1990 PLP 303 (MLD)

‑‑‑Ss. 497(5) & 435/439‑‑‑Penal Code (XLV of 1860), Ss. 302/34 & 307/34‑‑‑Suo Motu Revision, cancellation of bail‑‑‑Accused alongwith other two co‑accused was identified in identification parade by mother and injured brother of deceased child leaving no room for even a remote possibility of false involvement of accused‑‑‑Principal 4ccused might not have succeeded in stabbing deceased child if accused and his co‑accused had not overpowered deceased for which reason bail application of co‑accused had already been rejected and there was no valid reason that co‑accused should remain in custody and present accused having been assigned identical role should remain on bail simply on the ground that he had not misused his liberty since his release on bail‑‑‑Case was of very heinous nature in which an unsuspecting small child was over powered by two persons and knifed to death by their accomplice‑‑‑Bail allowed to accused by lower Court was cancelled in circumstances. Muhammad Ismail v. Mohammad Rafique and another PLD 1989 SC 585 and Ameeruddin v. The State PLD 1977 SC 602 ref. K.M. Nadeem Asstt. A.‑G., Sindh and Mohammad Ashraf Kazi for Respondent. Khawaja Naveed Ahmed for the Complainant. The circumstances under which this Criminal Suo Motu Revision arises arc that a six year old boy was murdered in his own house on 12‑5‑1988 and FIR of the case was lodged by his father the same day under section 302 and 307, PPC according to which three persons, Aslam Khan, Adnan Ansari and Rehan were known to the complainant and his family and often played with the sons of the complainant when the complainant was living at the U.K. Apartments. Subsequently, the complainant had shifted to Gulshan‑e‑Iqbal about six months prior to the incident. Injured Jehangir, who is also a son of the complainant, had stated that the three accused boys came to the house of the complainant where they met injured Jehangir and asked him to call his younger brother Umer and thereafter they asked the two sons of the complainant to show them their bed room. According to injured Jehangir, he apprehended no danger at the hands of the three boys and took them in the bed‑room where two of them, Mohammad Aslam and Adrian, caught hold of deceased Umer, a mere six year old child, and Rehan stabbed him to death and later assaulted Jehangir as well. Thereafter, all the three made good their escape from the house of the complainant. Later on all the three were arrested and were identified by injured Jehangir and his mother in the identification parade. Later on a bail application was moved on behalf of accused Mohammad Aslam Khan in the trial Court which was rejected and thereafter he moved a bail application in this Court (Cr. Bail Application No. 353/89) which was also dismissed on 3‑5‑1989. However, it transpired during the hearing of the said bail application that co‑accused Adrian Ansari was granted bail by learned Add]. Sessions Judge vide order dated 11‑7‑1988. Since the role of Mohammad Aslam Khan and of Adrian Ansari was the same, notice was issued to co‑accused Adrian Ansari as to why his bail should not be cancelled. This notice was registered as Cr. S.M. Rev. No. 39/89.

2. It was argued by the learned counsel for accused Adrian Ansari that he was granted bail as long ago as on 11‑7‑1988 and so far there has been no allegation that he misused his liberty and that "charge" has now been framed in this case by the learned Addl. Sessions Judge on 31‑10‑1989 and the case is now at the stage of hearing and Fixed for 6‑12‑1989. On this ground he prayed, not withstanding the rejection of bail of co‑accused Mohammad Aslam Khan, that accused Adnan Ansari may be allowed to remain on bail and in this regard he relied upon the judgment of the Hon'able Supreme Court in the case of Mohammad Ismail v. Mohammad Rafique and another P L D 1989 SC

585. This judgment of the Supreme Court appears to suggest that when a case is fixed for trial, the bail of co‑accused may not be cancelled. On the other hand, learned AA.‑G. has relied on P L D 1977 SC 602 (Ameeruddin v. The State) and argued that subsequent progress of the case is not material and therefore it is irrelevant as to whether accused Adrian Ansari has or has not misused his liberty since his release on bail.

3. As the facts of the case stand, co‑accused Adrian Ansari alongwith other two co‑accused was identified in the identification parade by the mother and brother of the deceased. The brother was also himself an injured. Possibility of false involvement in the case was so remote that it was not agitated either during the hearing of the bail application of Mohammad Aslam or during the hearing of this Revision application. As observed by this Court in its order in Cr. B.A.No.353/89, no motive could be attributed to young Jehangir and his mother for falsely implicating the three accused persons. Although co‑accused Adrian and Mohammad Aslam Khan are alleged to have caught hold of the deceased child and the actual stabbing was allegedly done by co‑accused Rehan Ahmad, it is clear that co‑accused Rehan Ahmed might very well not have succeeded if the other two co‑accused had not over powered the deceased child. It was for this reason that bail application of Mohammad Aslam Khan was rejected. There is no valid reason that while co‑accused Mohammad Aslam Khan should remain in custody, co‑accused Adrian Ansari should remain on bail notwithstanding the fact that identical role has been assigned to them by the prosecution and merely on the ground that he has not misused his liberty since his release on bail in July, 1988. Even otherwise, it is a case of very heinous nature in which an unsuspecting small child was over‑powered by two persons and knifed to death by their accomplice. I would therefore cancel the bail of co‑accused Adrian Ansari and order that he should be taken into custody. N.H.Q./S‑515/K Bail cancelled.