' Farooq Shah respondent has been allowed bail by the learned Sessions Judge, Abbottabad vide order, dated 20-2-1997. He is charged in a case registered as F.I.R. No,156, dated 31-10-1996 under section 302, P.P.C., of Police Station Bakot District, Abbottabad.
2. The brief facts as borne out from the report made by Imran complainant are to the effect that on the day of occurrence he alongwith his father (Muhammad Siddique), the deceased, and Jehangir Khan, while on the way from the fields reached the place of occurrence, Farooq Shah accused called Muhammad Siddique deceased by inviting him to a cup of tea. On the said call, the deceased started towards the house of the accused when, Farooq Shah fired with .30 bore pistol as a result of the firing Muhammad Siddique father of the complainant was hit and died on the spot.
' Motive for the occurrence is stated to be (sic).
' Complainant of the case aggrieved from the order of bail has come to this Court under section 497(5), Cr.P.C. And has sought cancellation of the bail so granted.
3. Learned counsel for the complainant forcefully argued that the occurrence has taken place at day time, single accused is charged for the commission of the offence; that there is no blood feud enmity of the degree which shall prompt the complainant party to level a false charge against the accused-respondent; that the medical evidence and the site plan are in the conformity with the version of the prosecution as set out in the F.I.R.; that Jehangir Khan an eye-witness of the occurrence fully supports the case.
' It was also argued that the learned Sessions Judge has exercised jurisdiction in a manner which is contrary to the dictums of the Supreme Court of Pakistan and this Court; the order of bail was also challenged on the ground that the learned Sessions Judge has taken into consideration the matter extraneous to the facts of the present case and that the character of the deceased has been discussed in the light of some F.I.Rs,, which are not relevant and hence the learned Sessions Judge has passed an order which is not sustainable in law.
4. Learned counsel for the respondent argued, that the discretion exercised by the learned lower Court should not be interfered with, as the same is in accordance with law and that generally, once the 'higher Courts are reluctant to interfere in bail orders. In support, learned counsel relied on Razi Khan v. Muhammad Mushtaq and others 1996 SCMR 984 the dictum laid down is: "Considerations for the grant of bail and cancellation thereof are altogether different. Once bail is granted to an accused, then strong and exceptional grounds would be required for interference."
' The main contention of the learned counsel for the respondent was that the challan is complete and the case has been sent up for trial to the competent Court, and therefore, on this ground alone the order granting bail shall be maintained and cancellation application be dismissed. In this respect reliance was placed on Allah Rakha v. State 1994 P.S.C, (Criminal) page 975' (sic), Muhammad Ismail v. Muhammad Rafiq PLD 1989 SC 585 and Akmal Maseeh v. Salamat Maseeh 1988 SCMR page 918. The Honourable Supreme Court of Pakistan in the above cited judgments has laid down a principle that once challan has been filed and trial has commenced or is to commence in the near future the to an accused should not ordinarily be cancelled.
5. Learned counsel also argued that the order of the learned Sessions Judge is based on correct appraisal of material available on the file and in this respect reference was made to the medical evidence according to which the post-mortem was conducted at 9-00 a.m. On 1-11-1996 while the probable time between death and post-mortem has been given as 12 hours. It was argued that by.
Calculating the time as given in the post-mortem report and placing it in juxtaposition with the time of occurrence as given in the F.I.R., which is 10-30 a.m. On 31-10-1996 the two timings are not reconcilable because according to the medical. Report the deceased would have died at 9-00 p.m. On 31-10-1996. In support of the above contention that where medical evidence is inconsistent with the other evidence bail has been granted, reference was made to Muhammad Rahim v. State, 1996 PCr.LJ page 1165, Jan Muhammad alias Janoo v. State 1994 PCr.LJ page 541 and Ghulam Hussain alias Guddo v. State 1996 PCr.LJ page 368.
6. The learned State Counsel also opposed the order of grant of bail in this case and adopted the arguments of the learned counsel for the complainant.
7. After hearing the learned counsel for the parties and having gone through the record of the case I am of the considered view that the to the accused-respondent is in violation of all the legal norms. The ratio of the case law cited by the learned counsel for the respondent is not applicable in a case where a single accused is charged with no background of blood feud enmity.
8. No doubt that the time of occurrence is 10-30 a.m. And the report has been made at 23-00 hours on the same day i,e,, 31-10-1996 but the area where the occurrence took place is nully and an approach for going to the police station or somebody from the police station coming to the spot is to take sufficient time. Otherwise, too, it is a fact which is to be highlighted during the trial and the complainant as well as the Investigating Officer can be confronted in respect of time of occurrence and time of report by soliciting at the trial the mode of journey and the condition of road etc.
9. The ground that the deceased was a man of bad character is not relevant and mere placing of copies of F.I.Rs,, would not show that the deceased was done to death by some other enemy and not by the accused-respondent. Has it been so, then the complainant party should have charged their enemy instead of charging a person who is innocent.
10. The main ground that has prevailed before the learned Sessions Judge appears to be the duration of time between death and post-mortem. I will forcefully observe that a tendency is now prevailing in the country where either due to some ulterior or dishonest motive the doctor temper with their honest and correct opinion or sometime due to lack of sufficient experience, opinions are given on mere conjectures or some time the opinion is based on innocent mistake in mathematical calculation.
' The learned Sessions Judge has calculated the time of death to be possible at 9-00 a.m. On 31-10- 1996 but,. Has conveniently ignored the first page of post-mortem report where under the column"
Date and hour of death" the time given is 31-10-1996 between 10 a.m. To 12-00 noon. I will not make further comments on the medical opinion lest it may prejudice the case of the defence at the trial.
Suffice to say that the medical opinion or any. Conflict or contradiction is to be seen at the trial when the doctor appears in the witness box. In Abdul Hayee and others v. State 1996 SCMR page 555 it was observed by the august Supreme Court in the following terms: "After hearing the learned counsel and reading the record, we have not been persuaded to allow bail to the petitioners on the alleged ground of conflict in the ocular account with the medical evidence. After recording evidence, it is for the Trial Court to give weight to the prosecution evidence in its own wisdom. Time and again, it has been said by this Court that at bail stage, evidence of the parties could not be assessed/tested in depth. The purpose is to avoid expression of opinion of way or the other on merits of the case. The petitioners have been mentioned in the FIR., with clear roles in commission of the crime. These allegations would surely be sufficient on face of them to demonstrate that this was not a case of further inquiry within the meaning of section 497, Cr.P.C. For admission of the petitioners to bail. They are the accused in a case of capital charge. The learned High Court had, therefore, rightly cancelled the bail which was allowed to the petitioners by the Trial Court."
' In other judgment 'reported in 1997 (Criminal Law judgment page 132 (Mian Khurshid Ahmed v.
Muhammad Azeem) a learned Single Judge of the Peshawar High Court has observed as under by making reference to 1982 SCMR 207: "Contradictory version in medical evidence and ocular account of occurrence cannot be appraised in depth at bail stage":
11. As much stress has been placed on the argument that the case has been sent up for trial and as such following the case-law as laid down by the august Supreme Court of Pakistan this Court should not interfere with the discretionary order wherein bail has been allowed to the accused- respondent. I will refer to a judgment delivered by Justice Muhammad Bashir Jehangiri as Judge of this Court reported in Muhammad Afsar v. Khial Mast PLD 1992 Pesh. Page 158 and the observations of the Honourable Judge are given below: "I am aware of the practice of the Superior Courts of Pakistan that when a murder case is fixed for hearing' ordinarily' bail applications are not decided on merits and the matter is ' often' left to the discretion of the trial Judge. The use of the words ' ordinarily' and 'often' in the aforesaid practice receiving judicial recognition in Muhammad Ismail v. Muhammad Rafique and another PLD 1989 Supreme Court 585 is not without significance. The practice alluded to above is thus, not of universal application. It may at times as departed from if there are ' extraordinary circumstances' and the matter in exceptional case' may not be left to the trial Judge. In the authority of Muhammad Ismail cited above, the distinguishing features were that in the case of accused- respondent therein the High Court had after tentative assessment of material found that two essential conditions contained in section 497(2), Cr.P.C., were satisfied and the trial was to shortly commence; noticeable abscondance was not attributed to the accused respondent therein and; that in those circumstances subsection (2) of section 497, Cr.P.C. Would have operation notwithstanding the aforesaid practice."
11. Section 497, subsection (2) Cr.P.C., which empowers the Court to allow bail to a person accused in a case which falls within the prohibitory clause of section ibid is to be read not in isolation but alongwith subsection (5) of the section.
12. Where on the face of record the discretionary order of the lower Court is not maintainable and is based on conjecture, misreading of material placed before it or where a jurisdiction has been exercised in a manner which tantamounts to deep analysis of the merits of the prosecution case notwithstanding the fact that only one point was so considered, this Court can/will interfere in the interest of justice needless to say, without causing any prejudice to the cause of either side.
13. In the instant case as observed earlier, single accused has been nominated for causing the death of Muhammad Saddique deceased, two empties of .30 bore have been recovered from the spot will support the allegation as contained in the First Information Report; there is no serious enmity in existence; mere probability of the time of death being other than the one which is given in the F.I.R., will not entitle the accused to bail, for offence punishable with death or life imprisonment.
' For the reasons stated above the order of learned Sessions Judge, Abbottabad is set aside the accused-respondent who is present in Court his bail C stands cancelled and is taken into custody.
' The observations on merits, if any, shall not have any bearing and affect when the learned trial Judge decides the case on the conclusion of the trial on the basis of evidence, led before him.
Bail cancelled.