' ABDUL HAMEED DOGAR, J.--- Respondents Muhammad Ismail and Ali Gul were granted bail by a learned Judge in Chambers of High Court of Sindh, Circuit Court, Larkana, vide orders, dated 12-6- 2002 and 27-9-2002 respectively whereas petitioner Lutuf Ali was declined the concession of bail vide order dated 21-4-2003.
2. Complainant/petitioner Nazir Ahmed seeks cancellation of bail through Criminal Petitions Nos.73/K and 127/K of 2002. As regards Criminal Petition No,84/K of 2003 the same has been filed by petitionerLutuf Ali an accused and has sought bail after arrest against the order, dated 21-4-2003.
3. Briefly stated, the facts of the case of the prosecution are that complainant party own 20 acres agricultural land in village Wandh Ali Muhammad Kartio. Respondents Ali Gohar and Muhammad Ismail had asked the complainant, to sell out the same to them which was declined. Resultantly, they being on inimical terms shifted from that village and started residing in Mohalla Pir Girghal Shah Noadero. On 21-2-2001 complainant with his father Allah Rakhio, Ali Khan, Muhammad Hashim, Bashir and Bashir Ahmed had gone to the hotel of Mashooq Ali Bhutto to take tea and wre sitting there on separate benches when at about 8-00 p.m. Seven armed persons emerged there who were identified in the light of bulbs to be respondents Ali Gohar, Muhammad Ismail and co- accused Ali Gul, Gul Hassan, Lutuf Ali, Dilawar and Hidayatullah, all Narejo by caste. All of them were armed with guns except accused Hidayatullah who was having hatchet. Respondent Muhammad Ismail instigated' the others to take revenge and consequently respondents Muhammad Ismail, Ali Gul, accused Ali Gohar and Gul Hassan, directly fired from their guns on complainant's father, namely, Allah Rakhio which hit him Petitioner Lutuf Ali, respondent Muhammad Ismail and accused Dilawar fired at his uncle Ali Khan which hit him due to which they cried and both fell down on the ground. Accused Hidayatullah inflicted hatchet blows to Muhammad Hashim. Whereafter, all of them, while firing in the air and raising slogans ran away. Thereafter, complainant found his father Allah Rakhio and uncle Ali Khan having sustained fire-arm injuries on head, left ear, left shoulder, chest and other parts of their bodies and were found dead. His cousin Muhammad Hasham had sustained hatched injuries on head and left leg under ankle and .Was bleeding and was unconscious. Respondents Muhammad Ismail and Ali Gul, petitioner Lutuf Ali, and accused Gul Hassan, Ali Gohar Hidayatullah were sent up to face trial whereas accused Dilawar was declared proclaimed offender.
4. We have heard Mr. Mazhar Ali B. Chohan, learned Advocate Supreme Court for Nazir Ahmed petitioner, Mr. Nuruddin Sarki, learned Advocate Supreme Court for petitioner Lutuf Ali and respondents, namely, Muhammad Ismail and Ali Gul whereas Qazi Khalid Ali, learned Additional.
Advocate-General Sindh on behalf of State at length and have gone through the record and the proceedings of the case in minute particulars.
5. Mr. Mazhar Ali B. Chohan, learned Advocate Supreme Court for petitioner Nazir Ahmed mainly contended that the learned High Court has wrongly granted bail to respondents Muhammad Ismail and Ali Gohar who, according to the case of the prosecution, have been assignedspecific role of firing at both the deceased, namely, Allah Rakhio and Ali Khan which factor is fully corroborated by the medical evidence. Grant of bail only on the ground of alibi that the respondents at the relevant time were available in another village in a marriage ceremony was hardly a convincing ground for grant of bail. It even cannot be a plea of alibi in the eye of law.
6. On the other side, Mr. Nuruddin Sarki, learned Advocate Supeme Court contended that respondents Muhammad Ismail and Ali Gul were granted bail mainly on the ground that the prosecution, irrespective of direction issued by the learned High Court, could not conclude the trial.
7. As regards petitioner Lutuf Ali, Mr. Nuruddin Sarki, learned Advocate Supreme Court urged that he too is entitled to the concession of bail on the rule of consistency.
8. Qazi Khalid Ali, learned Additional Advocate-General, Sindh, adopted the arguments advanced by Mr. Mazhar Ali B. Chohan, learned counsel for petitioner-complainant Nazir Ahmad. However, he did not support the order of granting bail to respondents, namely, Muhammad Ismail and Ali Gul and also vehemently opposed to grant bail to petitioner Lutuf Ali.
9. It is pertinent to note that respondent Muhammad Ismail was declined bail by learned High Court vide order, dated 8-5-2001 but at the same time, issued directions to the trial Court to make all possible efforts to conclude the trial within one month. As regards, the delay in conclusion of trial, the case diaries show that it has occasioned because of the adjournment sought on behalf of the accused. Even last diaries, dated 31-1-2004 and 24-2-2004 mention the presence of witnesses but the case was adjourned at the request of the counsel of the accused.
10. No doubt, it is well-settled principles of law that for cancellation of bail, strong and exceptional grounds are required. It is to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice. Considering the reasons for grant of bail on the above touchstone, we are of the considered opinion that the learned High Court was not at all justified to extend benefit of grant of bail to respondents Muhammad Ismail and Ali Gul.
They are not only attributed specific role of firing at the deceased, namely, Allah Rakhio and Ali Khan but their participation is corroborated by presence of so many fire-arm injuries on the persons of deceased. Reference can be made to the case of Shahnawaz and 2 others v. The State and another PLD 1994 SC 65, wherein this Court maintained the order of cancellation of bail passed by the learned High Court as it was found arbitrary and capricious in nature.
11. Petitioner Lutif Ali is also not entitled to the concession of grant of bail as, according to the case of prosecution, he too actively participated in the commission of the offence and caused fire-arm injuries to the deceased.
12. Accordingly, Criminal Petitions Nos.73/K and 127/K of 2002 are converted into appeals and are allowed, orders, dated 26-6-2002 and E 27-9-2002 are set aside and bail granted to respondents, namely, Ali Gul and Muhammad Ismail is cancelled. Similarly, no ground for grant of bail to petitioner Lutuf Ali is also made out, as such, Criminal Petition I No,84/K of 2003 being devoid of force is dismissed and leave to appeal refused.