' Shahid Mansoor Ahmad respondent herein is involved in a case under section 307/326, P.P.C.
Arising out of F.I.R. No,420/89, dated 26-8-1989, registered at Police Station 'A' Division, Kasur. He was allowed bail by the learned Sessions Judge, Kasur, vide his order, dated 20-1-1990. Muhammad Jafar petitioner, who is complainant in this case, has filed the present petition under section 497(5), Cr.P.C. For the cancellation of bail of the respondent.
2. The allegation against the respondent is that on 26-8-1989, at 2-30 p.m., he came to the shop of Tariq injured P.W. Situated in Nia Bazar, Kasur. He threatened Tariq to teach him a lesson for insulting him and simultaneously threw acid on his face, as a result whereof his face scorched.
3. Learned counsel for the petitioner vehemently contends that the respondent committed a heinous crime by throwing acid on the face of Tariq P.W., thus caused permanent disfiguration of his face. He has placed reliance on the photographs of the injured P.W. Before the acid burns and after the acid burns. He submitted that the doctor declared the said injury as grievous, hence the case against the respondent falls within the prohibitory clause and he is not entitled to bail.
4. The main contention of the learned counsel is that respondent's bail application was dismissed by the learned Magistrate on 22-10-1989. Against that order, he filed an application for bail before the learned Sessions Judge, Kasur, which was dismissed by him on 4-11-1989, after taking into consideration all the grounds on which the bail was sought. According to the learned counsel, one of the grounds was that there is discrepancy between the time of the occurrence and the time of examination of the injured P.W., hence the case is of doubtful character and the respondent is entitled to bail on the ground that the case against him is one of further inquiry. Learned counsel contends that after the rejection of this bail application, the learned Sessions Judge allowed bail to the respondent vide order, dated 20-1-1990, on the same ground i.e, that there is discrepancy between the time of examination of the injured and the time of report, hence the case against the respondent is one of further inquiry, without observing the formalities laid down in the State v.
Zubair and 4 others PLD 1986 SC 173 wherein their Lordships observed that the second or subsequent bail application to the same Court lies only on fresh ground, namely, the ground not existing at the time when first application was made. Their Lordships further observed that a ground which was available to the accused, but was not taken or not pressed would not be considered as fresh ground, and the subsequent bail application could not be filed on that ground alone. On the basis of the aforementioned legal authority, the learned counsel contends that in the present case, the respondent did urge this point that there is discrepancy between the medico- legal report and the F.I.R. Which has not been properly explained, hence the case against the respondent falls within the ambit of section 497(2), Cr.P.C. And he is entitled to bail as a matter of right. The learned Sessions Judge while rejecting first bail application of the respondent vide his order, dated 4-11-1989, impliedly repelled this ground, thereafter a second bail application was allowed vide impugned order on the same ground treating it as a fresh ground for a new application.
' It has been also submitted by the learned counsel that the impugned order is void, perverse and fanciful, because, firstly, this ground was not available to the respondent and; secondly, the adjudication of the bail application on the ground of conflict between the medical evidence and the F.I.R. Amounts to deeper appreciation of merits, which is not permissible at bail stage.
5. The learned counsel for the State has supported this application for the cancellation of the bail and submitted that the respondent has misused the concession of bail, as he created hurdle in the progress of the trial by moving frivolous applications.
' In the end, he submitted that the case against the respondent falls within the prohibitory clause, as sufficient material exists on the record to justify the cancellation of the bail.
6. The learned counsel for the respondent has vehemently opposed this petition for the cancellation of bail on the ground that the respondent was granted bail on 20-1-1990, he remained on bail for more than nine months, during this period, he has been regularly attending the Court and has not misused the concession of bail, hence there is no legal justification for the cancellation of the ed to the respondent. The learned counsel has further contended that almost all the evidence in this case has been recorded and only the evidence of the two Investigating Officers remains to be recorded, and in the presence of the legal flaw observed by the learned Sessions Judge while granting bail to the respondent, that there is glaring conflict between the time of occurrence and the time of the examination of the injured P.W., the case against the respondent, per se, is one of further inquiry, hence he was allowed bail on sound legal principles and that the bail canna be cancelled at this belated stage.
7. After hearing the learned counsel for the parties and perusing the police record, I find there is great force in the submission of the learned counsel for the petitioner/complainant that in the presence of the finding by the doctor that injury No,1 is grievous, as it has permanently disfigured the face of the victim, the offence committed by the respondent fairly and squarely falls within the scope of section 307/326, P.P.C.
8. In order to arrive at the conclusion, whether the case falls within the prohibitory clause of section 497, Cr.P.C. Or not, the Court at bail stage, has to examine the F.I.R., the statements of the witnesses and any incriminating evidence collected by the police during the investigation.
Applying the aforesaid principle of law, to the facts of the present case, I find that the complainant as well as the eye-witnesses have fully supported the prosecution case, the name of the respondent is mentioned as the sole accused in the promptly lodged F.I.R., thus in the absence of any previous enmity, there exist reasonable grounds to believe that the respondent is involved in a case which falls within the prohibitory clause of section 497, Cr.P.C., in normal course the respondent is not entitled to the concession of bail.
There is substantial force in the submission of the learned counsel for the petitioner that the learned Sessions Judge has committed gross illegality by entertaining the second bail application on the same ground after rejecting the first one, hence the impugned order is without jurisdiction, in view of the judgment of the Supreme Court, referred above. In the present case, the learned trial Court dismissed the bail application of the respondent vide order, dated 22-10-1989, after considering the contention with respect to the conflict of medical evidence and the F.I.R., the learned Sessions Judge, Kasur, also vide order dated 4-11-1989, dismissed the bail application.
' Non-discussion of the point that there is conflict between the medical evidence and the F.I.R. By itself does not constitute a fresh ground, on the basis of which second application could be entertained by the Sessions Judge.
9. In view of the above discussion, I accept this petition for the cancellation of bail, hence set aside the ing order, dated 20-1-1990, and direct that the respondent should surrender to his bail bond, he be taken into custody as an under-trial prisoner-in the aforesaid case.
Bail cancelled.