1. The present application has been filed for cancellation of bail granted to the respondent No,1 by the learned Vth Additional Sessions Judge, Shikarpur.
2. The facts giving rise to the present application are that brother of co-accused was murdered at Khairpur. The deceased was being suspected of causing the said murder. In this background it was alleged that on 7-9-2002 at 2 p.m. the complainant alongwith deceased and P.Ws. were going to their village. When they reached near Satta Bazar Masjid, the respondent No,1 alongwith six other persons armed with pistols and other weapons came there on which the applicant gave 'Hakal' and told them that the deceased Manik had murdered their man, therefore, he would not be spared. Then the respondent No,1 instigated the other co-accused not to spare Manik on which the co-accused Hamzo fired from his pistol which hit the deceased. The deceased tried to run, but respondent No,1 fired from his pistol which hit him on his back, who fell down on the ground.
3. Thereafter the accused ran away. The complainant party went to the deceased where they found him lying dead. Then the complainant went to police station where he lodged the report at 2-30 p.m. within half an hour of the incident. A bail application was moved before the trial Court, where bail was granted to the respondent No,1 on the ground that it was yet to be determined as to which accused caused fatal injury to the deceased and the question of vicarious liability was also to be decided at the time of trial vide order dated 3-12-2002. The applicant was dis-satisfied with the said order, therefore, he has filed the present application for cancellation of bail.
4. I have heard the Advocate for the applicant, respondent No,1, A.A.-G. for the State and perused the record of this case very carefully.
5. The learned Advocate for the applicant has stated that the F.I.R. was lodged within a period of half an hour in which the name of the respondent No,1 has been mentioned with specific part of causing fire-arm injuries to the deceased, therefore, the respondent No,1 is not entitled for the concession of bail. He has relied upon the following case-law:--
(1) Sono Khan v. Sikandar 2000 PCr.LJ 614.
(2) Muhammad Nazir Awan v. Muhammad Aamer Baig 1997 PCr.LJ 1393.
(3) Taiba Bibi v. Abdul Latif 1997 PCr.LJ 1957.
6. On the other hand, the learned Advocate for the respondent No,1 has stated that the cancellation of bail application should have been filed before the trial Court and after dismissal of the said application the applicant should have filed the application before this Court. He has further stated that the vicarious liability is 'yet to be determined and that too at the time of the trial; that the bail granted to the applicant cannot be cancelled without `valid grounds and under exceptional circumstances only. He has relied upon, a case of Mazhar Mehmood v. Basit reported in 1997 SCM R
915. He has further stated that the witnesses and the complainant have improved their case in their further statements as they have given names of un-identified three persons and also assigned them the role of firing at the deceased, therefore, he has stated that there is no illegality in the impugned order.
7. The learned A.A.-G. has stated that once respondent No,1 is granted bail then it can only be cancelled on exceptional grounds, but in this case no such grounds exist and that the complainant and P.Ws. have improved their case in their statements, therefore, he supported the impugned order. I have given due consideration to the arguments and find that the F.I.R. of this incident was lodged within half an hour of the incident in which the name of the respondent No,1 with specific role of causing fire-arm injuries to the deceased has been mentioned. the deceased had received two fire-arm injuries as per medical report. The said injuries have been attributed to co-accused Hamzo and the respondent No, 1 . As such the statement made in the F.I.R. is fully supported and corroborated by the medical evidence. The deceased had received one firearm injury on his neck, which was attributed to the co-accused Hamzo and it is alleged that thereafter the deceased tried to run and then the present respondent fired at him, which hit him on his back. From the facts of the case and conduct of the respondent No,1, it is clear that first he instigated the co-accused to commit the murder of the deceased and on the said instigation the co-accused Hamzo fired from his pistol at the deceased and when the deceased started running, then the respondent No,1 himself fired upon the deceased, which hit him, apparently with a view that the deceased should be killed and should not run away from the Wardat. All these facts indicate that the respondent No,1 had fully participated in the commission of this crime with full knowledge and assistance, therefore, strong case is made out against the respondent No,1 for his involvement in the present case.
8. The trial Court had granted bail to the respondent on the ground that it was yet to be determined as to which of two injuries was fatal. The said observation is against the facts of the case as the deceased had died on account of the said injuries and there is specific allegation against the respondent No,1 of causing fire-arm injuries to the deceased which hit him on his back. The intention, of the respondent No,1 appears to be very clear that he wanted to murder him, because when the deceased tried to run away from the Wardat after receiving the injuries to save his life, the respondent No,1 fired from his' weapon at the deceased which hit him and he fell down on the ground. As such the deceased died on account of the injuries caused by both the accused, therefore, the respondent No,1 shared common intention with the co-accused. Thus it appears that he is equally responsible for committing the murder of the deceased.
9. As regards the argument of the learned Advocate for the respondent No,1 that first cancellation of bail application should have been filed before the trial Court and then the said order should have been challenged before this Court. In the present case, the bail was granted by the trial Court and the said order has been challenged before this Court, therefore, the present application can be filed to challenge the said order.
10. As regards the argument that the witnesses had improved their case during their further statements. It is pointed out that the improvement, if any, made by the witnesses are with regard to the involvement of the co-accused, who were not identified at the Wardat. A bail application was moved before the trial Court by the said accused persons. The trial Court after considering the material available on the record, granted bail to them. However, the said improvement requires deeper appreciation of evidence which cannot be undertaken at this stage. From the facts and circumstances of this case, a prima facie case has been made out against the respondent No,1, therefore, he is not entitled for the concession of bail.
11. Under these strong circumstances, the impugned order is set aside. The bail granted to the respondent No,1 is cancelled. The respondent No,1 is present in Court, he is taken into custody and remanded to judicial custody with direction to the jail authorities to produce him before the trial Court on the date of hearing after obtaining such date from the Court.
12. The observations made in this order are tentative in nature, which shall not come in the way of trial Court at the final stage.
13. The application is allowed.