This application, which has been filed under section 497(5), Cr.P.C. For cancellation of bail of respondent Master Muhammad Gul, was dismissed by me by a short order, dated 1-9-1991 for the reasons to be recorded subsequently. These are the reasons for the same.
2. The facts giving rise to the present application are that a case was registered under section 302/34, P.P.C. Against the respondent No.1 and his co-accused at Police Station Mangli within the jurisdiction of Sessions Court Sanghar. It was alleged that about eight months prior to the incident a quarrel had taken place between one Muhammad Sudheer and the respondent No.1 and that on 21-4-1990 at about 6-30 p.m. Complainant and one Arshad Mahmood were returning after taking chaff from their lands. When they reached the said respondent's uncultivated land situated in Block No.8, they were confronted by the said respondent and co-accused Rahim Gul and Javed Gul, both sons of the respondent. As the complainant and the said Arshad Mahmood approached the accused, Rahim Gul abused Arshad Mahmood enquiring why his brother Muhammad Sudheer had quarrelled with him and that he would not spare Arshad Mahmood. Thereafter Rahim Gul pushed the chaff which Arshad Mahmood was carrying on his head and then caused hatchet blows on the head of Arshad Mahmood. Javed Gul and Muhammad Girl caused him Lathi blows. Arshad Mahmood fell down and went unconscious. While falling he raised cries which attracted Malik Sher Muhammad and Abdul Qadir who came running to the scene of the incident and on seeing them the accused left for their house.
3. Applicant Muhammad Gul apprehending his arrest, made an application for pre-arrest bail before the learned Sessions Judge, Sanghar, who vide his order, dated 23-7-1990 granted bail to the applicant. The ground which mainly weighed with the learned Sessions Judge was that statements under section 164, Cr.P.C. Of eye-witnesses Sher Muhammad and Abdul Qadir were got recorded by the police twice. In the first set of the statements, the witnesses did not implicate the applicant whereas in the second set of statements, the applicant was implicated. In presence of such background the following observations were made by the learned Judge in his order:-- "Presently, so far this accused is concerned two different statements, showing the innocence and the guilt are to be considered in the context of the principles laid down of the reasonable ground of guilt, which otherwise, the applicant would have been entitled after arrest. So, the question being, which version is correct, it will be therefore, for the safe administration of justice, that the applicant to remain on interim bail and Sessions Court has to see, how the evidence comes on the record, either to cancel the bail or grant it by confirmation."
Although according to the learned Judge, the applicant was to remain on interim bail but all the learned counsel agree that what he meant by the interim bail was that the bail granted by him could be cancelled after the trial of the accused had commenced and evidence in the case was recorded.
4. The main contention of Mr. Talib Hussain Arain, learned counsel for the applicant, has been that the accused nowhere indicated in his application for bail before arrest that he was being harassed by the police or that the F.I.R. Registered against him was mala fide. The learned counsel for the respondent No.1, on the other hand, has argued that very cogent reasons have been given by the learned Judge for grant of pre-arrest bail to the said respondent and since the respondent has now remained on bail for more than a year his bail ought not to be cancelled on such ground. A recent judgment given by the Supreme Court in the case of Meeran Bux v. The State PLD 1989 SC 347 has been cited before me wherein the case was remanded by the Supreme Court to the High Court for disposal on merits as according to the Honourable Supreme Court reference to the case of Murad Khan v. Fazal Subhan PLD 1983 SC 82 by the High Court was misconceived under the circumstances of the case. The reasons which weighed with the Supreme Court mainly appear to be that the co-accused in the case had already been granted bail and the appellant had already remained on bail without abusing the concession for more than a year. The reasons given by the learned Sessions Judge for the pre-arrest bail viz., that the injury was not on the vital part of the body of the deceased and was simple was held to be not without foundation. Consequently, the order of the High Court was set aside and the order passed by the Sessions Judge granting pre- arrest bail to the accused was upheld.
5. The circumstances of the present case, in my opinion, do not call for cancellation of bail and I find that the learned Sessions Judge has given cogent reasons for grant of pre-arrest bail in the case; notwithstanding the fact that it 8 was not alleged in the bail application filed before the learned Sessions Judge that the criminal proceedings initiated against the said respondent were for ulterior motive.
6. In the result, this application is dismissed but in view of the observations made by the learned Sessions Judge that the case can be reconsidered after some evidence therein was recorded and now since evidence has been recorded by the learned Sessions Judge, it would be open for the applicant to move the learned Sessions Judge for cancellation of bail.