MOHIB ULLAH HANIF vs THE STATE and 3 others

ORDER

' TARIQ SHAMIM, J.---Through this order, I propose to dispose of Criminal Miscellaneous Nos.

2192:CB/2007 and 4396-CB of 2007 as both relate to the same F.I.R.

2. The petitioner who is the complainant of case F.I.R. No,733 of 2006 dated 19-11-2006 for offences under sections Ss.337-A(i), 337-A(iii), 337-L(2), 353, 354, 186, 147 & 148, P.P.C. Registered at Police Station Ichhra, Lahore, has filed Criminal Miscellaneous No,2192-CB of 2007 seeking cancellation of pre-arrest bail allowed to respondents Nos.2 to 4 and Criminal Miscellaneous No,4396-CB of 2007 seeking cancellation of post-arrest bail allowed to respondent No,2 by the learned Additional Sessions Judge vide order dated 3-3-2007 and 31-3-2007 respectively.

3. The brief facts of the case are that burqa clad wife of the complainant along with her daughter went to the shop of accused Muhammad Faisal for purchasing some items. Accused Muhammad Faisal blamed her for concealing eggs under her burqa and asked her for a search. Despite her resistance, the said accused forcibly conducted her personal search. This act of the shopkeeper infuriated her and she, while leaving the shopping bags in the shop, went to her house and narrated the entire incident to her son, namely, Khalil, who went to, the shop and questioned accused Faisal about the incidence, upon which Faisal became furious and called other accused who jointly injured. Khalil with kick and fist blows. Subsequently, the complainant returned to the scene who was also injured by the accused.

4. The petitioner present in person has argued that the learned Additional Sessions Judge while, extending the concession of bail to the said respondents has failed to consider the injuries suffered by the complainant and his son; that the learned Additional Sessions Judge has also not taken into consideration the fact that all the accused named in the F.I.R. Had been ascribed role of causing injuries to the complainant and his son and that the learned Additional Sessions Judge had erroneously held that the question regarding vicarious liability of the accused could be determined that the trial after recording of evidence.

5. The learned Deputy Prosecutor General ,has adopted the arguments advanced by the petitioner.

6. Conversely, the learned counsel for the respondents has, contended that the order of the learned additional Sessions Judge, whereby .The concession of pre-arrest and post-arrest bail has been extended to the respondents is in consonance with law and the evidence available on the record; that the occurrence took place in the shop of Muhammad Faisal, the respondent which shows that the complainant side was responsible for the occurrence; that the injury which attracts the offence falling under section 337-A(iii), P.P.C. Has not been specifically ascribed to any of the accused; that the other offences do not fall within the ambit of the prohibitory clause of section 497, Cr.P.C. And that challan in the case has been submitted on 23-3-2007 and the trial is in progress, therefore, at this stage it would not be appropriate to cancel the bail allowed to the respondents.

7. I have heard the petitioner, learned counsel for the respondents as well as the learned Deputy Prosecutor General for the State and gone through the record.

8. The occurrence in this case took place in the shop of respondent Muhammad Faisal in which the petitioner's son sustained injuries. The contents of the F.I.R. Reveal that only allegations of general nature have been levelled by the complainant against all the accused and no specific injury has been ascribed to any one of them. Two of the injuries suffered by the complainant and his son attract the provisions of section 337-A(iii), P.P.C. But since the same have not been specifically attributed to any of the accused, therefore, the respondents prima facie cannot be saddled with the responsibility of causing the same. It need not be reiterated that considerations for cancellation of bail are different from considerations for grant of bail. Although subsection (1) of section 497, Cr.P.C. Prohibits grant of bail for offences punishable with death, imprisonment for life or imprisonment for ten years or more. However, section 497(5), Cr.P.C. Does not make it obligatory on the courts to cancel bail even when the offence is punishable with death, imprisonment for life or imprisonment for ten years or more. The considerations which prevailed with the learned Additional Sessions Judge in extending bail to the respondents-accused are based on cogent and logical reasons and cannot by any stretch of imagination be termed as arbitrary, fanciful or perverse so as to warrant interference by this Court. Reference is made to the case of Miandad v.

The State 1992 SCMR 1289.

9.Adverting to the question of vicarious liability of the accused, contrary to what has been argued by the petitioner, the question thereof can be gone into by the trial court at the time of trial as it calls for further probe into the matter. Reference is made to the case of Ghulam Qadir alias Mama v. The State 2004 M LD 33. Challan in the case has been submitted in the trial Court after finalization of investigation and according to the learned counsel representing the respondents, the trial proceedings are in progress. In such circumstance, as has been held by the Hon'ble Supreme Court of Pakistan in the case of Masood v. The State 1989 SCM R 2063, cancellation of bail of an accused is not warranted.

10. In view of what has been mentioned hereinabove, it is not a fit case for cancellation of bail as strong and exceptional grounds are needed to get it cancelled which are not available. Since the trial proceedings are in progress, therefore, I would not like to further dilate upon the merits of the case as it might prejudice the case of either of the parties. The trial court is, however, directed to conclude the, trial without unnecessarily loss of time.

11, For what has been discussed above, these petitions being without any merit are accordingly dismissed.