1997 P Cr (PLP)

The applicant/accused Muhammad Tayyab son of Allah Yar was enlarged on bail by this Court vide order, dated 15-6-1992. The complainant Muzaffar Khan has moved the present application being M.A. No. 1099 of 1992 seeking cancellation of the bail granted to accused Muhammad Tayyub. Very briefly the prosecution case is that on 7-4-1992 complainant Muzaffar Khan alongwith Anwar Khan were going to their house on foot. When they reached near Labour Colony Road a white Suzuki car came there in which applicant was sitting on the passenger seat while co-accused Muhammad Ashraf was driving the car. On the rear seat co-accused Muhammad Hayat and Muhammad Iqbal were sitting. It is alleged that accused persons fired upon complainant party, on account of which Anwar Khan was hit at his head, stomach and neck and died at the spot. I have heard Mr. Sharif Khatak learned counsel for the applicant/ complainant and Mr. Behram Khan Ujan; learned counsel for the respondent/ accused Muhammad Tayyab and so also Mr. Zubair Qureshi, learned counsel for the State. The learned counsel for the applicant has contended that since the applicant was sitting in the said car, therefore, he was sharing the common intention alongwith other co-accused. He, therefore, argued that there was sufficient material to connect the accused with the commission of this crime. Learned counsel has stated that the material available against the accused was the statement of the complainant Muzaffar Khan and, therefore, it cannot be said that there was no material against the applicant. On the basis of the said submission the learned counsel has prayed for the cancellation of bail of the applicant. On the other hand the learned counsel for the accused has submitted that there is not a single witness in this case who had seen the applicant firing. He has further submitted that the report, which had been lodged in this case appears to be a managed affair. He has, therefore, prayed for dismissal of this application. I have carefully considered the arguments of the learned counsel for the parties and I have also gone through the material available on record. Bail was granted to the applicant on the ground that neither any specific part was assigned to the applicant nor any role was attributed to hire. It was also observed that the presence of the applicant in the car could be that of an innocent passenger. In, such circumstances it was observed that the case of the applicant requires further, enquiry. I have no hesitation in stating that the learned counsel for the appellant has not been able to show any cogent material from which it can be prima facie inferred that the applicant was privy to the commission of this offence. On the contrary it has been admitted by the learned counsel for the applicant that apart from the complainant there is no eye-witness in this case. This fact has also been confirmed by the learned counsel for the State. Furthermore, the learned counsel for the State has very fairly pointed out that the complainant had lodged the F.I.R. on 7-4-1992 at 9-10 p.m. But, before that prosecution witness Sarfraz Khan reported the matter to the police that some unknown persons had, killed the deceased. This information was taken down in the Station Diary Entry No.40/92 on the basis of which police reached the spot and inspected the place of Wardat at 7-40 p.m. All along the complainant was available but his statement was neither recorded under section 161, Cr.P.C. nor under section 154, Cr.P.C. In fact the F.I.R. shows that the complainant accompanied the S.H.O. to the police station and thereafter at 9-10 p.m. the report was lodged. This will go to show that even the manner in which the investigation was conducted was not free from doubt. It may be noted that this is an application for cancellation of bail. The considerations for cancellation of bail are quite different from the grounds for grant of bail. The grounds for cancellation of bail are akin to the grounds for appeal against acquittal. This was the view taken by the Honourable Supreme Court in a case reported in 1992 SCMR 1286. The relevant portion is reproduced as under:-- "But, he further argued the considerations when determining the question of 'cancellation' are different because subsection (5) of section 497, Cr.P.C. under which power is exercised, does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life and further even if the grant of bail is prohibited under subsection (1) of section 497, Cr.P.C. According to him the discretion left in the Court under subsection (5) of section 497, Cr.P.C. is pari materia with the principles which apply to the setting aside of the orders of acquittal. The proposition advanced by the learned counsel has prima facie force and also support of the authorities of this Court. Leave to appeal accordingly, is granted." As such in order to succeed the learned counsel is required to show that the order by which the bail was granted is perverse, no other conclusion could be drawn except the guilt of the accused or that there was material substance, which was not considered resulting in the miscarriage of justice. It may be noted that the- learned counsel did not make any submission on these lines, and therefore, I am of the considered view that the application for cancellation of bail has no merit and is liable to be dismissed. Taking all the above circumstances into consideration I am of the view that no cogent material is available on record to support the contention of the learned counsel for the applicant. Accordingly I do not find any merit in this application and the same is hereby dismissed. N.H.Q./M-81/K Petition dismissed.