2013 PLP 1963 (YLR)

SHAHID HAMEED DAR, J.

Seeks cancellation of post-arrest bail allowed to respondents Nos.2 and 3, vide order dated 10-6-2011 by learned Additional Sessions Judge, Gujranwala in case F.I.R. No.335, dated 12-10-2010, under sections 302, 109, 120/B, 148, 149, P.P.C., registered at Police Station Wahndo, District Gujranwala.

2. Learned counsel for the petitioner submits that the respondents-accused had been attributed role of firing at the deceased and thereby committing their murder instantaneously; both the accused absconded after the occurrence and this fact was badly ignored by the learned bail granting court; the opinion of the Investigating Officer was not based on any cogent or plausible material still, the same was resolved in favour of the respondents in an injudicious manner; the crime committed by the respondents-accused is heinous and falls under the prohibitory clause of section 497(1), Cr.P.C.; lastly submits that the impugned order has resulted in grave miscarriage of justice which may not be sustained; relies upon "Muhammad Ilyas, Chief Manager/ Attorney, Allied Bank Ltd. v. Shahid Ullah and others" and "Muhammad Ilyas, Chief Manager/Attorney, Allied Bank Ltd. v. Arif Ali and another" (PLD 2009 SC 446).

3. On the other hand, learned counsel for the accused-respondents submits that the case of the prosecution had been found false during the course of investigation and it came to light that the accused-respondents had not taken part in the incident in any manner; no specific injury to the deceased has been attributed to the respondents-accused; Muddassar Hussain respondent is employed at civil secretariat who established his presence in his office at the relevant time of occurrence through plea of alibi which was verified by the Investigating Officer; Shamas Tabraiz accused also raised an identical plea which was verified by the Investigating Officer after having collected direct evidence in respect thereto; the respondents have been falsely involved in this case in the backdrop of previous enmity as they happened to be the real brother of Mubashar, the deceased of case F.I.R. No. 309 of 2008, dated 31-8-2008, under section 302, P.P.C., registered at Police Station Aimanabad, District Gujranwala wherein Shafqat (deceased of this case) was one of the accused; the bail granting order is passed according to the settled principles of law so it may be maintained; relies upon "Nasir Khan v. Waseel Gul and another" (2011 SCMR 710) and "Abdul Ghafoor and others v. Mst.Marriam Bibi (deceased) through Legal Heirs and others" (2011 SCMR 1648).

4. Learned Deputy Prosecutor-General Punjab supports and adopts the contentions of learned counsel for the petitioner and submits that the impugned order may be set aside being illegal one;

5. Having heard learned counsel for the parties and perused the record, it is observed that both the respondents-accused were found not involved in the occurrence during the course of investigation and plea of alibi raised by them was verified by the Investigating Officer who collected sufficient material in this regard to base his opinion thereon. According to the F.I.R. case both the deceased Adil and Shafqat Hussain were fired at and killed by as many as eight accused who all were armed with firearms. The postmortem examination report of Adil deceased shows four entry wounds whereas, that of Shafqat Hussain deceased reveals one firearm entry wound. Whose fire shot virtually hit the deceased and whose not, is a riddle, to be resolved, at trial. No proceedings under section 87, Cr.P.C. were conducted against the respondents and contention of learned counsel for the petitioner, in this regard is without any substance. The pitched enmity between the parties is admitted and registration of F.I.R. No.309 of 2008 for an offence under section 302, P.P.C. against Shafqat Hussain deceased is an ample proof of it as the person murdered in the said case happened to be the real brother of the respondents. There is; no cavil to the proposition that a bail granting order can be recalled if it suffers from the disqualification of being patently illegal, erroneous, factually incorrect or it has resulted in miscarriage of justice or the court considers that the same is perverse on the face of it or it has been passed in violation of the law. Considerations for cancellation of bail are altogether different from the ones, meant for grant/refusal of bail to an accused. Once an accused has been admitted to bail by a court of competent jurisdiction, exceptional circumstance would be required to interfere with such order. I do not find any such exceptional or extraordinary circumstance to believe that the case of the respondents was not open to further probe, as envisaged by section 497(2), Cr.P.C. The respondents underwent almost full term physical remand but this period of time remained unproductive. While referring to the case law, relied upon by learned counsel for the respondents, I do not find it a fit case to recall the impugned order, through which respondents-accused were granted bail.

6. In view of the above, finding it destitute of merits, I dismiss the instant petition. MWA/S-5/L Petition dismissed.