This is an application for cancellation of to respondent No,
1. Respondent No, 1 alongwith two other co-accused, namely, Bashir and Jurak stand trial under section 302/34, P. P. C. The co-accesed Bashir is still absconding, whereas the second co-accused Jurak was admitted to bail by the learned Additional Sessions Judge by his order, dated 22nd August, 1982 on the ground that he was armed with hatchet, but there was no hatchet injury on the person of the deceased. It is alleged in the F. I. R. That respondent No, 1 and absconding Bashir had fired upon the deceased resulting into his death. The learned Additional Sessions Judge by his aforesaid order, dated 22nd August; 1982 declined to admit respondent No, 1 to bail. However, after the expiry of nearly 5 months he admitted above respondent No, 1 to bail on two grounds, namely, that though the prosecution witnesses were served but they have not turned up deliberately, in order to keep respondent No, 1 behind the bar and, secondly, that respondent No, 1 was sick.
2. As regards the first ground, it may be observed that respondent was arrested on 7th July, 1982 and on the date of granting of the bail tOlA him about less than 8 months had expired. I am of the view that non attendance by the witnesses in a case of this nature in which hardly 8 months had expired cannot be a ground to grant bail to an accused-person in a murder case. The Court had ample power to enforce the attendance of the P. Ws. It may be observed that section 497, Cr. P. C.
Provides a period of two years from the date of arrest which entitles an undertrial accused-person facing trial of an offence carrying punishment of death to bail if the case is not disposed of within 2 years. In other words, any delay in the trial of the case less than 2 years cannot furnish a ground for bail.
3. Reverting to the above second ground, namely, sickness, it may be pointed out that the learned Additional Sessions Judge has not referred the accused to the Civil Surgeon or to the medical board in order to ascertain, whether ailment of respondent No, 1 is such, which entitles him to bail on the medical ground. It is, therefore, evident that two grounds found favour by the learned Sessions Judge, were prima facie not sufficient.
3 (a). However, it has been vehemently urged by Mr. M. A. Rashid, learned counsel for respondent No, 1 that the applicant should have approached the learned Additional Sessions Judge for cancellation of the bail beer re invoking the jurisdiction of this Court, and secondly that even on merits respondent No, I is entitled to bail.
(b) In support of his first contention he has referred to the case of Mirza Khan v. Lal Khan and another , in which a learned Single Judge of the Lahore High Court has inter alia observed that the proper forum to apply for cancellation of the bail in the first instance is the Court which grants the bail. This may be true in a case where the person seeking cancellation of a bail advances a ground which accrues after the granting of the bail for example attempt on the part of the accused enlarged on bail to tamper with the witnesses or holding out threats to the complainant party. In such a case the person seeking cancellation of bail at the first intance should approach the Court, which had granted bail but this rule can not be pressed into service when the grievance of a complainant party is that the bail granting Court, granted bail on a ground which was not sustainable in law. In the instant case the grievance of the applicant is that the above two grounds which found favour with the learned Additional Sessions Judge were not sustainable in law. I am not therefore, inclined to hold that in the instant case the applicant could approach this Court for cancellation of bail without filing an application before the learned Additional Sessions Judge.
(c) Reverting to the above second contention, of Mr. M. A. Rashid, it may be mentioned that he has vehmently urged that according to the medical certificate the nature of injuries are such which must have been caused by one shot and not by 2 and 3 shots and as respondent No, 1 had not motive against the deceased, he had not caused the above injury but might have been caused by the absconding a caused Bashir against whom motive has been alleged. It will suffice to observe that there is nothing on record at present to indicate that 3 injuries referred to. By the Doctor in the medical certificate are the result of one shot. If evidence of the Doctor is recorded and if this is brought on record that factually the 3 injuries are the result of one shot, it will be open to respondent No, Ito apply for bail at that stage. The above ground cannot be pressed into service at present. It will also be open to respondent No, 11 to apply on medical ground if he can make out a case of the ailment, which entitles an accused-person bail in a murder case.
4. For the aforesaid reasons, the application is allowed, the to respondent No, 1 is cancelled. The learned Additional Sessions Judge is directed to cause the arrest of respondent No, 1 immediately after the receipt of this order. 1976 P Cr. L J 324