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Criminal Miscellaneous No. 2394/B of 1986, decided on 18th November, 1986.
--S. 497(5)--Penal Code (XLV of 1860), S.302--Bail, cancellation of- Fatal shot to deceased attributed to petitioner--Question whether deceased died as a result of injury caused by pellet or bullet, held, would fall within domain of Trial Court and prosecution case could not be looked at with suspicion by entering into such exercise, while ' deciding bail application--Trial Court, held, failed to exercise its discretion on proper appreciation of facts and circumstances of case--Bail cancelled, in circumstances.
Shahid Hussain Kadri for, Petitioner.
Sh. Nasim Hassan for Respondents.
This is an application for cancellation of bail of Abdur Rahim respondent allowed to him in a case under section 302/307/34, P.P.C. by Syed Tathir Hussain Sherazi, Additional Sessions Judge, Mianwali on 31-7-1986.
2. The facts in brief are that on 27-8-1985 Mehr Khan real brother of Ghulam Hussain complainant objected to the passing of Abdul Karim accused in front of his house because of the suspicion of illicit intimacy against him with his daughter. This led to an exchange of abuses between them. Shortly afterwards Abdul Karim accompanied by his brothers Abdul Majid and Abdur Rahim respondent armed with guns arrived at the spot and started firing towards the complainant party which did not hit anybody. In the meantime Ghulam Hussain complainant went to his house and brought his licenced gun. On this Abdur Rahim respondent fired at him which instead of hitting him hit his niece Mst. Safia Iqbal, aged 11/12 years, which proved fatal.
3. The learned Additional Sessions Judge granted bail to Abdur Rahim respondent on the ground that the case required further inquiry. The reason which prevailed with him was that in the F.I.R. respondent was alleged to be armed with rifle but according to the post-mortem report, pellet had been recovered from injury No.l of the deceased contradicting the ocular account. It was argued before him that the supplementary statement made by the complainant alleging that the respondent was armed with .12-bore gun was made to fill up lacuna in the F.I.R.
4. I have heard the learned counsel for the parties. A perusal of the impugned order gives indication that the learned Additional Sessions Judge embarked upon the discussion on the merits of the case which was not permissible. The fatal shot to the deceased is attributed to the respondent. She died of a fire-arm injury. The question and effect of her death being caused by a pellet or Pakki Goli fell within the domain of the trial Court and it was not proper to look at the prosecution case with suspicion.
In the above circumstances, the learned Additional Sessions Judge had not exercised his discretion on proper appreciation of the facts and circumstances of the case. Accordingly, I grant the petition and cancel the bail of Abdur Rahim respondent.
S. G. D. Bail cancelled.
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