2017 PLP 664 (YLR)

MALIK HAQ NAWAZ, J.

The respondents were booked for the above offences vide FIR No.36/15 of Police Station Gahkuch dated 10.8.2015 under sections 302/324/34, P.P.C.

2. The brief facts of the case are that Amjad Ali SHO/SIP got telephonic information from SGC Muhammad Afzal, who was in Gahkuch Bazar that a double murder has taken place in Rajput Market near Micro Finance Bank. The SHO rushed to the place of occurrence and found that two dead bodies, i.e. one of a male and other of a female were lying there. On inquiry SHO was informed that last year Mst. Lubna daughter of Abdul Hadi, resident of Bubar contracted a run marriage with one Zahir Shah son of Hoor Shah, without the consent of their parents and being aggrieved of this marriage, the accused were sitting in ambush, who after commission of murder took to heels. Because of firing of accused one passerby Niat Wali also got injured. On further inquiry SHO was informed that firing was opened by the accused Abdul Hadi and Abdul Majeed. The murder is on account of honour killing, punishable under sections 302/ 324/34, P.P.C.

3. The SHO completed some codal formalities and started further investigation and arrested the present accused/ respondents and after completion of investigation they were sent to judicial lockup. The respondents/accused applied for bail in the trial Court which was allowed vide order/judgment dated 9.3.2015, and the State feeling aggrieved of the said judgment applied for cancellation of bail under section 497(5), Cr.P.C.

4. The learned Dy.A.G. submitted at bar that the respondents are directly charged in the FIR and recovery of crime weapons have been effected from them. The postmortem of deceased further corroborates the factum of death by means of firearms injuries. The learned Dy.A.G, and counsel for the complainant further stated that the respondents were identified in an identification parade, which is a strong piece of evidence and despite the availability of abundant evidence, grant of bail to the respondents was not justified and the learned trial Court has not properly exercised his discretion while granting bail to the respondents.

5. Raja Zia-ur-Rahman, the learned counsel for respondents submitted that the name of the respondents are although mentioned in the FIR but that is only and mainly on the basis of suspicions and despite of the facts that the murder took place in busy bazaar not a single independent person has been examined to support the prosecution case. Per learned counsel the so-called eye-witness was examined after seven days of the occurrence, and identification parade conducted through the said so-called eye-witness is mockery in the eyes of law.

6. After hearing the learned counsel for the parties and going through the record with their able assistance, the names of the respondents although find mentioned in the FIR but the SHO has not disclosed any source, who informed him about the identity of the respondents/accused. No earthly reasons have been shown as to why so-called eye-witness kept mum for a long seven days and no explanation is available on record to justify such an inordinate delay. Inordinate delay in recording statement of a witness whose name even does not figure in FIR, is a factor, the benefit of such delay will go to the accused even at bail stage. The evidentiary value of identification parade will be adjudged by the trial Court after recording of evidence. It is Strange enough that no identification parade was held through injured witness Niat Wali, who was a passerby and was an independent and impartial witness. The said eye-witness in his Court statement also did not identify the respondents/accused. Such lapse on the part of prosecution has brought the case within the purview of further inquiry, even if the reasons recorded by the learned trial Court were beyond the scope of tentative assessment. Moreover, it is, bail cancellation application and by now it is almost all a settled proposition of law that once bail is granted by a Court of competent jurisdiction, then very exceptional and strong grounds are required for cancellation of bail but the learned Dy.A.G. and counsel for the complainant could not point out any such ground. A bail granting order by a Court of competent jurisdiction cannot be recalled only for the reasons that while deciding a bail application the trial Court has travelled beyond the limitation of "tentative" assessment. The respondents/accused cannot be penalized just because of an act of the Court if some other grounds, other than those mentioned in bail granting order are available, bringing a case under section 497(2), Cr.P.C.

7. Before parting with the judgment, I would like to observe that while granting bail to the respondents, the learned trial Court has travelled far from the parameters for grant/refusal of bail. The relationship of any prosecution witness labeling him as an "interested witness" and criticizing the validity of identification are the factors, which could not and should have discussed, as the probative value will be thrashed after recording of evidence by the trial Court. These findings are expunged from the judgment being un-called for.

8. As a result of above discussions, the petition for cancellation of bail is declined. HBT/43/GB Petition dismissed.