Complainant, Muhammad Bux, has filed this application under section 497 (5), Cr. P. C. For cancellation of bail of respondents in a case under sections 302, 147, 148, 149, 447, 436, 379, 114, P. P.
C. Pending in the Court of IIIrd Additional Sessions Judge, Sukkur. A suo motu Criminal Revision No 46/1984 is also before me. I propose to dispose of criminal revision as well as cancellation application by a single order.
2. The facts of the prosecution case are that Muhammad Bux used to cultivate survey numbers 200, 201 and 286 in Deh Tarai, Taluka Rohri as he purchased the above from one Monshomal and there is an agreement for sale between them but Monshomal refused to get the documents registered for which Muhammad Bux filed Suit and sought injunction, on knowing that Monshomal transferred the land to respondent Jial by registered sale-deed.
3. On 19th March, 1982, complainant Muhammad Bux, his son Wali Muhammad and nephew Sahib Dino were standing on the land when respondent alongwith 7 others duly armed with hatchets, lathis and guns came and at the instigation of respondent Jial and accused Rahim Bux, the respondent/accused Muhammad Mureed, Noor Muhammad, Jaro, Sher Muhammad and Jial gave hatchet blows to Wali Muhammad and Sahib Dino. On cries Haji, Mauladad, Imamdino, Acher, Manoo and Kalander Bux came and tried to intervene who were also given injuries with lathis and hatchets. It is also alleged that accused Sher Muhammad set the hut at fire while Rahim Bux took licensed gun of complainant from there. They went away. Wali Muhammad and Sahib Dino died due to injuries. Muhammad Bux came at P. S. Kandhra where he lodged his report at 4-00 p.m.
4. Accused Khan Muhammad and Rahim Bux were granted bail by the trial Court when accused Muhammad Nawaz, Niaz Muhammad and Muhammad Mureed have been granted bail by this Court vide an order dated 15th August, 1982 (Criminal Bail Application No, 272 of 1984 Sukkur Circuit Bench), on the ground that three accused were said to be armed with lathis but there are no lathis injuries on the deceased. The application so far as respondents is concerned was not pressed. It was observed that they could move fresh application after some evidence is recorded.
5. The respondents repeated their application which was also dismissed by this Court on 24th January, 1983 (Criminal Bail Application 465/1982 Sukkur Circuit Bench) as not maintainable on the ground that case had not proceeded.
6. The case proceeded, the respondents moved bail application before IIIrd Additional Sessions Judge, Sukkur, who by an order dated 12th March, 1984 granted bail to respondents on the following grounds :-
(1) There are counter-cases and it is yet to be determined as to which party is aggressor.
(ii) All the witnesses have been examined and accused have remained in jail for about 2 years.
7. Mr. Imam Bux, learned counsel for the complainant, has contended that bail applications of the respondents were twice dismissed by the trial Court and application was not pressed in High Court.
Therefore, order of grant of bail is perverse. He argued that the grounds on which the bail has been granted were previously considered by the trial Court and bail was refused, He states that allegations against the respondents are that they were armed with hatchets and caused injuries to deceased Wali Muhammad and Sahib Dido and under these circumstances their application was not pressed before this Court. He has submitted that case has proceeded and all the witnesses have supported the prosecution case as such there are no reasonable grounds to believe that respondents are not guilty of offence punishable with death or imprisonment of life and his contention is that mere existence of counter-cases cannot create grounds for bail to the respondents. He has referred to cases reported in 1975 SCMR 399, 1976 SCM R 336 and 1978 P Cr. L J 632.
8. Mr. Rashid Yousuf Zai Advocate, appearing for the respondents, has argued that it is not known as to which of the accused caused injuries to deceased and witnesses have not specifically stated so. He has contended that six witnesses have been examined and there are contradictions in their evidence. His contention is that there are counter-versions and Jaro also lodged counter-case and same accused also sustained injuries. Mr. Rashid Yousuf Zai has also cited the cases on the point of counter-version and stated that injuries on person of the accused have not been explained by the prosecution. He has relied upon 1982 P Cr. L J 300, 1980 P Cr. L J 1067, 1984 P Cr. L J 600 and 1984 P Cr.
L J 149, and submitted that the bail has rightly been granted to the respondents.
9. Mr. M. I. Memon, Additional Advocate-General, appearing for the State, has supported the cancellation application as well as suo motu revision and argued that the witnesses who have been examined by the trial Judge and they have fully supported the prosecution case. He has also argued that one of the grounds for the grant of bail as given is that accused are completing two years in jail which is contrary to the provisions of law. He argued that bail could only be granted if they have remained in jail for more than 2 years provided delay in the trial is not attributed to the accused. He has pointed out that for about 6 months the trial could not proceed or be adjourned due to respondents.
10. The bail of the present respondents was refused by the trial Judge twice and on the ground of counter-version was available to them at that time and even then the bail application was not pressed before this Court and was withdrawn. Therefore, this ground for bail cannot be sustained.
The next ground on which the bail has been granted is that witnesses have been examined. The statements of the prosecution witnesses have been placed on the record where witnesses have fully supported the case of prosecution. The learned Judge is not justified in granting bail on the ground that witnesses have been examined. The learned trial Court could consider grant of bail under subsection (4) of section 497, Cr. P. C. When on the conclusion of trial he is of the opinion that there are reasonable grounds that accused had not committed any offence, but in the instant case no such observations have been made in the order, therefore, grant of bail at the stage of the conclusion of the trial when the witnesses have supported and formal witnesses are to be examined, is contrary to the spirit of the provisions of law. As regards delay is concerned, the learned trial Judge has not applied his mind and on this point I like to refer cases reported in 1983 SC MR 341 and a case reported in 1984 P Cr. L J 523. This case has proceeded and it has been held in 1980 SCM R 203 that when date has already been fixed and trial is about to commence shortly it not fair to go into the merits of the case and grant bail. In a case of Nisar Ahmed v. Dil Muhammad and 2 others held that grant or cancellation of bail in a murder case not proper because when trial has already commenced. I also refer a case of Khalid Dad and 7 others v. The State and there are many cases on this point that when one Judge has dismissed the application on merits the other Judge is not competent to go into the merits of the case. In the present case twice Additional Sessions Judge has dismissed the bail but it is third time when the learned Judge granted bail at the stage when apparently the prima facie case is made out. No doubt there were directions that the applicants could repeat the bail application after some evidence is recorded. But that does not mean that he was directed to release accused on bail after the evidence is recorded. A In all fairness he had to apply his mind on the circumstances, the evidence and other relevant facts. At this stage specifically it is stated in the evidence that all the five respondents were armed with hatchets and gave injuries to both the deceased who died due to hatchet injuries.
' The upshot of the above discussion is that in my opinion bail has not properly been granted.
Accordingly, I accept the cancellation application as well as suo motu Revision and set aside the impugned order dated 12th March, 1984 passed by III Additional Sessions Judge, Sukkur.
Consequently, the bail of the respondents is cancelled. They be remanded to custody. 1982 SCM R 1006 1982 P Cr. L J 713