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Criminal Miscellaneous Application No. 553 of 1985, decided on 12th April, 1987.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), Ss. 302, 34 & 114‑‑Bail No assessment of evidence to be made at bail stage to determine guilt or innocence of accused‑‑Courts at bail stage, held, could not enter upon detailed appreciation and examination of evidence‑‑Although disputed questions could not be decided in vacuum and Court had. to look into material available while considering bail, yet at same time contentions of parties could not be distinguished by making reference to ocular and medical evidence‑‑Trial Court would be proper forum to appreciate further impact of arguments during trial.

1982 S C M R 208; 1978 P Cr. L J 664 and 1980 P Cr. L J 789 ref.

1982 S C M R 153 rel.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), Ss. 302, 34 & 114‑‑Bail‑ Application for cancellation‑‑Order of trial Court granting bail to accused neither arbitrary nor unjust and material available on record and contents of first information report not justifying interference with bail granting order‑‑Accused on bail for last more than a year and a half without trial being started and no allegation of misuse of liberty existing against them‑‑Application for cancellation of bail not granted.

1982 S C M R 153 rel.

Abdul Halim Pirzada for Applicant.

Shaikh Ayaz for Respondents Nos. 1 and 2.

Zawar Hussain Jafferi, A.A.‑G. for the State.

This petition has been filed by the complainant Akbar Mazari for cancellation of bail granted to two respondents by the Additional Sessions Judge, Kandhkot by his order dated 19‑8‑1985. I have heard the arguments of the learned counsel for the parties Mr. Abdul Halim Pirzada for the applicant, Mr. Shaikh Ayaz, Advocate for the respondents and Mr. Zawar Hussain Jafferi AAG for the State.

According to FIR which was registered at P.S. Kashmore as crime No. 54/85 on 26‑5‑1985 under sections 302,34,114 P.P.C. was alleged by the complainant that he had come to Kashmore for making purchases accompanied with his brother Hasul and relatives Murid and Ghulam Mustafa. While they were returning to their village in the bazar. When they reached near the hair cutting saloon at about 1500 hours the respondents Shah Bux and Shah Baig (both brothers) Bakht Ali and Gulzar (also the brothers inter se) appeared with guns. It is also alleged that at the instigation of Bakht Ali and Gulzar, respondent No.1 and 2 fired at Hasul which were straight fires and as disclosed in the FIR hit him on his chest who fell down and the culprits giving threats left the spot. The motive for the commission of offence is a quarrel that took place about 5‑6 days prior to the incident over a dispute with regard to workshop at Gudu. The two applicants, after they were challaned, were granted bail by the Additional Sessions Judge, Kandhkot on 19‑8‑1985 against which order the present application for cancellation has been moved by the complainant. Thereafter, on 15‑12‑1985 anticipatory bail before arrest was granted to the co‑accused Gulzar and Bakht Ali.

The learned counsel for the applicant Mr. Abdul Halim Pirzada has contended that there is allegation of direct firing against the respondents. Hence it was premature to grant bail to them by taking into consideration the evidence on record and according to the observations made in the order it amounts to deeper appreciation of evidence at bail stage. He has taken the assistance of legal authorities. It was also contended by him that Shah Bux respondent was arrested on 30‑5‑1985 and a gun was recovered at his pointation on 3‑6‑1985. The learned counsel for the respondents Shah Bux and Shah Baig on the other hand has submitted that the bail granted to the respondents was justified in the circumstances of the case and has contended that there are no reasonable grounds made out to disturb the order of grant of bail.

I have also heard the arguments of the learned counsel for both the sides and Mr. Zawar Hussain Jafferi appearing for the State, who has without controverting the factual aspect of the case, supported the application for cancellation on the ground that names of both respondents appear in FIR and that it was premature stage to consider the submission of defence counsel. Mr. Pirzada, the learned counsel for applicant has referred to a case reported in 1982 SCMR 208 and his contention is that the allegation as disclosed in the FIR disentitles the respondents to the grant of bail and according to him the inconsistency marked could not be considered at this stage between ocular evidence and the medical report. I am afraid I do not agree with the contentions of the learned counsel in the circumstances and present case. In the above cited case there is no embargo and it has been held in this decision that the principle of further inquiry in the circumstances is to be read in the light of peculiar facts and circumstances of each case. Facts of this case and the submissions made by the learned counsel for applicant are of such a nature that if answered at this stage, would touch the merits of the case. Hence I refrain from going into the merits of the case lest it may prejudice the case of any of the party. As against this contention of the learned counsel for the applicant the respondents' advocate has urged that material on the record cannot be ignored and his main contention is that there is discrepancy on the face of it between ocular version of the PWs and the medical report as in the FIR prosecution case is that the firing was done straight and it is specifically alleged that the fires hit on the chest of Hasul. He has placed reliance on 1978 PCr.LJ 664 where contention raised by the learned counsel finds answer. Also 1980 P Cr. L J 789 has been referred and it is contended emphasising on the additional ground that fhe bail to the respondents was granted on 19‑8‑1985 in the incident of 26‑5‑1985 and the cancellation of the bail application has been moved on 14‑9‑1985 and it is clear from the record that both the respondents have remained on bail from August 1985 till date and the trial has not yet commenced. Hence the discrepancy coupled with this fact can not be lost sight of although I have also kept in view the dictum of the superior court that courts at bail stage could not enter upon detailed appreciation and examination of evidence but it is also clear that such undisputed questions cannot be decided in vacuum and the court has to look into the material available while considering bail as has been held in 1982 SCMR 153. In the present case the medico‑legal examination was available and in the trial Court, it was emphatically urged was correct to examine it in the light of specific allegations and under these circumstances the trial Court could not refuse making tentative assessment. However, without commenting upon the facts of the case I have carefully considered the arguments advanced by both the parties and also the AAG and have perused the record available having gone through. it for which I had full assistance of the learned counsels. I cannot resist to observe that at this stage of the case it would not be desirable/adviseable to distinguish the contentions by making reference to the ocular medical evidence and interfere with the order. It may be mentioned that the respondents' counsel has also made his submissions that as many as 14 persons from the vicinity and nearby place have been examined by the police during. investigation and some of them have been examined under section 164, Cr.P.C. The two co‑accused have been shown in column 2 of the challan. As already stated by me at this stage I would not go so deep into the assessment of evidence to determine the guilt or innocence of the respondents which will be unavoided and by settled principles such appreciation is discarded by the Hon'ble Supreme Court. In this view of the case I do not feel inclined to make any observation that may adversely affect the case of either party. Mr. Pirzada has argued, without controverting the last contention, saying that police should not have examined the witnesses as from their statements one gathers an impression that they are defence witnesses and it was not for the police to have collected the defence evidence but the fact remains that this material is available on record and the trial Court has been impressed by making tentative assessment. It is also evidence from the record that the investigation was passed over from the local police to the Crime Branch which was done at the instance of the complainant /applicant who was making repeated applications to the superior officers. From the contentions raised by the applicant's counsel, I feel, the trial Court would be the proper forum to appreciate further impact of these arguments during the trial and from the material placed before me no grounds are made out to interfere with the impugned order of grant of bail to the respondents dated 19‑8‑1985. I feel fortified in this view, taken by me by what has been held in 1982 SCMR 153. Careful consideration of the contents of FIR and the reasons given in order of grant of bail and submissions made by the learned counsel at bar I am of the view that this is not a case for interference as the trial Court's order is neither arbitrary nor unjust and since respondents have remained on bail for more than 1 year without trial being started and there being no allegation of misuse of liberty, no case for cancellation of bail is made out. The petition, in the peculiar circumstances of the case and the facts of this case, must fail.

In consequence Cr. Misc. A. No. 553/85 is, therefore, dismissed.

M.Y.H./A‑152/ K. Petition dismissed.

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