The brief facts out of which the present petition arises are that respondent No.1 is involved in a case F.I.R. No.276 of 2002 which was registered on 11-8-2002 under sections 324/148/149/337, P.P.C at Police Station Lalamusa, District Gujrat. Respondent No. 1 filed bail after arrest before the learned Additional Sessions Judge, Kharian, who accepted the same vide order dated 19-11-2002. The petitioner being aggrieved filed this application for cancellation of the bail granted to respondent No. 1 by the learned Additional Sessions Judge, Kharian.
2. The learned counsel of the petitioner submits that the learned Additional Sessions Judge granted the bail without proper appreciation of the material produced before him by the complainant side.
He further submits that the order of learned Additional Sessions Judge is contradictory in nature.
He further submits that the F.I.R. Was lodged promptly. Respondent No. 1 was named in the F.I.R.
With specific role and specific injury. The Investigating Agency found respondent No.1 as guilty.
Pump Action 12 bore shot gun, weapon of offence, was also recovered from respondent No. 1 during the investigation. Five crime empties were also found from the place of occurrence. The complainant side was injured by the fire-arm used by the respondent at the time of commission of offence. Respondent No. 1 had intentionally made a murderous assault upon the complainant party. Resultantly four persons of the complainant party were seriously injured. He further submits that in three investigations, respondent No.1 was found guilty. Subsequently, in fourth investigation of the accused persons mentioned in the aforesaid F.I.R. Were found guilty including respondent No.1 and show---cause notice has also been issued to the Investigating Officer by the District Police Officer, Gujrat. He further submits that all the injuries are in front side of the complainant party. In case the complainant party is aggressor then injuries would have been caused to them otherwise. The Tehsil Municipal Administration, Kharian, filed a suit against the petitioner and others which was dismissed by the Civil Court.
3. The learned counsel of respondent No. 1 submits that respondent No. 1 did not file any suit against the petitioner. Tehsil Municipal Administration, Kharian had filed a suit against the petitioner and others. The said suit was dismissed. The Tehsil Municipal Administration, Kharian had filed appeal before the higher forum which had already been admitted for regular hearing and the Appellate Court had granted status quo. The complainant's side are trespassers and wanted to construct the building over the land in question belonged to Tehsil Municipal Administration, Kharian. Respondent No.1 stopped them and incident took place. Respondent No.1 had fired with his weapon in self-defence. He further submits that respondent No. 1 did not misuse the concession of bail till date. Respondent No.1 is appearing before the trial Court. He further submits that the learned Additional Sessions Judge granted bail in favour of the respondent vide order dated 19-11- 2002 whereas the petitioner filed this petition before this Court after three months in the month of February, 2003. He further submits that the offence committed by respondent No.1 as is evident from the Annexure 'A' attached with the petition in Column No.5 under sections 324, 148/149/337F, P.P.C, whereas the petitioner mala fide did not mention the entries it Column No.5 in better copy attached by the petitioner with this petition. He further submits that no injury is inflicted on the complainant side on any vital part, therefore there is no mens rea on the part of respondent No. 1 to murder any member of the complainant party. He further urges that the bail granting order of learned Additional Sessions Judge is in accordance with the law laid down by the superior Courts.
In support of his contentions, he relied upon the following cases:-- Rana Muhammad Safdar v. Gulzar Ali 1999 PCr. LJ 1.
Tariq Bashir v. The State PLD 1995 SC 34.
Muhammad Sadiq v. Muhammad Nisar and 7 others 2003 PCr.LJ 20.
Raja Rafaqat Usmani v. Umar Faro Abasi 2002 PCr.LJ 1262.
Hakim Mumtaz Ahmed v. The PLD 2002 SC 590.
He further submits that the F.I.R. Was lodges on 11-8-2002. The Investigating Agency did not submit the challan till date before the competent Court, therefore, benefit of doubt be given to respondent No. 1. Respondent No. 1 did not misuse the bail granted to him. Respondent No. 1 did not threaten the complainant party and he is appearing before the trial Court on each and every date of hearing.
4. The learned State Counsel supported the case of the petitioner. The learned counsel for the petitioner in rebuttal, submits that the accused are found guilty in the latest investigation on 18-1- 2003.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is settled principle of law that principles of grant of bail and cancellation of bail are entirely different as per law laid down by the Honourable Supreme Court in Mian Dad v. The State 1992 SCM R 1286. In the aforesaid judgment of the Honourable Supreme Court, it is held that the discretion is left to the Court under section 497(5), Cr.P.C. Which is pari materia with the principles which apply to the setting aside of the orders of acquittal. The learned counsel of the petitioner did not bring the case in the parameter prescribed by the Honourable Supreme Court in the aforesaid judgment. It is admitted fact that the petitioner did not bring on record any material to show that respondent No.1 has misused the concession of bail. It is also settled principle of law that cancellation of bail application to the High Court before moving the Court, which granted the bail, is not competent. In arriving to this conclusion, I am fortified by the law laid down in Muhammad Nasir Butt's case NLR 1991 Criminal 46. The petitioner's counsel wants cancellation of bail application on the basis of the findings of the subsequent investigation dated 18-1-2003, therefore, petition is not maintainable before this Court in view of the law laid down by the Honourable Supreme Court in Mehr Ghulam Nabi v. Muhammad Shafiq 1979 SCM R 479. From the material it is not possible to come to a conclusion that respondent No. 1 shall be awarded maximum sentence, therefore, bail granted to respondent No. 1 cannot be cancelled. In arriving to this conclusion, I am fortified by the following judgments:-- The State PLD 1972 SC 277.
Amir v. The State 1973 PCr.LJ 205.
Muhammad Altaf v. Nazir Ahmad and another PLD 1975 Lahore 568.
The learned Additional Sessions Judge has exercised his discretion in accordance with taw and has not exercised discretion I improperly, therefore, this petition is liable to be dismissed. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in Maz Wali's case PLJ 1978 SC 204. It is also settled principle of law that strong and exceptional grounds are needed for cancellation of bail when bail is granted by a competent Court as per principle laid down by this Court in Bashir Ahmad v. Mirza Muhammad Yaqub 1991 M LD 579.
7. In view of what has been discussed above, I do not find any force in this petition. The same is dismissed. However, the learned trial Court shall decide the case at the commencement of the trial after recording the evidence strictly in accordance with law without being influenced by the aforesaid observations of this Court or with the observations of the learned Additional Sessions Judge, in order dated 19-11-2002.