' Petitioner Muhammad Riaz who stood charged alongwith his brother Bashir under section 302/34, P.P.C. For the murder of Muhammad Ayub in a case registered vide F.I.R. No,80, dated 2-11-1999 lodged by Abdul Khaliq son of the deceased has approached this Court for the grant of bail after being cancelled by the learned Additional Sessions Judge.
2. According to F.I.R. Lodged by Abdul Khaliq, complainant, brother-in-law of the petitioner, that one Mst. Sima Bibi sister of the petitioner was found missing from her house. The petitioner and his brother Bashir co-accused suspected Abdul Malik, son of the deceased and brother of the complainant, for the abduction of their sister. The petitioner and his brother came to the house of the complainant and they were enquiring about their sister and in its efforts by the complainant party to console them they got infuriated and had come forward to beat/kill Roshan Jan, their other sister who is also wife of the complainant but deceased Muhammad Ayub intervened on which Muhammad Riaz petitioner caught hold of him (deceased) and Bashir gave him chhurri blow as a result of which he sustained injuries and died on the spot.
3. The petitioner after his arrest filed an application for bail before the Magistrate which was accepted and he was granted bail. However, on application filed by the complainant for the cancellation of his bail before the Additional Sessions Judge, the same was cancelled and he was taken into custody and now he has come to this Court for his release on bail.
4. The learned counsel for the petitioner has contended that after the grant of bail by the Magistrate the complainant has moved an application for cancellation of bail after about a month.
He has further contended that there is contradiction between the version of, the complainant and the medical evidence according to F.I.R. The deceased was hit in the abdomen while according to the medical evidence he received injury on his back. He has also submitted that as only the rolt of catching hold of the deceased has been attributed to the petitioner and his case is that of further inquiry and he is entitled to the grant of bail. He place reliance on Abdullah v. The State (1986 PCr.LJ 2173) and Government of Sindh v. Raeesa Farooq and 5 others (1994 SCMR 1283), the later for tentative assessm ent of evidence at bail stage.
5. The learned Assistant Advocate-General as well as the learned counsel for the complainant while opposing the application has contended that there is no contradiction between the version of the complainant and the medical evidence as the word "" has been written instead of " and which in view of the overwhelming evidence on record would be of no significance particularly at the stage of bail and the effect of such alleged contradiction will be seen at the time of the trial. He has also submitted that it is not in each and every case that the petitioner charged for catching hold of the deceased would make him entitled to bail but his liability will be determined in the given circumstances of the case. He has placed reliance on a number of authorities including "Muhammad Younas and Fitrat Hussain v. The State (PLD 1991 Pesh. 91), "Mst. Barkat Bibi v. Gulzar and another" (1979 SCMR 65), "Muhammad Rashid v. The State" (1979 SCMR 92) and "Hakim Ali v.
The State" (1979 SCMR 114).
6. The petitioner has been charged for catching hold of the deceased by the complainant who is related to him being his brother-in-law ((and without previous enmity), whose version is having the support of evidence i,e, the statement of the persons of the same Mohallah who reached the spot and also of the circumstantial evidence. The submission of the learned counsel for the petitioner that the tentative assessm ent of the evidence at the bail stage is permissible is correct but his other contention that on the basis of such an assessment the petitioner is entitled to bail is not correct. The bail can only be granted when the Court arrives' at a conclusion that there are no reasonable grounds for believing that the accused is guilty of the offence but there is a scope of further inquiry but in the instant case in view of the evidence brought on record it would be very difficult to arrive at such a conclusion with regard to the absence of reasonable grounds qua the guilt of the accused-petitioner and particularly in view of the judgments of the superior Court cited above and the circumstances of the present case.
7. After arriving at such a conclusion then his another submission that once bail has been granted it ought not to have been cancelled would also not be sustainable as the bail can be cancelled when the order is perverse, fanciful or is not in consonance with the law laid down by the superior Courts, which in the instant case has not been adhered to by Magistrate hence the learned Additional Session Judge was justified in cancelling the bail of the accused-petitioner.
8. Resultantly this application for the grant of bail to the petitioner is dismissed.