Through the under consideration petition under section 497(5) Cr. P.C., Muhammad Nasir Butt, the injured P.W. In the instant case, seeks the cancellation of bail of Shahid Ashraf Butt granted to him by the Special Court Punjab constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as the Act), vide order dated 3-4-1990 and that of Sh.
Nasir Ahmad, who was granted bail by Syed Inwaar Hussain, Judicial Magistrate vide order dated 19-2-1990.
2. The respondents are involved in a case under section 307/326/34, P.P.C. Arising out of F.I.R. No. 50/90, dated 8-2-1990, registered at Police Station Misri Shah, Lahore.
3. The allegation against respondent No.1 is that he fired with mauser at the petitioner which hit him on the front side of chest. The said injury, vide medico-legal report, was declared to be grievous, whereas respondent No.2 is alleged to have fired ineffectively at the petitioner with revolver.
4. Learned counsel for the petitioner vehemently contended that the respondents are involved in a case which falls within the prohibitory clause, thus' there was no justification for the trial Court to release respondent No. 1 on bail in a hasty and illegal manner. She submitted that respondent No. 1 is the main accused and the allegation against him is that he caused injury to the petitioner with mouser which was found to be grievous in nature, hence his intention to commit the offence under section 307, P.P.C, is manifest in view of the nature and location of the injury.
Learned counsel further contended that the names of the respondents are mentioned in the promptly lodged F.I.R., as accused persons, and the occurrence took place in the broad daylight, the respondents led to the recovery of the alleged weapons of offence, and in the absence of any previous enmity, there was no legal justification for the Courts below to pass the impugned orders allowing bail to the respondents in the presence of ample material collected by the prosecution to demonstrate that there exist reasonable grounds to believe that the respondents are involved in a case falling within the prohibitory clause of the Act. The impugned orders are illegal, perverse and contrary to law, hence liable to be set aside.
5. With respect to respondent No.", the learned counsel urged that he came fully armed with respondent No.1 hence he shared the common intention with him although he fired ineffective shots on the injured P.W. Yet he is liable vicariously for the offences in view of the facts mentioned in the FIR., that both the respondents had brought weapons of offence from their houses, which show the community of intention of the respondents, on account of the dispute over the removal of bricks from the street, which is the motive for the crime.
6. The learned counsel for the State has supported this petition qua respondent No.1 He also stated that the challan was submitted before the Special Court on 20-2-1990, the Court had the jurisdiction to decide the bail application.
7. The learned counsel for the respondents has strenuously opposed this cancellation of bail application on the ground that the order granting bail to respondent No.1 cannot be termed as fanciful; perverse or contrary to law and placed reliance on Abdur Razzaq and others v. Noor Muhammad 1976 SCMR 284, Shahid Arshad v. Muhammad Naqi Butt and 2 others 1976 SCMR 360 and Mst. Irshad Begum v. Muhammad Afzal and another 1985 SCMR 1691 especially on the following observations of their Lordships of the Supreme Court in Manzoor Ahmad and 4 others v.
The State PLD 1972 SC 81: "The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case and all the other relevant circumstances surrounding the occurrence."
The learned counsel submitted that the respondents took up the plea of self---defence at the earliest opportunity, hence case against them is one of further inquiry and the impugned orders granting bail, are perfect and legally justified.
8. I have carefully examined the respective submissions of the learned counsel for the parties and have gone through the record as well as the case-law cited by the learned counsel for the respondents. I find substantial force in the submissions of the learned counsel for the petitioner that in the present case, the trial Court with undue haste, without the appreciation of facts, on the erroneous application of law, granted bail to respondent No.1, which has resulted into the miscarriage of justice, as such, the order of the Special Court is fanciful, perverse and contrary to law. In order to arrive at the conclusion, whether there exist reasonable grounds to connect the accused with the crime, I respectfully follow the aforementioned principle of law laid down by their Lordships of the Supreme Court m Manzoor and 4 others v. The State. Applying the same principle of law, I find, that the respondents are named in the F.I.R. As the accused, and respondent `No.1 is the person who caused injury to the petitioner on the chest with mouser which was declared grievous as per medico-legal report, both the respondents, prima facie, had the motive for the commission of crime on account of the dispute over the removal of bricks lying in the street. In the absence of any previous enmity and in the presence of the alleged recovery of the weapons of offence at the instance of .The respondents, there exist reasonable grounds to believe that the respondents are connected with the crime which falls within the prohibitory clause of section 5- A(8) of the Act. In the presence of the aforementioned material there was no legal justification for the trial Court to release respondent No. 1 on bail.
9. For the foregoing reasons, I accept the petition against respondent No.1 and set aside the order dated 3-4-1990, granting bail to him. He should surrender to his bail bond and be taken into custody immediately as under-trial prisoner.
10. However, the case of respondent No.2 is slightly different from respondent No.1, on facts as well as in law. The legal objection taken by the learned counsel for respondent No.2 that the petition for the cancellation of bail against the said respondent is not maintainable before this Court, is legally well founded and in all probability the petitioner should have moved the Special Court for the cancellation of his bail. In view of case-law i.e. Mirza Khan v. Lal Khan etc. 1976 P Cr. L J 324, the petition for the cancellation of bail against respondent No. 2 is dismissed.