1. ' This application has been moved on behalf of the complainant Ghulam Hussain for cancellation of the bail granted to the respondents Nos.2, 3 and 4, namely, Muhammad Hasan, Muhammad Usman and Muhammad Saleh who alongwith other co-accused have been sent up to stand trial in case registered with Police Station Garhiyasin under sections 302, 307, 148, 149, 452, P.P.C. As Crime No,36 of 1987.
2. ' Briefly the facts are that the said FIR was filed at 7 0' clock in the morning by Ghulam Hussain alleging that on the previous night at about Somhani time the complainant alongwith his other family members was sitting in the courtyard of his house whereas their neighbours Muhammad Panah, Mst. Hawa and Shandad were also sitting in front of their house in open courtyard and that two lanterns were burning there when they saw the present respondents 2 to 4 alongwith other co- accused who came there. Co-accused Iqbal is said to have fired straight shot at deceased Allahwarayo while the present respondent Muhammad Hasan is said to have fired at PW Bakhshan.
3. Respondentg Muhammad Usman and Muhammad Saleh are alleged to have caused lathi blows to Mst. Khanzadi, Mst. Naziran and Mst. Hawa which are alleged to have hit them on the legs. The injury sustained by Bakhshan is also certified to be simple in nature and on the non-vital part of body. Co-accused Mahmood and Ali Nawaz are said to have fired at deceased Muhammad Panah. The motive in the FIR is said to be that Imdad son of co-accused Iqbal was murdered about seven months back and in that case the present complainant/applicant Ghuiam Hussain alongwith his relatives Gullan, Mithal and Ghulam Rasool were challaned of whom the present applicant was out on bail while the others were in jail at the time the present incident is said to have taken place. The bail application was moved before the trial Court for the present respondents 2 to 4 who were granted bail mainly on the ground that the injuries alleged to have been caused by them were simple in nature and that their identification was doubtful and also that it was yet to be determined if they shared common intention with the other co-accused.
4. ' I have heard MrAtta Muhammad, the learned counsel for the applicant who is assisted by Mr.Pir Shabroze Sarhindi. He has submitted that respondent Muhammad Hasan is said to have been armed with a gun which he fired at PW Bakhshan and that the said gun has been recovered from him while the other respondents have given Lathi blows to the ladies. From this he has submitted that by virtue of the provisions of sections 148 and 149, P.P.C. It can be assumed that they formed the unlawful assembly alongwith other co-accused with the common object whereby they caused the death of two persons Allahwarayo and Muhammad Panah and caused injuries to PW Bakhshan and three ladies. He has also submitted that the facts of the case show the common object of the accused party and that active role has been assigned to the present respondents 2 to 4 also and, therefore, this is a fit case for cancellation of hail. He has placed reliance on the following cases:-
(1) Abdul Ghaffar v. Sakhi Sultan and 3 others 1988 SCM R 649.
(2) Mohri Khan v. Ghulam Rasool and another 1988 SCM R 335.
(3) Muhammad Azim and others v. The State and another 1988 SCM R 545.
5. ' Mr.Yasin Khan Babar, the learned counsel for the complainant repelling the above submissions has stated that the present respondents Muhammad Usman and Muhammad Saleh are alleged to have caused simple injuries on the legs of the three ladies with lathis whereas respondent Muhammad Hasan is said to have caused gunshot injury to PW Bakhshan on his thigh which is not a vital part of the body. He has further submitted that the case of the present respondents is distinguishable from that of the other co-accused who are alleged to have caused fatal blows to the two deceased persons. He has also submitted that the FIR is filed with delay of 9/11 hours which shows that the complainant party had sufficient time to cook up a story to involve the present respondents with whom admittedly they are on inimical terms. He has submitted that the contents of FIR show that there were two lanterns burning in the courtyard of deceased Muhammad Panah on which the accused were identified by the complainant party but no such lanterns were secured by the police at the time of preparation of mashirnama of vardat nor the mashirnama of vardat makes any mention as to where the said lanterns were placed. Lastly he has submitted that the motive if available to accused party was against the present complainant as he was involved in the murder case of son of co-accused Iqbal but no injury is caused to the complainant nor it is alleged that any of the accused had fired at him. He has placed reliance on the following cases:--
(1) Muhammad Akbar and 4 others v. The State and another 1978 SCM R 7.
(2) Khadim Hussain v. The State and another 1978 SCM R 146.
(3) Piaro v. The State and another 1984 P Cr.LJ 149.
(4) Shahid Arshad v. Muhammad Naqi Butt 1976 SCM R 360.
(5) Nazar Muhammad v. The State 1977 P Cr.L.1 277.
6. ' Mr.Muhammad Sidiq Kharal, the learned Additional Advocate-General has opposed the present application for cancellation of bail on the grounds similar as advanced by the learned Advocate for the respondents.
7. ' I have perused the case papers and have given anxious consideration to the submissions of the learned counsel for the parties. It may be observed that each criminal case has its own facts and features and attending circumstances and the same is to be considered in light of these facts and circumstances. From the facts of the present case it is obvious that the present respondents Nos.2 to 4 are attributed simple injuries which are caused by them on the non-vital parts of body of the PWs. Respondents Muhammad Usma n and Muhammad Saleh are said to have given lathi blows only whereas respondent Muhammad Hasan is said to have fired with his gun but did not cause any grievous injury to PW Bakhshan. It is also not alleged by the counsel for the applicant that the respondents have misused or abused the concession of bail granted to them. With regard to the case-law cited by the learned counsel for the applicant I am of the view that the facts in those cases are not applicable to that of the present case. In the case of Abdul Ghaffar v. Sakhi Sultan the bail was cancelled for the reason that the four accused were all alleged to be armed with firearms and were alleged to have caused injuries to eight persons by indiscriminate firing. The present case, therefore, stands distinguished from the said case. In the second case of Mohri Khan v. Ghulam Rasool the bail was cancelled on the ground that sufficient material existed to show that a prima facie case was made out against the respondents as one Mst.Ghulam Fatima made a confession implicating herself as well as the two respondents and also that father of accused Muhammad Bashir had made a similar statement to the effect that the said accused had confessed the matter to him. In the present case no such circumstances exist. In the third case of Muhammad Azim v. State Hon'ble Supreme Court maintained. The order of the High Court cancelling the bail in respect of some of the co-accused for the reason that the Sessions Court had allowed the bail to them on wrong facts stated, that the trial was to commence in near future and also that all the accused had actively participated in commission of the murder wherein 22 injuries were caused to the deceased.
8. ' From the above facts, with all respects, I am of the view that the facts of the cited cases do not apply to the present case. As against this the case-law cited by the learned counsel for the respondents/accused is applicable to the present case as the principle laid down in these cases would be applicable to the present case. In the case of Muhammad Akbar v. State it was held by the Hon'ble Supreme Court that the accused who are not alleged to have inflicted any injury to the deceased but are alleged to have caused simple injuries to the complainant, were entitled to grant of bail. In the case of Khadim Hussain v. State the Hon'ble Supreme Court held: "Except for the fatal injury attributed to Sultan accused at the head of Ismail all the remaining injuries suffered by the complainant party at the hands of the accused were simple in nature and not on any of their vital parts. On these allegations in the FIR it does not prima facie appear that the accused were sharing the common intention to cause the death of Ismail deceased and in the absence of any evidence recorded in the case, it is yet too early to hold Idrees respondent vicariously liable. He is merely attributed to have inflicted some of the simple injuries found on the person of Khadim Hussain complainant. In this view of the matter we find that the respondent was entitled io bail."
9. ' In the case of Shahid Arshad v. Muhammad Naqi Butt the Hon'ble Supreme Court declined to interfere with the bail granted to the accused when there was nothing on record to show that they had misused the privilege. In the case of Nazar Muhammad v. State, Zafar Hussain Mirza, J. (as he then was) held: "The provision regarding cancellation of bail cannot be made available to private parties to satisfy their grudges against each other or to use as a means of wreaking their vengeance. Of course in cases where there is reliable evidence that the accused was misusing the liberty to divert the course of justice the Court would be competent to deprive him of that privilege. I am, therefore, clear in my mind that the reports constitute merely allegations by private individuals, the veracity of which was not above board as no evidence was produced in support of the facts before the learned Sessions Judge."
10. ' In the other case of Piaro v. State, Munawar Ali Khan, J. (as he then was) has held that the cancellation of bail cannot be permitted to be pressed by the private party to harass the accused whenever it suits him or he selects his own timings for moving such application. In this case the learned Judge had declined to interfere with the bail granted by the lower Court in absence of anything to show that the said concession was being misused.
11. ' From the above discussion it may be observed that the present applicant has failed to make out a case for cancellation of bail. There is nothing on the record nor even alleged by the applicant/complainant that the present respondents/accused have misused or abused the concession of bail granted to them. The present respondents are alleged to have caused simple injuries to the PWs which are not on vital parts of the body and thus it will be too early to go into deeper appreciation of evidence at this stage in order to determine their sharing of common intention with the other co-accused.
12. ' For the above reasons I find no substance in the present application which is accordingly dismissed.