MURTAZA vs THE STATE

ORDER

' IJAZ AHMAD CHAUDHRY, J.---Through this application under section 497(5), Cr.P.C., the petitioner seeks cancellation of bail granted to respondent No,1 by the learned Additional Sessions Judge, Jhang vide order dated 6-9-2005, in case F.I.R. No,276, dated 2-5-2005, registered under sections 324/336/337A(i)/337-F(iii)/34, P.P.C. And subsequently section 336, P.P.C. Was also added at Police Station, Kotwali District Jhang at the instance of the petitioner.

2. The story of the prosecution case as gleaned out from the contents of the F.I.R. Is that on 2-5- 2005 at about 6-00 a.m. Zafar Abbas cousin of the complainant was coming to the cattle shed for milking, the accused persons came in front of him and Muhammad Khalil respondent No,1 raised Lalkara to teach him a lesson with regard to the house of the co-accused Sajjad and respondent No,1 inflicted dagger blow on Zafar Abbas which hit him near the ear and the neck and when Zafar Abbas tried to stop respondent No,1, he gave second dagger blow which hit him on his left arm. Co- accused Sajjad inflicted butt of pistol blow on Zafar Abbas which hit him on his left cheek and gave second blow with butt of pistol which hit on his left cheek and chin, and he fell down due to obtaining severe injuries. On hue and cry, the complainant/petitioner along with witnesses came on the spot and the accused fled away after threatening of murder.

3. Respondent No,1 was arrested on 17-5-2005 and he was sent to judicial lockup on 20-5-2005.

Thereafter an application for bail before arrest was moved by him which was dismissed by the learned Judicial Magistrate but the learned Additional Sessions Judge had granted him bail through the order dated 6-9-2005.

4. The learned counsel for the petitioner contends that respondent No,1 is named in the F.I.R., he had repeated the blows on the vital part of the injured P.W. Zafar Abbas and the injury falls within the purview of section 336, P.P.C. Which falls within the prohibitory clause of section 497, Cr.P.C. It is further contended that the respondent No,1 was not entitled to the grant of bail on merits rather the same has been granted on vague grounds and respondent No,1 is misusing the concession of bail as he had fired at the witnesses whereupon an application was moved for registration of the case to the police but on refusal by the police an application was moved before the learned Justice of the Peace which is pending adjudication.

5. On the other hand learned counsel for the respondent No,1 opposes this petition on the ground that injury on the left arm of the injured P.W. Falls within the purview of sections 337-A(i) and 337- F(iii), P.P.C., which is punishable with three years' R.I. And injury No,1, which had been declared as falling within the purview of section 336, P.P.C. By the doctor on the basis of the report that one nerve of the injured has lost "Salahiat". It is next contended that criteria for cancellation of bail is entirely different than grant of bail and bail cannot be withheld as a punishment. It is also contended that allegation of misuse of concession of bail is false as three inquiries have been conducted on the direction of the Justice of the Peace and the police has given the definite opinion that the allegations are false whereupon the application moved by the petitioner was dismissed by the learned Justice of the Peace.

6. I have heard the learned counsel for the parties and perused the record with due care and caution.

7. Though the respondent No,1 had repeated the blows with dagger on the injured P.W. Namely Zafar Abbas but he was granted bail by the learned Additional Sessions Judge, Jhang vide order dated 6-9-2005 on various grounds. I have also perused that Injury No,1 on the person of Zafar Abbas has been declared as falling within the purview of section 336, P.P.C. Only on the basis of damage of one nerve and not due to the lost of "Salahiat" of ear. Whether section 336; P.P.C. Is made out or not is the question of further inquiry. The other injury attributed to respondent No,1 falls within the purview of section 337-F(iii), P.P.C. Which is punishable with three year's imprisonment.

The respondent No,1 was arrested on 17-5-2005 and was granted bail on 6-9-2005 and the criteria for cancellation of bail is entirely different than grant of bail and bail cannot be withheld as a punishment. Except the ground that he has misused the concession of bail on valid ground has been urged for cancellation of bail of respondent No, 1 . As far as contention of misuse of concession of bail is concerned, the petitioner moved an Application to the Justice of the Peace that ineffective firing has been made by respondent No,1 after his release from jail three inquiries were conducted on the direction of the learned Justice of the Peace and the allegations according to the police were found false as no such incident had taken place. The said application moved by the petitioner was dismissed according to the learned counsel for respondent No,1 which is not controverted by the learned counsel for the petitioner. Moreover, a tendency has been developed in the society for making of grounds for cancellation of bail by levelling such type of allegation of misuse of concession of bail which cannot be accepted without any cogent reasons. Even otherwise, challan has been submitted in the Court and the august Supreme Court of Pakistan has held in number of cases that after submission of report under section 173, Cr.P.C. Ordinary bail should not be cancelled as it may not prejudice the case of the accused or the other party.

8. In view of the discussion made above, this petition having no merits is dismissed.