1999 PLP 2040 (MLD)

This order will dispose of the listed application under section 497 (5) read with section 561-A, Cr.P.C., wherein the applicant/complainant has prayed for cancellation of bail granted to the respondent No. l by the learned I-A. D.J. Karachi South (Mr. Qazi Allah Bux) in Sessions Case No. 11 of 1998.

2. Notice of the application was given to the respondent No. I /accused and after service he appeared in this Court alongwith his learned counsel but today he is called absent. On the last date of hearing also he was called absent and bailable warrants could not be executed because as per endorsement of the process-server the respondent No. 1 has shifted to some unknown place.

3. Mr. Habibur Rashid, learned State Counsel, who is in possession of papers and requests for adjournment which is disallowed for want of sufficient cause. The English translation of the F.I.R. No.221 of 1997 registered under section 302, Qisas and Diyat Ordinance,. 1991 at Police Station Mehmoodabad reads as under: -- "Today (i.e. 12-9-1997) at 11-00 hours, I Inspector Shah Sawar of Police Station Mehmood Abad, Karachi was present at police station as patrolling duty officer, when H.C. Ghulam Shabbir 709 and Constable Muhammad Fazal 1262 presented before the S.H.O. two persons, whose names were later on disclosed as

1. Hassan son of Natha and

2. Abdul Karim son of Mamoon Sain, telling they were absconders and were required in respect of the cases of the said police station. They made their hands free from A.S.I. Sami Jan and P.C. Muhammad Azam No. 1659, before the S. H. O., and ran away. Due to this H. C. Ghulam Shabbir raised cries 'Catch, Catch' and, pursued them. A.S.

1. Sami Jan and P.C. Muhammad Azam also chased them. When the two culprits did not stop and reached near Corporation gate road crossing Azam asti H.C. 709 Ghulam Shabbir opened fire with his personal pistol at lt-05 hrs. As a result these one of the culprits sustained injuries. He was sent to Jinnah Hospital for medical treatment by incoming mobile of this police station. It seems the aforesaid H.C. caused injuries to Abdul Karim son of Mamoon Sain by opening fire at him when he could not catch hold of him. Hence he has committed an offence under section 324, Qisas and Diyat Ordinance, and the case is being registered. Copy of F.I.R. was supplied to S.D.I. Inspector Muhammad Ashraf for investigation. The rest of copies shall be distributed as per rules."

4. Learned counsel for the applicant submits that the accused fired at the deceased when he was not performing his official duty and even the weapon used in the commission of the alleged offence was admittedly an unlicensed one. Furthermore, prior to the deceased having sustained injuries no case had been registered against him for any offence at the police station. The learned counsel for the applicant has invited my attention to the operative part of the impugned order which reads as under: -- "

4. The F.I.R. and record indicate that the applicant fired on the deceased in discharging his official duties. There does not appear any criminal intention to commit the murder of the deceased on the part of the applicant, hence the applicability of section 302, P.P.C., requires further enquiry." '

5. The learned counsel for the applicant has vehemently contended that the learned trial Court has erred in appreciating the facts since the respondent No. l had admittedly fired a shot at the deceased with an unlicensed weapon which belonged to him personally; and that the concept of further inquiry was misconstrued by the learned trial Judge.

6. I have heard the learned counsel and perused the record. The Appellate Court is to sparingly exercise jurisdiction under section 497(5), Cr.P.C. in cancelling the bail unless and until the discretion exercised by the trial Judge is shown to be perverse, illegal and based upon misconstruction of facts, evidence and law. In the present case admittedly the respondent No. 1 employed an unlicensed and personal weapon to fire at the deceased. The F.I.R. confirms that it was not only the respondent No. 1 but other police officers who were running after the deceased to apprehend him. It is not the case where the deceased was g armed and confronted the respondent No. 1 and the other officers running after him with a cross-fire. Nothing has been brought on record to show that the respondent No. 1 first fired the warning shots. In case of an extreme apprehension that the deceased would have run away, the respondent No. 1 could I have fired shots on the legs to avoid any fatal injury. This was also not done.

7. In view of the above I am of the opinion that the learned trial Judge has materially erred in granting bail to the respondent No.

1. In Najeeb Gul v. Khalid Khan and another 1989 SCMR 899, a Full Bench of the Hon'ble Supreme Court observed that the relevant context of "further inquiry" in section 497(2) of the Cr.P.C. is the existence of reasonable grounds that the accused has not committed the offence. It was further observed that when a Court is not conscious or convinced of this aspect, mere further inquiry is of absolutely no avail to the accused for grant of bail under section 497(2). On this score the Hon'ble Supreme Court cancelled the bail, while issuing directions for the accused to be taken into custody in accordance with law.

8. I am of the view that the learned trial Judge has filed to appreciate the fact that the respondent No. 1 had admittedly used an unlicensed weapon. The aspects underscored in para. 6 above that the deceased had not confronted the chasing police party with a cross-fire, no warning shots were fired by the respondent No. 1 and that the respondent No.1 made no attempt to fire and aim at the legs of the deceased, have been totally ignored by the learned trial Judge. Thus his conclusion cannot be sustained with regard to "further inquiry" in view of the judgment of the Supreme Court in Najeeb Gul (supra). Another aspect of the matter which weighs heavily against the respondent No. 1 is his absence from this Court without any intimation despite service of notice.

9. In view of the above, the application is allowed and the bail granted to the respondent No.1 by the Trial Court is hereby cancelled. The respondent No.1 may be taken into custody in accordance with law. The learned Trial Court is, however, at liberty to consider any subsequent bail application moved by the respondent No.1 if the merits of the case so justify. It is needless to state that the observations hereinabove are tentative in nature. N.H.Q./M-359/K Bail cancelled