1. ' The petitioners in this petition are facing trial under section 324/34, P.P.C. Qisas and Diyat Ordinance read with section 427/34, P.P.C.
2. ' The brief facts of the case are that on 18-4-1992 Mst. Shazma put her clothes 0.. Fire as a result of which her clothes caught fire. The petitioner No,2 attempted to extinguish the fire. Consequently he also received burn injuries on his hands. Both the injured were removed to the hospital where the wife of petitioner No,2 made a statement to the effect that she caught fire on her own account. Mst.
3. Shazma was discharged from the hospital on 8-6-1992. She went to the house of her parents while the child remained with the petitioner No,2.
4. ' On 12-6-1992 at about 10-30 p.m. The father-in-law of petitioner No,2 and three brothers-in-law Arif, Aamir and Aasim forcibly entered the house of the petitioner No,1 where the petitioner No,2 was also staying and all of them assaulted petitioner No,2. Aamir brother-in-law of the petitioner No,2 is working as constable in Karachi Police also fired at the petitioner No,2 and a neighbor Saeed but both of them were miraculously saved. Finally they forcibly kidnapped the son of the petitioner No,2. The petitioner No,2 having failed to get redress from the police, sent an application to the In charge Korangi Police Station on 12-6-1992 and since no action was taken, the petitioner No,2 then sent an application to the Corps Commander, Karachi, dated 17-6-1992. Finally F.I.R. Was registered as F.I.R. No,492 of 1992.
5. ' It is alleged that as a counterblast to the F.I.R. Lodged by the petitioner No,2, his wife Mst. Shazma filed a false and fabricated report on 5-9-1992 which was converted in F.I.R. No,151/92 stating therein that petitioner No,1 incited the petitioner No,2 who put kerosine oil on her and set her on fire.
6. ' Both the petitioners approached the Sessions Court for grant of bail. They were enlarged on bail vide order, dated 21-10-1992 and 14-11-1992 respectively. Thereafter on 14-11-1992 Mst. Shazma filed an application before the learned Sessions Judge stating therein that she apprehends danger to her life in the hands of her husband, petitioner No,2 herein, and his mother petitioner No,l. The learned Sessions Judge cancelled the bail on 18-4-1992. Hence the present petition.
7. ' I have heard Mr. M. Ilyas Khan, learned counsel appearing for the petitioners and Mr. A.A.
8. Muhammadally, learned Additional A.-G. Appearing for the State. Mst. Shazma the complainant and also her father Syed Muhammad Rafi.
9. ' Mr. M. Ilyas Khan has contended that the settled principles for cancellation of bail require that there stood be substantial evidence produced before the Court showing that the accused who have been granted bail, were misusing the concession by threatening on phone. Mr. M. Ilyas Khan has urged in this case that there is total lack of such evidence in so far no affidavit whatsoever was filed to establish the fact that the petitioners had threatened her.
10. ' Mr. A.A. Muhammadally, learned Additional Advocate-General does not support the impugned order. He has submitted that there was no sufficient material before the learned Sessions Judge to come to a finding that the petitioners had misused the concession of bail.
11. It was the duty of Mst. Shazma to have filed her own affidavit that the petitioners have threatened her. In absence of any evidence to that effect, mere filing of an application, in my opinion, is not sufficient to resort to the drastic action of cancellation of bail. I am of the humble opinion that once the accused A person is admitted to bail, he cannot be deprived of his liberty without there being tangible evidence to the effect that he misused the liberty to the prejudice of due administration of justice.
12. ' In the case of Nazir Muhammad v. The State 1977 PCr.LJ 277, it was held that the provisions 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. It was observed that of course in cases where there is reliable evidence that the accused was misusing liberty to divert the course of justice, the Court would be competent to deprive him of that privilege. In the instant case, it appears that the threat mentioned in the application is merely an allegation, the velocity of which was not above board as no evidence was produced before the Court.
13. ' The conditions for grant' of pre-arrest bail are well-settled (see PLD 1983 SC 83 and 1988 SCM R 1223). The criteria laid down in these decisions is applicable to the facts of the present case.
14. The dispute is between husband and wife and there is delay in lodging F.I.R. And there is said to be no eye-witness of the incident even in the F.I.R. The petitioners are educated persons and they apprehend arrest at the hands of police with ulterior motives. The petitioners have also lodged F.I.R.
15. Which is prior in time. In the facts and circumstances of the case, the petitioners are entitled to the concession of bail.
16. ' In view of the above discussion, interim on 21-4-1993 is hereby confirmed on the same terms and conditions.
17. ' The petitioners are directed to associate with the police investigation in all respects and their failure in this regard shall entitle the prosecution to apply to the trial Court for cancellation of the to the petitioners by this Court.
18. ' It is also clarified that this order shall not prevent the prosecution from applying to the trial Court for cancellation of by this order if sufficient material is produced by the prosecution In support of the charges against the petitioner. On such application being made, the trial Court shall deal with it and pass any order that may be deemed fit and proper according to law. It goes without saying that any observations made by the trial Court or by me in this order would have no bearing or relevance on the trial.