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Criminal Miscellaneous No.1898 of 1986, decided on 15th February, 1987.

---S.497(5)--Penal Code (XLV of 1860), S.307--Bail, cancellation of- Accused allegedly firing three shots at complainant, one of them hitting on arm--Injury declared simple--Eye-witness named in F.I. R. , not supporting prosecution--Allegation of extending threats not supported by any affidavit of any witness--Accused, held, could not be deprived of his liberty without any tangible evidence of misusing liberty to the prejudice of due administration of justice Cancellation of bail refused in circumstances.

1977 P Cr. L J 277 ref.

Sher All Rizvi for Petitioner.

A.A.Muhammadally, Addl. A.-G. for the State.

This is an application under section 497(5), Cr.P.C. for cancellation of bail granted to the respondent by learned Sessions Judge, Karachi East, vide order dated 21-10-1986. The facts giving rise to the present application are that on 10-8-1986, complainant/ applicant Mian Sher Zada Indged a report at Police Station Landhi, alleging therein that he is residing in Monsera Colony, Landhi , Karachi, alongwith his parents, and is working at a Loom Machine. That he was present at his house when there was a commotion and, therefore, he came out of the house and found that respondent No.1 was beating Shad Hussain brother of the complainant. The complainant separated the parties on which Dost Muhammad started beating him and gave him fists and kicks. In the meanwhile, P.Ws. Gul Muhammad and Mukhtiar Hussain came there, intervened and separated the parties. It was further alleged that respondent Dost Muhammad went away to his house and at about 14.30 hrs brought revolver from his house and fired at the complainant, which missed. He fired second shot but the complainant moved to the other side, therefore, it also missed. The respondent fired third shot at the complainant which hit on his left arm and he fell down. The respondent then ran away from the wardat. P.Ws. Gul Muhammad, Mukhtiar, and many others witnessed the incident. The complainant then went to the Police Station and lodged his report. The police after recording the F.I.R. arrested the respondent No. 1. A bail application was moved on behalf of the respondent before the learned Sessions Judge, Karachi, East, who granted interim bail to the respondent. That on 9-9-1986, the Complainant /applicant filed an application for cancellation of interim bail granted to the respondent which was supported by his own affidavit. The notice of this application was issued to the respondent No1, who filed objections as well as affidavit of P.W. Gul Muhammadan eye-witness, controverting the allegations made in the cancellation application and supporting affidavit of the complainant. After hearing the learned Advocates appearing on behalf of the parties, and the DPP, the learned Judge confirmed the bail of the respondent on 21-10-1986. The complainant /applicant has, therefore, moved this application for cancellation of bail granted to the respondent.

I have heard Mr. Sher Ali Rizvi, learned counsel for the applicant, Mr. Ali Muhammad Memon, learned counsel for the respondent No.l and Mr. A.A. Muhammad Ali learned Additional Advocate-General for the State.

The contention of Mr. Sher Ali is that respondent No.l had fired at the applicant with intention to kill and he was actually hit by a bullet and, therefore, the offence under section 307 P.P.C. was committed. He has further contended that the complainant had filed affidavit before the learned Sessions Judge that the respondent had issued threats to the complainant and this affidavit was not rebutted by the respondent and, therefore, learned Sessions Judge has erred in confirming the bail of the respondent.

On the other hand, Mr. Ali Muhammad Memon, learned counsel for the respondent No.l contended that injury was not on the vital part of the body and was simple in nature. That the respondent No.l had filed objections and had also filed an affidavit of P.W. Gul Muhammad an eye-witness before the learned Sessions Judge and on facts no case under section 307 was made out. He has further contended that the prosecution story was false and that complainant and his relations had attacked the respondent No.l and looted the shop of the respondent, therefore, he fired to save his life. Under the circumstances the respondent had right of private defence.

Mr. A.A. Muhammad Ali, learned Additional Advocate-General appearing for the State does not support the above application. According to him, since the injuries were simple in nature and were not on the vital part of the body, and defence story seas supported by P. W. Gul Muhammad who was an important eye-witness, therefore, the learned Sessions Judge rightly granted bail to the respondent No.1.

I have considered the contentions of the learned counsel and have also perused the police papers including medical certificate. Final medical certificate dated 10-8-1986 issued by Casualty Medical Officer, Jinnah Post-Graduate Medical Centre, Karachi, shows that the injury was on arm, and was simple in nature. Even the injured/ applicant was not admitted as Indoor Patient. The applicant himself has filed certified copy of objection filed by the respondent on 21-9-1986 and affidavit of P. W. Gul Muhammad who is an eye-witness according to F.I.R. The perusal of affidavit of Gul Muhammad shows that on the day of incident he was present at the shop of respondent Dost Muhammad at 2.00 p.m. when Mian Sherzada (complainant/ applicant), Mukhtiar and Sher Hussain came and caught hold of Dost Muhammad from his back. Dost Muhammad got himself released and ran to his house which was at the back of his shop. The said three persons abused him and broke some of the articles, and asked respondent Dost Muhammad to come out of the house otherwise they will loot the shop. Thereafter, Dost Muhammad fired in the air to scare them on which the three persons ran away. The applicant has not produced affidavit of any other witness regarding the threats issued to him by the respondent No.1. The State has not applied for cancellation of bail nor supported the present application. It appears that the applicant has not been able to digest the release of the applicant. It was held by this Court in 1977 P Cr. L J 277 observations at page 279 that the provisions regarding cancellation of bail cannot be made available to private parties to satisfy their grudges against each other, or to use as a means of wreaking their vengeance. Once the accused person is admitted to bail, he cannot be deprived of his liberty without there being tangible evidence to the effect that he misused the liberty to the prejudice of due administration of Justice. I am in respectful agreement with the principle laid down in the above decision.

In view of the above discussion, I am of the view that the order passed by the learned Sessions Judge, granting bail to the respondent NO-1 does not call for interference by this Court and the application is accordingly dismissed.

However, if the respondent abuses the liberty at any time during, the trial, the applicant /complainant will be at liberty to move the trial Court for cancellation, if so advised.

S. A. /S-77/ K Bail cancellation refused.

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