2017 PLP 131 (YLRN)

ABDUL RASOOL MEMON, J

Through this common order I would like to dispose of the above titled two bail applications arising out of same crime No. 33/2014, of Police Station A, Sundrani, under sections 302,109,337-H (2), 34 P.P.C. Bail Application No.356 of 2015 of applicants/accused Abdul Hameed, Lal Bux, Talib Hussain, Muhammad Arif, Sadam Hussain and Muslim is for post arrest bail.

2. Earlier, after cancellation of pre-arrest bail of these applicants/accused except Rasool Bux were granted post arrest bail by learned IInd Additional Sessions Judge, Gotki (Mr. Manoo Mal Khagaija), vide his order dated 06.12.2014. Later on his successor Mr. Sultan Ahmed Leghari on an application of complainant, cancelled their bail through his order dated 30.4.2015 and Bail Application No.692 of 2014 has been filed by applicant/accused Rasool Bux who has been granted ad interim pre-arrest bail by this Court vide order dated 01.11.2014 and is fixed for confirmation or otherwise.

3. As per FIR on 29.7.2014, all the applicants/accused with their common intention on the instigation of accused Rasool Bux after separating deceased Shahmor from his father complainant Shah Nawaz and two witnesses on Link Road, Jaman Waso near tubwell of Jamaluddin Mirani, turn by turn fired shots which hit deceased on various parts of his body, who died instantly. It all allegedly happened due to previous enmity over murder of one Hameer son of Moula Bux Chachar. After autopsy dead body was handed over to complainant, then who went and lodged the FIR.

4. Heard M/s. A.R. Farooq Pirzado and S. Mushtaque Hussain Shah learned counsel for the applicants/accused, Mr. Abdul Rehman Kolachi learned Assistant Prosecutor General Sindh for the State and Mr. Umedullah K. Ghoto, learned advocate for the complainant.

5. Learned counsel for the applicants/accused by relying upon the cases reported in PLD 1984 SC 192, 2004 PCr.LJ 116, 2001 YLR 1181 and 1984 PCr.LJ 523 has argued that the order passed by the learned trial Judge regarding cancellation of bail of the applicants/accused holding that his Predecessor had wrongly granted post arrest bail to them, is not sustainable in law, as only appellate court can cancel the bail on merits and not by the trial Court.

6. As against these contentions, learned advocate for complainant and A.P.G., have contended that the trial Court was fully competent to cancel the bail of the applicants/accused and have relied upon cases reported in PLD 1967 SC 293 and 1976 PCr.LJ 224.

7. I have considered the arguments advanced by the parties counsel and have gone through the citations relied upon by them. There is no cavil with the proposition that the court granting bail can cancel the bail, but it can only order where a ground accrued after grant of bail, such as after release on bail, misuses the same, interferes in the trial proceedings, extends threat to the witnesses or hinders in conclusion of the trial. The trial Court cannot cancel the bail on merits granted by it. For cancellation of bail granted without jurisdiction or having been passed without observing the mandatory provisions of law or the dictum laid down by the Superior Courts, only appellate court has jurisdiction. In citations relied upon by the complainant's counsel, no where it is held that trial court can cancel the bail already granted on merits. In the case in hand learned court has cancelled the bail, already granted to the applicant/accused on merits by re-considering the same evidence. In the circumstances, the citations relied upon by the applicants' counsel have full application to this point and contentions raised by them in this regard carry weight.

8. On the merits of these applications. the learned counsel for the applicants/accused have argued that the applicant Rasool Bux is father of co-accused/applicants Talib Hussain, Muhammad Arif and Sadam Hussain and their entire family has been implicated in this case falsely with mala fide intentions due to admitted enmity; that during investigation all the applicants/accused were declared innocent; that FIR is delayed by six hours which shows due deliberations and consultations in lodging it; that the applicants/accused are not named in the Roznamcha entry No. 11, dated 29.7.2014, except applicant Talib, containing the first information of the alleged incident. In presence of admitted enmity and non-mentioning their names in initial report recorded in roznamcha, mala fide of complainant cannot be ruled out; thus their case falls within the ambit of further enquiry. They have placed reliance on the cases reported in 2014 SCMR 1762, 2010 SCMR 64, 2005 SCMR 784, 1997 SCMR 947, 1995 SCMR 301, 1993 SCMR 1992, 1982 SCMR 440, 1986 SCMR 1978, 1985 SCMR 2018, 1984 SCMR 2161, 2014 YLR 2148, 2013 PCr.LJ 487, 2010 YLR 467, 2010 SCMR 1178, 2011 PCr.LJ 1580, 2005 MLD 1267, 1996 PCr.LJ 242, 1989 PCr.L.J. 1910, 1988 PCr.LJ 586 and 1985 SCMR 1949,

9. On the other hand, learned advocate for the complainant and learned A.P.G. have vehemently opposed these bail applications on the grounds that all the applicants/accused are nominated in FIR with specific role of causing fatal injuries to deceased and applicant/accused Rasool Bux was in commanding position to instigate them; that the alleged delay in FIR has been fully explained and that mere placing names of the applicants/ accused in column II of challan and issuance of N.B.Ws. against them was no ground for bail, therefore their bail has rightly been cancelled by the learned trial Court. In support of their contentions, they have relied upon the cases reported in 2014 SCMR 1591, 2011 SCMR 1606, 2010 SCMR 576, 2010 SCMR 966, 2009 SCMR 427, 2009 SCMR 786, 2007 SCMR 482, 2004 SCMR 709, 2003 SCMR 68, 1995 SCMR 1765, 1996 SCMR 555, 1991 SCMR 1849, 1987 SCMR 788, 1977 SCMR 46, 1976 SCMR 51, PLD 2015 SC 66, 242 and 250, PLD 2015 SC 66, PLD 2014 Sindh 538, SBLR 2014 Sindh 1272, PLD 2006 Kar. 285, PLD 2003 Crl. cases 600, PLD 2001 SC 107, PLD 1997 SC 545, PLD 1995 Karachi 326 and PLD 1990 SC 83.

10. Admittedly, both the parties are on inimical terms. The incident is day light on a thoroughfare but no independent witness has seen the alleged incident except the brother and relatives of the complainant. In the FIR all the seven injuries are shown to have been sustained by deceased while standing, though it is impossible that receiving such an injury on the skull went through and through the person could continue to stand further to sustain other injuries from head to knee. It also looks very strange that all the shots have been shown to have fired one by one each from separate KK rifles which is automatic usually fires burst, therefore, the FIR on the face of it requires strong evidence to prove the story given therein. Apart from above, all the applicants/accused have been exonerated during the investigation due to insufficient evidence and judicial confession made by accused Bhai Khan and Muhammad Hanif, admitting therein to have committed the murder of deceased in such circumstances the case of the applicants/accused requires further inquiry. With profound respect all the citations relied upon by the learned counsel for the complainant and the A.P.G. have no relevant application so for the facts and circumstances of this case are concerned.

11. In view of the above facts and circumstances, the interim pre-arrest bail already granted to the applicant Rasool Bux is hereby confirmed on the same terms and conditions on which he was admitted to interim pre-arrest bail and applicants/accused namely Abdul Hameed, Lal Bux, Talib Hussain, Muhammad Arif, Sadam Hussain and Muslim are granted bail subject to furnishing solvent surety in sum of Rs.300,000/- (Rupees three hundred thousand only) each and P.R. bond in the like amount to the satisfaction of trial Court. Aforesaid bail applications stand disposed off in the above terms. WA/R-8/Sindh Bail confirmed.