1988 PLP 53 (MLD)

This is an application under section 497 (5) read with section 561-A, Cr.P.C. The brief facts of the prosecution case are that the applicant and the co- accused were sent up under section 302 read with section 109, PPC before the learned IIIrd Additional Sessions Judge, Karachi East. After the case was sent up, the respondent moved an application for bail but the same was rejected by the learned trial Judge. The respondent moved an application for bail before this Court and the same was granted by me vide order dated 21-12-1987. The present application has been filed for setting aside the above order, and for cancelling the bail granted to the respondent. I have heard the learned counsel for the applicant, the learned counsel for the private respondent, and the learned Assistant Advocate-General for the State. It has been contended by the learned counsel for the applicant/complainant that prima facie the respondent was responsible by virtue of section 34, PPC, and therefore, he was not entitled to bail. He has cited number of decisions in order to support his contention. The learned counsel for the private respondent has contended that the only allegation against the respondent was that he had instigated the co-accused which was absurd on the face of it in view of the fact that he was empty handed. That co-accused Din Mohammad was granted bail by this Court and no application was filed by the complainant for cancellation of his bail which clearly shows mala fides on the part of the applicant/complainant. He has further contended that once a bail is granted it cannot be cancelled unless it is shown that the order passed by the Court by which he is granted bail is perverse, arbitrary or not based on correct appraisal of the facts. The learned A.A.-G. has contended that the order passed by this Court granting bail to the respondent is based on proper appreciation of evidence and it does not call for interference. There are no grounds to cancel bail of respondent at this stage. I have considered the contentions of the learned counsel and have gone through the documents produced alongwith application. The only allegation against the present applicant was that he had gone to the place of wardat and had instigated the two co-accused who were his real sons to commit murder of the deceased. The very fact that the applicant was empty handed and there was no other overt act assigned to him, and his two sons have been implicated as the: main accused I am of the considered view that it was a case of further enquiry with regard to his participation in the alleged incident. Co-accused Din Mohammad was also granted bail prior to the grant of bail to the present respondent and no application for cancellation was moved against him although, his case was identical to that of the respondent. This clearly shows the mala fides' on the part of the applicant/complainant, and further goes to show that he hadi deep, rooted grudge against the respondent, and therefore, has not been able to digest his release. The law laid down in the case of Mohammad Fazal Alias Budi v. The State (1979 SCMR 9) was relied upon while granting bail to the applicant. There are number of decisions of Supreme Court including 1978 SCMR 448 in which the bail was granted to the accused because only allegation against him was that he had raised `LALKARA'. The decisions relied upon by the learned counsel for the applicant are not applicable to the facts of the case, and allegations in those cases against accused were totally different and there is not a single case in which the only allegation against the accused was that of `LALKARA'. From the above discussion I am of the clear view that the application filed by the applicant is untenable and it is accordingly dismissed. However, the applicant will be entitled to move the trial Court for cancellation of bail of the respondent in case any tangible evidence is brought on record during the trial. However, I would like to make it clear that the trial Judge while proceeding with the above case will not be influenced by the observations made by me while granting bail to the respondent, as well as while rejecting the present application. SA./W-28/K. Application dismissed.