1989 P Cr (PLP)

Abdul Ghafoor Mangi, Addl. A.-G. for the State. This is an application under section 497(5), Cr.P.C. for cancellation of bail of respondent Hukum Dad, who is facing trial under section 302 before the learned IIIrd Additional Sessions Judge, Karachi (West). It appears from the order granting bail to the respondent that the bail was granted after the eye witness Mst. Shabana was examined, and the order further shows that since she was the only eye-witness in the case and her statement in Court was contradictory to the statements made by her earlier under section 161, Cr.P.C. However, after three months an application was moved for cancellation of bail but the same was rejected by the learned trial Court. The present application has been filed against the said order. I have heard Mr. Fazal Dad Khan, learned counsel appearing for the applicant, Mr. Choudhry Iftikhar Ahmed, learned counsel appearing for respondent, and Mr. Abdul Ghafoor Mangi, Additional Advocate-General for the State. It has been contended by Mr. Fazal Dad Khan, learned counsel appearing for the applicant that Mst. Shabana was an independent eye-witness and she has fully implicated the respondent No.l in her deposition. He has further contended that the Medical Officer who has been examined in the Court has also identified the accused to be a person who had appeared before him in injured condition. Mr. Choudhry Iftikhar Ahmed, learned counsel appearing for respondent No.l has contended that the case has proceeded and as many as four witnesses have been examined in the case, and therefore, if any order is passed on merits whether allowing the application or not it is bound to affect the case of one or the other party inasmuch as the Court has to give its tentative findings with regard to the guilt of the respondents. Mr. Abdul Ghafoor Mangi, learned Additional Advocate-General appearing for the State has opposed the application on the ground that since the trial has already started it will not be appropriate to pass any order on merits as it was bound to affect the one or the other party. I have considered the contentions of the learned counsel. It has been admitted by Mr. Fazal Dad Khan, learned counsel appearing for the applicant that four witnesses have been examined, and witnesses who still remain to be examined are formal witnesses. The learned trial Judge has exercised discretion after taking into consideration the evidence of the only eye-witness Mst. Shabana A and it cannot be said that the order was perverse, foolish or illegal, no such infirmity has been pointed out by the learned counsel. It is also admitted fact that four witnesses have been examined. In the case of Abdul Qadir v. Muhammad and others 1976 P Cr. LJ 1203 it was observed by Mr. Nasim Hasan Shah, J (as his Lordship then was):-- Trial already started and part of evidence recorded while date for recording statements of eye-witnesses fixed by Court. Cancellation of bail at this stage, held was likely to influence trial, cancellation of bail declined in the circumstances. In the case of Khadim v. Hassan and others 1985 S C M R 909 their Lordships of the Supreme Court declined to interfere with the order of grant of bail on the ground that the prosecution evidence in the case was already recorded and the case was fixed for arguments. In view of the above discussion I am of the considered view that no case for cancellation of bail has been made out and the application is therefore, dismissed. N.H.Q./M-778/K Bail cancellation declined.