inflicted serious injuries to the victim whether through lathi or sharp edged weapon as no firearm has been used, however, FIR and Medical evidence explicitly show such factum which has escaped from the sight of the learned trial court while deciding pre- arrest bail of the private respondents; and it is for the learned trial Court to thresh out the truth after recording the evidence being adduced by the prosecution and defense during trial.
9. To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a pang of guilt. Once an innocent is put under arrest, then he has to remain in jail for a considerable time. Normally it takes some years to conclude the trial. Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises about the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of the benefit of bail. In such a situation, it would be better to keep an accused person on bail than in jail, during the trial. Freedom of an individual is a precious right. Where the story of the prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into the guilt of the accused.
10. As far as Section 506 P.P.C. is concerned the same provides the punishment for criminal intimidation to the extent of two years, however, if the death threat is issued to any person, the punishment may extend to seven years and then it becomes a non-bailable offense. So far as 'criminal intimidation' is concerned, the same has been defined in Section 503 P.P.C. in the following words:- "503. Criminal Intimidation: Whoever threatens another with any injury to his person, reputation, or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to.do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation."
11. A bare perusal of the afore-quoted provision of law makes it clear that whenever an overt act is materialized and ended into an overt act, the provision of Section 506(ii) P.P.C. would not be applicable and the only provision that will remain in the field is the overt act, which is committed in consequence of criminal intimidation. On the aforesaid proposition, I am guided by the decision of the Supreme Court in the case of Rana Muhammad Imran Nasarullah v. The State 2022 SCMR 1946. However, in the present case, the complainant simply stated that the accused extended threats of dire consequences, and left after intimidation. However, the subject act did not materialize and ended in an overact on the part of the private respondents, except for allegedly causing injuries to the victims.
12. It has been noticed that after the promulgation of Criminal Law 2nd -Amendment Ordinance, 1990, the concept of simple or grievous injury has been changed and a new definition of hurt has been introduced in Section 332, P.P.C. in the following words: - "332. Hurt (1) Whoever causes pain, harm, disease, infirmity, or injury to any person or impairs, disables, or dismembers any organ of the body or part thereof any person without causing his death, is said to cause hurt.
(2) The following are the kinds of hurt:- a) Itlaf-i-udw, b) ltlaf-i-udw; c) Itlaf-i-salahiyyat-i-udw;
13. Section 333 P.P.C. defines the term Itlaf-i-udw-, meaning thereby, whoever dismembers, amputates, or severs any limb or organ of the body of another person is said to cause Itlaf-i-udw.
The punishment is provided in section 334 P.P.C. that whoever by doing any act to thereby cause hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person causes itlaf/udw of any person, shall, in consultation with the authorized medical officer, be punished with qisas, and if the qisas is not executable keeping in view the principles of equality under the Injunctions of Islam, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to ten years as ta'zir. Shajjah mentioned in Section 332(2)(c), P.P.C. has further been defined in Section 337, P.P.C. in the following words: "337 Shajjah (i) Whoever causes, on the head or face of any person, any hurt which does not amount to Itlaf-i-udw or Itlaf-i-salahiyyat-i-udw, is said to cause Shajjah.
(2) The following are the kinds of Shajjah, namely: - a) Shajjah-i-Khafifah; b) Shajjah-i-mudihah c) Shajjah-i-hashimah; d) Shajjah-i-munaqillah; e) Shajjah-i-ammah; and f) Shajjah-i-damighah
(3) Whoever causes Shajjah?
(i) without exposing bone of the victim, is said to cause Shajjah-i-khafifah;
(ii) by exposing any bone of the victim without dislocating it, is said to cause Shajjah-i-mudihah;
(iii) by fracturing the bone of the victim and without dislocating it, is said to cause Shajjah-i- hashimah;
(iv) by causing fracture of the bone of the victim and thereby the bone is dislocated, is said to cause Shajjah-i-munaqillah;
(v) by causing fracture of the skull of the victim so that the wound touches the membrane of the brain, is said to cause Shajjah-i-ammah; and
(vi) by causing a fracture of the skull of the victim and the wound rupturing the membrane of the brain is said to cause Shajjah-i--damighah.
14. Shajjah-i-Khafifah as per the definition in Section 337 P.P.C., is an injury caused to the victim without exposing his bone whereas Shajjah-i-mudihah is an injury where the bone of the victim is exposed without causing fracture, therefore, these are two different kinds of Shujjah under Section 337, P.P.C. and its punishment are provided under Sections 337-A (i) and 337-A(ii)', P.P.C. respectively. A very significant difference in the two clauses i.e. Section 337-A (i) and Section 337- A(ii), P.P.C. is that offense "Shajjah-i-Khafifah" under Section 337A(i) P.P.C. as per Schedule 2 of the Cr.P.C.is bailable and non-cognizable whereas the offense "Shajjah-i-mudihah" under Section 337- A(ii), P.P.C. is non-bailable and cognizable.
15. Section 337 L(ii), P.P.C. provides that whoever causes hurt, not mentioned hereinbefore, which endangers life or which causes the sufferer to remain in severe bodily pain for twenty days or more or renders him unable to follow his ordinary pursuits for twenty days or more, shall be liable to daman and also be punished with imprisonment of either description for a term which may extend to seven years. (2) Whoever causes hurt not covered by subsection (1) shall be punished with imprisonment of either description for a term which may extend to two years, or with daman, or with both.
16. In the present case, the private respondents have been charged with 337-A(i), Sections 337-F (i), and 337 L (ii), i.e. Shajjah-i-mudihah and Shajjah-i-Khafifah. The trial court opened that the ocular account mentioned in FIR is not consistent with the medical evidence as per the content of FIR, lathi blows were caused to the injured but as per the Provisional Medico Legal Certificate, the kind of weapons used is sharp cutting and therefore, the matter requires further inquiry and the offenses, under sections 324, 337-A(ii) and 506(ii) P.P.C. do not fall within the ambit of the prohibitory clause of section 497 Cr.P.C.
17. As a result of the above discussion, no reasonable ground exists for the cancellation of bail granted to the respondents at this stage. However, it is also open for the learned trial Court to pass an order under section 497(5) Cr.P.C, based on the parameters set forth by the Supreme Court in the case of Ahtisham Ali (supra) and re-call its earlier order granting bail to the private respondents, if the trial Court finds that the private respondents have misused the concession of bail, without being influenced by the observations made hereinabove.
18. Consequently, these Criminal Miscellaneous Applications are disposed of.