' TASSADUQ HUSSAIN JILLANI, J.--- Petitioner-complainant seeks cancellation of ed to the respondent vide order, dated 21-12-2005 passed in Criminal Miscellaneous No,8685/B of 2005 by learned Lahore High Court in the case registered vide F.I.R. No,364 dated 13-11-2004 under sections 302/324/148/149, P.P.C., Police Station Karianwala for the triple murder of Aurangzeb, Muhammad Shaukat and Sarfraz Ahmed and for causing injuries on the person of Imran Shaukat son of Muhammad Shaukat.
2. The prosecution story as given in the F.I.R. Briefly stated is that on the fateful day at about 5-30 p.m. Complainant along with Aurangzeb, Muhammad Shaukat, Sarfraz Ahmed (deceased) and injured Imran Shaukat were proceeding towards their house after saying their Maghrib prayer when on the way they were attacked by Muhammad Nazir, Usman Nazir, Shafaqat Nazir respondent armed with fire-arms and two others, who it was alleged could be identified if they were made to appear before him. Muhammad Nazir raised Lalkara that the family of Aurangzeb be finished and whereafter Usman Nazir fired which hit Muhammad Shaukat and also hit Aurangzeb on the abdomen. The fire hit Sarfraz as well. Thereafter, Shafaqat Nazir respondent and Muhammad Nazir also fired which too hit Muhammad Shaukat, Aurangzeb and Sarfraz on different parts of their body. In the afore-referred firing Imran Shaukat also received injuries. All the afore- referred victims except victims except Imran Shaukat succumbed to the injuries and died, whereas Imran Shaukat was hospitalized. The motive alleged in the F.I.R. Was that on 12-11-2005 the complainant party had a little altercation with Usman Nazir etc. As the accused party had brought firearms in the mosque. However, the matter was patched up.
3. During investigation, it was found that although Muhammad Nazir and Shafaqat Nazir respondent were present at the spot but they did not cause any injury. Usman Nazir co-accused was found guilty in all the three investigations. Not satisfied with the police investigation, the complainant filed a private complaint in which admittedly all the three accused including the respondent have been summoned to face trial. The trial has commenced and three out of 16 witnesses have been examined. Imran Shaukat injured has also been examined and he has corroborated the story as given in the F.I.R.
4. Learned counsel for the petitioner-complainant seeks cancellation of ed to respondent on the ground that it was a broad-daylight occurrence in which all the three accused including the respondent were specifically named and a definite role was attributed to each one of them; that the F.I.R. , was lodged promptly and the role attributed to the assailants-accused is corroborated by the medical evidence, copies of which have been appended with the petition. He contended that the police had carried out dishonest investigation and having failed in his attempt to get a fair deal the complainant was obliged to file a private complaint in which all the accused have been summoned. The allegations levelled and the material collected during investigation clearly makes out a case against the respondent for an offence which falls within the prohibitory clause of section 497, Cr.P.C. And in a triple murder case it was not apt for the learned High Court to have allowed bail to the respondent. He further submitted that the case of the respondent was not at par with that of Muhammad Nazir who was allowed bail earlier by the High Court.
5. Referring to the misuse of ed to the respondent, learned counsel for the petitioner-complainant referred to the application made by the complainant before the trial Court alleging that the accused were holding out threats to the complainant party and that the prosecution witnesses be accorded protection.
6. Learned counsel for the respondent, on the other hand, defended the impugned judgment. He submitted that the principles for the grant of bail are distinct from the principles for cancellation of bail and once the learned High Court has exercised its discretionary jurisdiction in granting bail to the respondent, this Court may not interfere with the order unless the order is arbitrary, fanciful and is violative of the law laid down by this Court. He added that the role attributed to respondent was similar to the one attributed to Muhammad Nazir who was earlier allowed bail by the High Court and petition for cancellation of bail moved against him was not pressed before this Court by the complainant party and in view of the same it is not open for the petitioner to seek cancellation of ed to the respondent.
7. Learned Additional Advocate-General, however, supported the petition for cancellation of bail by submitting that the case of the respondent is not at par with that of Muhammad Nazir co-accused because what inter alia persuaded the High Court to grant bail to Muhammad Nazir was that he was father of the respondent and that he was hospitalized and the possibility could not be ruled out that the complainant had falsely implicated him to make the net wider.
8. We have considered the submissions made and have gone through the material collected by prosecution during investigation.
9. Commonality of certain features in roles attributed to co-accused Nazir and respondent accused may not be disputed. However, in the operative part of the ing order of the co-accused, the learned High Court was persuaded to extend indulgence on account of another circumstance i,e, the said accused had been operated upon and that he was hospitalized on account of his ailment. This ground was not certainly available to the respondent. We have also noticed that the nature of fire-arm injury received by the three deceased and the injured reflect certain variations i,e, qua the dimension as also the fact that there was blackening on the injuries received by Aurangzeb deceased and Imran injured and no blackening on others. This feature of the medical evidence, prima facie, indicates that the assailants could be more than one. We further note that Imran injured P.W. Has already been examined by the trial Court as P.W.2 and he has fully supported the prosecution case as given in the F.I.R. Ordinarily this Court does not interfere in the ing or refusing orders if the trial has commenced. However, this practice is merely a rule of propriety. In the facts and circumstances of this case, when the respondent is attributed specific role of causing fire-arm injuries on three deceased and when the complainant seriously doubts the fairness of investigation and complains of the same being partisan, the fact that he has filed a private complaint in which the trial Court has summoned the respondent to face trial, the allegations that there are attempts to suborn the prosecution evidence we are of the view that it was not a fit case in which the learned High Court should have granted bail to the respondent. That being so, this petition is converted into appeal and is allowed. The impugned order of the High Court is set aside and respondent is directed to surrender to the process of law.
Bail cancelled.