EHSAN AKBAR vs THE STATE and 2 others

ABDUL HAMEED DOGAR, J.--- Petitioner seeks leave to appeal against the order, dated 28-4-2006 of a learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Criminal Miscellaneous No,320/B of 2006 filed by respondent No,2 Qadeer Ahmad and respondent No,3 Abdul Ghaffar was allowed and they were granted bail in a case registered vide F.I.R. No,482 dated 18-12-2005 at Police Station Shahzad Town, Islamabad for offences under sections 302/34 and 109, P.P.C. Read with sections 6 and 7 of Anti-Terrorism Act, 1997.

2. Precisely stating facts of the case according to the complainant/petitioner are that on the night between 17/18-12-2005 at about 3-15 a.m. He heard noise of abuses from roof top and his son Zamir went there. Thereafter he, his son Shafique, wife of Zamir and son-in-law of Shabbir saw Qadeer Ahmad respondent No,2 armed with kalashnikov and respondent No,3 Abdul Ghaffar armed with Chhuri along with other co-accused namely Zahoor and Naseer who were also armed with deadly weapons. Respondent No,3 Abdul Ghaffar raised Lalkara that Zameer would not be let alive. Whereupon respondent No,2 Qadeer Ahmad and other co-accused started firing with their respective weapons which hit on the different parts of Zameer. When he tried to rise from the ground, respondent Abdul Ghaffar lave him a Chhuri blow on his neck who succumbed to the injuries at the spot.

3. We have heard Dr. Babar Awan, learned Advocate Supreme Court for petitioner/complainant, Mr. Khadim Hussain Qaiser, Additional Advocate-General, Punjab for the State and Sardar Muhammad Ishaque, learned senior Advocate Supreme Court for respondents Nos.2 and 3 at length and have gone through the record and the proceedings of the case in minute particulars.

4. Learned counsel for the petitioner vehemently contended that learned High Court while granting bail to respondents Nos.2 and 3 had not appreciated the facts of the case in depth and the same is contrary to settled principles of law governing the grant of bail under section 497(1), Cr.P.C.

According to him, specific roles have been attributed to both respondents in commission of offence. Thus, the finding of learned High Court that there is a case of further inquiry is not sustainable in law. It is also settled principle of law that opinion of Investigating Officer is not binding on the Courts. He further contended since charge has been framed and trial is to commence as such grant of bail at this stage will prejudice the case of the petitioner. In support of his contentions he referred to the cases of Nazir Ahmed v. Muhammad Ismail and another 2004 SCM R 1160 and Raja Muhammad Irshad v. Muhammad Bashir Goraya 2006 SCM R 1292.

5. Learned Additional Advocate-General Punjab supported the counsel for petitioner and added that in given facts and circumstances of the case, respondents Nos.2 and 3 were not entitled for grant of bail.

6. On the other hand learned counsel for respondents contended that case of respondent No,3.

Abdul Ghaffar is of further inquiry as according to F.I.R. He was armed with Chhuri and caused Chhuri blow on the neck of deceased but the same is not corroborated by post-mortem report wherein not even a single injury caused by sharp-edged weapon has been shown. As regards to respondent No,2 Qadeer Ahmed he contended that his case is also of further inquiry as he has been declared innocent by police during investigation. He further contended that there is consistent practice of this Court that once bail is granted to a person, and then it is not to be cancelled without any cogent reasons.

7. It is well-settled principle of law that this Court ordinarily does not interfere with the order of the High Court relating to bail particularly in case of murder when the trial is to commence so as to avoid A discussion and remarks on the merits of the case. But it is also fact that for cancellation of bail, strong and exceptional grounds are required. It is to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice.

Considering the case of respondents for grant of bail on the above touchstone, we are of the considered opinion that the learned High Court was not at all justified in extending benefit of grant of bail to respondent No,2 Qadeer Ahmed. He was not only attributed specific role of firing at the deceased but his participation is corroborated by presence of fire-arm injuries on the person of deceased. The main ground which weighed with the learned High Court for grant of bail to respondent No,2 Abdul Qadeer was that the recovery of kalashnikov was not made from him is not at all a valid ground. Accordingly, his case is not of further inquiry as contemplated under section 497(2), Cr.P.C. And the grant of bail has prejudiced the case of complainant/petitioner as it amounts to deeper appreciation of evidence. It is well-settled principle of law that while granting bail only tentative assessm ent of evidence is to be made whereas deeper appreciation of evidence is to be avoided; this principle has been ignored by learned High Court while granting bail to respondent No,2. Reference can be made to the case of Nazir Ahmed (supra) wherein this Court cancelled the bail allowed to accused by High Court on the ground that specific role of firing at deceased was attributed to accused. In the case of Raja Muhammad Irshad referred (supra) bail granted to respondent was cancelled though he was charged for the offence under section 109, P.P.C. In murder case and it was held that while considering the request of the accused on bail, a deeper appreciation of evidence is not called for and the Court seized of the matter in terms of section 497(1), Cr.P.C. Is required to make tentative assessment of evidence available on record.

8. As far as the case of respondent No,3 Abdul Ghaffar is concerned, there is a conflict between the prosecution version and the medical evidence. As per prosecution case, he gave Chhuri blow on the neck of the deceased whereas according to MLR as well as the diagram all the injuries were caused with fire-arm weapon. As such his case is on different footing.

9. For the foregoing reasons impugned judgment dated 28-4-2006 to the extent of respondent No,2 Qadeer Ahmed is set aside and the concession of bail granted to him is recalled. He is directed to surrender before the learned trial Court. The petition to his extent is converted into appeal and allowed. As far as respondent No,3 Abdul Ghaffar is concerned, learned counsel has failed to make out a case for cancellation of his bail, as such the petition to his extent is dismissed.