MUHAMMAD BOOTA Versus ABDUL HAMID

ORDER

1. By this order I proposed to dispose of Criminal Miscellaneous Application, No.25 of 1993 which has been filed by the complainant Muhammad Boota for cancellation of bail granted to the respondents by the learned 1st Additional Sessions Judge, Tharparkur at Mirpurkhas in Sessions Case No.133/92, Crime No.42 of 1992 registered at Police Station Kot Ghulam Muhammad District Mirpurkhas under sections 302, 326, 325, 147, 148 and 149, P.P.C.

2. The brief facts of the case are that on 30-6-1992 at about 11-30 a.m. respondents alongwith two absconders accused Ahsanullah and Ahsan-ul-Haq alongwith their family folk armed with hatchet came to the house of the complainant and attacked the complainant/applicant his son Ghulam Mustafa, his relative Mushtaque and other members of the family of the complainant in village Nihalo-ji-Hatti, Taluka Kot Ghulam Muhammad According to the case of the prosecution, respondents Muhammad Akmal and Allah Ditta inflicted hatchet blows on the head and other parts of the body of Ghulam Mustafa and murdered him. The complainant, Mushtaque and other members of the family of the complainant were also given hatchet blows by the other respondents as a result whereof the complainant and aforesaid other persons suffered grievous injuries. Ghulam Mustafa was taken to Taluka Hospital whereafter F.I.R. was lodged by the complainant at Police Station Kot Ghulam Muhammad at about 2-30 p.m. On account of precarious condition of Ghulam Muhammad he was rushed to L.M.C. Hospital Hyderabad where he succumbed to his injuries. After usual investigation police submitted challan against the respondents and others. An application for grant of bail was moved by the respondent before the trial Court which was allowed and the respondents vide order dated 16-11-1992 were enlarged on bail by the trial Court. It is this order which has been challenged by the applicant/complainant by way of this criminal miscellaneous application and cancellation of bail of the respondents has been sought.

3. I have heard Mr. Abdul Jabbar learned counsel for the applicant, Mr. Syed Madad Ali Shah learned counsel for the respondents as well as Mr. Agha Khuda Bux Khan, Advocate for the State, who has appeared on Court notice.

4. It has been urged by the learned counsel for the applicant/complainant that bail to the respondents has been granted by the trial Court on the ground that the case of the respondents requires further enquiry. Contentions of the learned counsel for the applicant is that such ground for grant of bail to an accused can only be taken into consideration by Court after examining as to whether reasonable grounds for grant of bail exists. Further contention of the learned counsel for the applicant is that learned trial Court while granting bail to the respondents did not apply its mind to the facts of the case and it has been, in the circumstances, urged by the learned counsel for the applicant that the order of grant of bail passed by the trial Court is not sustainable in law. The learned counsel for the applicant in support of his contention has relied upon two judgments reported in 1992 SCMR page 501 and PLD 1984 SC page 56.

5. On the other hand, Mr. Syed Madad Ali Shah learned counsel for the respondents as contended that counter-cases in respect of one and the same incident have been registered by the complainant and accused party with the police and admittedly F.I.R. No.41 of 1992 lodged by respondent No. 1 is earlier in time. There are injuries sustained by persons of both the sides and as to who is the aggressor can only be determined at the trial. The case against the respondents has already set down for trial and at this stage it would be improper to cancel bail granted to the respondents. Further contentions of the learned counsel for the respondents is that the respondents were granted bail by the learned trial Court on 16-11-1992 and admittedly the respondents have not misused the concession of bail. The learned counsel for the respondents has relied upon a number of reported judgments in support of his contentions including the following cases:--

(1) 1996 SCMR 1845; (2) NLR 1997 Criminal 246; (3) 1997 SCMR 251; (4) 1992 SCMR 1418; (5) 1998 SCMR 1129; (6) PLD 1989 SC 347, (7) PLD 1989 SC 585 and (8) PLD 1996 SC 241.

6. Mr. Agha Khuda Bux Khan learned counsel for the State has supported the contentions raised by the learned counsel for the respondents and has stated that the order of grant of bail passed by the trial Court is well-reasoned, and does not call for any interference by this Court.

7. I have carefully, considered the arguments advanced by the learned counsel for the parties and have perused the record. There is no force in the contentions of learned counsel for the, applicant that the respondents have been admitted to bail on the ground that the case of the respondents is that of further, enquiry. A perusal of the order by which the bail was granted to the respondents reveals that the factor which weighed with the learned trial Court for the grant of bail to the respondents is that there are counter-versions of the incident and as to who is the aggressor can only be determined at the trial. Furthermore, consideration in grant, of bail to the accused are altogether different than in a case where cancellation of bail is sought by the complainant. In my opinion unless exceptionally strong grounds such as abuse/misuse of concession of bail exist for cancellation of bail the High Court does not interfere with the order of grant of bail passed by the trial Court. In the instant case the respondents are availing the concession of bail right from November, 1992 and there is no allegation against the respondents in respect of misuse of concession of bail. Furthermore, there is strong force in the contentions of learned counsel for the respondents that there being counter-versions of the incident, the question as to which of the two parties is aggressor can only be considered after evidence is recorded and as such the respondents have been rightly enlarged on bail by the trial Court.

8. The case-law cited by the learned counsel for the applicant is distinguishable inasmuch as observation of the Honourable Court in the two cited cases have been made in a case for grant of bail whereas in the instant case I am dealing with the matter where cancellation of bail has been sought by the applicant. The case-law cited by the learned counsel for the respondents supports the case of the respondents for non -cancellation of bail to the hilt.

9. In view of the above discussion I have no hesitation to hold that the application for cancellation of bail filed by the complainant Muhammad Boota is without substance and as such the same is dismissed.

10. Above are my reasons for the short order of rejection of this criminal miscellaneous application which was passed by me on 3rd March, 1998.

H.B.T./M-74/K Application dismissed.