1. ' Complainant Muhammad Anwar has moved this application for cancellation of the bail granted to respondent No,1 Haroon by learned IIIrd Additional Sessions Judge, Karachi South under an order, dated 2-3-1991.
2. ' Haroon is facing trial in said Court for the offences punishable under sections 307, 323, 148 and 147 of the P.P.C. The case is outcome of F.I.R. No,557 of 1990 of Kharadar Police Station, Karachi.
3. ' Allegation against the respondent No,1 is that on 17-10-1990 at about 5-30 or 6-00 p.m. He went outside the house of complainant Saleh Muhammad, where he fired a pistol at Noor Hussain brother of the complainant. Noor Hussain received the injuries but with help of the complainant he caught assailant Haroon at the spot. Haroon was, however, rescued by co-accused Saleem alias Sullo, Ali, Juma and other persons who got released Haroon after inflicting blows to the complainant-party with Dandas and bottles. Complainant also received injuries. The complainant and Noor Hussain were taken to the Hospital by Asif, Iqbal Saleem and Qadir, who had seen the incident. Saleh Muhammad lodged such F.I.R. On the same day at 8.05 p.m. Earlier on the same day Haroon had maltreated the complainant at 12.00 noon. Motive for the offence was that the complainant and Noor Hussain had filed an ejectment case against Haroon in respect of a shop.
4. ' Prior to this, respondent No,1 moved Criminal Bail Application No,1172 of 1990 but the same was dismissed by this Court under an order, dated 22-1-1990. Subsequently the bail has been granted to the respondent No,1 after examination of P.Ws. Saleh Muhammad, Noor Hussain and Medical Officer Shafi Nizami.
5. ' Mr. Muhammad Anwar Tariq learned counsel for the applicant/complainant argued that the incident had taken place in broad daylight when Haroon had fired pistol at Noor Hussain and there was no question of any mistake in identification, as the assailant was caught at the spot but he was got released by the co-accused. It was further argued that while granting bail to respondent No,1, the trial Court had relied on versions of the complainant and P.W. Noor Hussain, but those versions had not improved case of the respondent No,1. It was added that there was no fresh ground for grant. Of bail, after refusal of bail by this Court on 22-11-1990 and that the trial Court had discussed order of this Court and had interposed certain things which did not exist. It was further argued that remaining of the respondent No,1 in jail for five months was no ground for bail, as the statutory period is two years and that the discretion had not been exercised properly.
6. ' Mr. Muhammad Jamil learned counsel for the respondent No,1 argued that the trial Court had granted bail after examining three material witnesses and that it was the complainant party which had started the firing. Learned counsel for the respondent No,1 contended that the respondent No,1 is not tenant of the complainant party but it was Juma who was the .Tenant and against whom said case was filed in January, 1980. Learned counsel further argued that the trial had commenced and there was no point to cancel bail. Learned counsel for the respondent No,1 cited the cases of (i)
7. State v. Rashid Ahmed 1988 SCM R 1129; (ii) Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC 585; (iii) Nazar Muhammad v. State and another 1977 PCr.LJ 277; (iv) Mst. Hayat Noor v.
8. Khan Bahadur and others 1989 Pakistan Annual Law Digest 592(1); (v) Allah Ditta and others v. State 1970 PCr.LJ 666; (vi) Muhammad Rashid v. Muhammad Khalid etc. 1986 PCr.LJ 2848 and (vii)
9. Mumtaz v. Theraj and others 1989 Pakistan Annual Law Digest 210(2).
10. ' Mr. Wakil Ahmed Qureshi, Advocate for Advocate-General Sindh challenged right of the applicant to move for cancellation of bail and argued that it was the prerogative of the State to move for cancellation of bail. Another objection raised by him was that the trial Court was not moved for cancellation of the bail. Mr. Wakil Ahmed Qureshi, spoke about the counter-cases and argued that as per the medical evidence respondent No,1 Haroon had received grievous injuries on his head. It was added that there were three injured persons from the side of respondent No,1 and two injured persons. From the side of the applicant. Lastly it was argued that there was no justification for cancellation of bail.
11. ' Before discussing the facts it is necessary to discuss the authorities cited by learned counsel for the respondent No,1. In (i) above the accused party and their relatives had taken an oath before gathering of tribesmen proclaiming innocence of the accused and the investigating agency had taken note of oath having been taken by relatives of the accused about his innocent but had expressed no opinion about the accused being not guilty of the offence and the High Court discussed available evidence but did not give any finding that there were no reasonable grounds for believing that the accused had committed a non-bailable offence. It was held that the accused could not have been admitted to bail on ground of further inquiry in absence of forging that there were no reasonable grounds for believing that the accused had committed a non-bailable offence. In (ii) above it was observed that it is well-known practice of the superior Courts of Pakistan that when a murder case is fixed for hearing, ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge. In spite of observing so, the Supreme Court of Pakitan declined to cancel the bail on the ground that the trial was to commence within a fortnight. It was also observed in the cited case that when the Court finds that the two essential conditions contained in section 497(2) of Cr.P.C. Are satisfied, the accused shall become entitled, as of right, to bail. In (iii) above it was held that the provisions regarding concellation 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. It was also held that in cases where there is reliable evidence to show that the accused was misusing the liberty to divert the course of justice, the Court would be competent to deprive him of that privileges. In the cited case the cancellation of bail was ordered by the trial Court on the main grounds that there were reports filed with the police by the complainant and injured, amply proving the fact that the applicant had in fact violated the trust reposed in him by the Court and that he had harassed the witnesses and tried to tamper with the evidence and that the accused had remained absent during the hearing of the cancellation application. In the circumstances it was held that veracity of the reports was not above board and they were not supported by evidence. Hence the order cancelling the bail was set aside. In (iv) above the view taken was that where the accused had made out a case of mala fides against police and the medical evidence had contradicted the story given in the F.I.R., and the challan was submitted by police against the accused in Court and the trial was to commence shortly, then no useful purpose could be served by remanding the accused to custody. In (v) above, there were two different versions in matter of physical possession of a land and the accused were challaned under section 302, P.P.C. While the counter-case was registered under section 307, P.P.C. And the accused also suffered injuries. In the circumstances the case was held to be of further enquiry. In (vi) above, three persons accused in a murder case were declared to be innocent during police investigation on basis of their alibi plea, and the complainant moved the High Court for cancellation of bail and the State Counsel admitted that police was not able to record any evidence in proof of plea of alibi on the basis of which the accused were declared to be innocent. In the circumstances the High Court of Lahore cancelled bail of two of the accused who as per the F.I.R. Were attributed firing at the deceased, but cancellation of bail in respect of the third accused not attributed firing, was declined. In (vii) above, there were cross-cases and two persons from one side and one person from the other side had lost their lives and all the accused in the cross-case were released on bail and the case diaries showed that there was compromise between the parties immediately after the occurrence. In the circumstances the bail was refused to be cancelled.
12. ' The trial Court has examined Dr. Shall Nizami who had examined injured Saleh Muhammad and Noor Hussain. He deposed that Saleh Muhammad had received three injuries with hard and blunt substance such as fist or fall on the ground, and out of the those injuries the one on left hand dorsum was declared to be grievous. The doctor found six injuries on person of Noor Hussain and they appeared to have been caused by some fire-arm weapon such as revolver or rifle in which bullets are used. Out of said injuries the one on right hand was determined to be grievous in nature while the rest were simple. In this way Saleh Muhammad or Noor Hussain did not receive any grievous injury on a vital part of body. The Medical Officer also examined accused Haroon (respondent No,1) and Ali. Ali had two simple injuries which were caused by a hard and blunt substance. Haroon had received four injuries out of which one on centre of upper and lower hip was grievous while rest were simple and all the injuries appeared to have been caused by some hard and blunt substance such as Lathi. In his cross-examination Dr. Shafi stated that accused Ali and Haroon were admitted in Neuro Surgery Ward as they had head injuries and they remained as indoor patients for 10 days. This shows that Haroon had received more serious injuries than the injuries sustained by complainant Saleh Muhammad and P.W. Noor Hussain. In his F.I.R. Saleh Muhammad conceded the fact that Haroon had received the injuries including an injury on head.
13. ' After examining Dr. Shafi Nizami and eye-witnesses Saleh Muhammad and Noor Hussain, the trial Court in his order, dated 2-3-1991 granting bail to Haroon, observed as below:--- "In cross-examination specific question was put to the complainant and the injured, and they specifically denied that they had caused any injury to any of the accused. Three of the accused had suffered injuries. And one of the accused namely Haroon had suffered one grievous injury. This accused Haroon was also admitted as indoor patient for some time. As already stated the complainant and injured have admitted in their cross-examination that the meters meant for the shop of accused were got removed by them and they also admitted that they were re-fixed at the same place on the complaint of accused. In these circumstances, there are two versions about the fight, one that the accused were provocated for filing of the ejectment cases and the other that the complainant party was provocated on the re-installation of the meter at their original place on the complaint of the accused. The case has proceeded and now the evidence of the accused party is to be recorded and in the light of their respective evidence it is yet to be seen as to which of the party was aggressor."
14. The grounds for grant of bail to Haroon are weighty. The trial Court appears to have exercised its discretion judicially and fairly after examining material evidence in the case. No case is made for cancellation of bail. The application stands dismissed.