' MUHAMMAD MOOSA K. LEGHARI, J.--- Through this criminal miscellaneous application, the applicant/complainant has prayed for cancellation of to respondents Nos.2, 3 and 4.
2. Brief facts leading to the filing of this criminal miscellaneous application, as per F.I.R. No,235 of 2004 lodged by complainant Muhammad Rizwan at Police Station Maripur under section 302/34, P.P.C. Are; that on receipt of a telephonic information on 23-12-2004 about the murder of some unknown person in Car No,K-1501 at Gate No,3, Maripur Road, A.S.-I. Danyal Adil reached at the spot and initiated proceedings under section 174, Cr.P.C. After inspection of the place of occurrence, he reached at hospital and got conducted postmortem of deceased. The cousin of the deceased viz. The complainant Muhammad Rizwan stated that he used to work with his deceased cousin Abid Nawaz and was residing in the same residence. In the morning of 23-12-2004 the deceased left his house to visit broker. At noon time the complainant rang at the office wherefrom he was informed that the deceased was murdered by firing and that his dead body was lying in Civil Hospital. On such information, the complainant reached the hospital. He lodged complaint against unknown persons for killing his cousin due to business rivalry. Such statement of the complainant was incorporated in 154, Cr.P.C. Book. During investigation, accused Rana Mushtaq and Zulfiqar were arrested on 1-1-2005 whereas accused Rana Muhammad Ilyas surrendered himself before the police and was accordingly arrested on 7-1-2005.
3. The respondents/accused persons moved bail application before the learned Sessions Judge, Karachi West which was dismissed vide order, dated 1-3-2005. Thereafter accused Rana Mushtaq and Rana Zulfiqar moved Bail Application bearing No,355 of 2005 before this Court which was dismissed as not pressed with the direction to the trial' Court to record the statements of the prosecution witnesses within two months. Subsequently, after the statements of the complainant and three witnesses were recorded, another bail application was moved by the accused persons which was allowed by the trial Court vide order, dated 19-9-2005. Present criminal application has been moved for cancellation of the by the trial Court.
4. Arguments have been heard.
5. It is contended by the learned counsel for the applicant/ complainant that after having been released on bail, the respondents/ accused have issued threats-of dire consequences to the eye- witnesses in case they depose against them. He specifically pointed out that on 31-8-2005 companion of the accused persons issued threats to the eyewitness Faisal Nazeer in open Court and such fact was brought in writing to the notice of the trial Court as well as concerned police.
Besides, three witnesses namely Ghulam Farid, Muhammad Latif and Sajid Ali were illegally taken into custody at the instance of the accused persons and when Ghulam Farid and Muhammad Latif accepted the demand of the accused persons not to depose against them, they were let off while the third person Sajid Ali was not released. Application in this respect was made by Ghulam Farid to the police. He contended that the accused persons are also pressuring the witnesses by filing false F.I.R against them. He has produced copies of such F.I.R According to him, in this way the evidence is being tampered with. Apart from above submission, it is also contended that the trial Court has granted bail to the accused persons only on the ground that despite the shots having been fired at the deceased very closely i.e. From the window of the car, no charring and blackening was found on the dead body during the post-mortem. According to him it amounts to deeper appreciation of evidence which was not warranted at bail stage whereas other pieces of evidence which supported the prosecution case were not considered by the trial Court. He also contended that there was no fresh ground available with the accused persons to repeat the prayer for bail.
6. On the other hand, learned counsel appearing for the respondents/accused persons contended that it is settled principle of law that for cancellation of by a Court, very strong and exceptional grounds are required which in the present case are not available with the complainant. According to him, it is not a fact that the bail has been granted only on the ground of non-availability of charring and blackening on the dead body during the post-mortem, although the accused had allegedly fired at the deceased from the window of the car in which the deceased was sitting. He referred to the impugned order wherein it was observed that it was admitted by D.D.A. That the police has examined Kamran Tariq, Kamal and Younus but they did not identify the present accused and in their 161, Cr.P.C. Statement they implicated two persons but given descriptions of only one culprit, that the alleged eye-witnesses Faisal Nazir and Abdul Rauf did not disclose to any private person or the police that they had witnessed the incident till their statements were recorded after a considerable time when the police issued notice to the complainant to produce evidence in the case. Learned counsel further contended that P.Ws. Faisal Nazir and Abdul Rauf are not trustworthy and they are planted witnesses, their statements having been recorded after 17 days of the alleged incident, that other P.Ws. Have not supported the prosecution case, that this is an unwitnessed incident and the F.I.R. Was lodged against unknown persons. He urged that the allegation of harassing the witnesses is false having been invented for the cancellation of bail. With regard to lodging of F.I.R. Against the witnesses, he submitted that it is the right of every person to lodge F.I.R. If a cognizable offence is made out.
' In support of his contentions, learned counsel for the applicant/ complainant has relied upon the following cases:--
(i) Rahim Bakhsh v. Shah Nawaz and another 2003 SCM R 1966;
(ii) Saleh Muhammad v. The State and another 1981 SCM R 993;
(iii) Aijaz Ali v. The State PLD 1981 Kar. 484; (iv) Sono Khan v. Sikandar and another 2000 PCr.LJ 614;
(v) Nazar Masih v. Yaqoob Masih and others 2002 PCr.LJ 662 and (vi) Muhammad Khan v.
Muhammad Ijaz and another 2004 PCr.LJ 1166.
' On the other hand, learned counsel for the respondents/accused has placed reliance on the following cases:--
(i) Mst. Shareefan Bibi v. Manzoor Hussain and others 2005 PCr.LJ 1008; (ii) Niamat Ali v. Ali Muhammad alias Mangta and 2 others 2005 PCr.LJ 424; (iii) Sher Muhammad Khan v. Muhammad Ashraf Khan Tareen and others 1991 SCM R 239;
(iv) Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCM R 231; (v) National Accountability Bureau v. Khalid Masood and another 2005 SCM R 1291; (vi) Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others 2005 SCM R 1539; (vii) Government of Sindh and 4 others v. Raeesa Farooq and 5 others 1994 SCM R 1283; (viii) Mehmood Ahmed and 3 others v. The State and another 1995 SCM R 127; (ix) Syed Saeed Muhammad Shah and another v. The State 1993 SCM R 550; (x)
Hazzaro alias Hazzaroo and others v. The State 1998 Cr.LJ 773 and (xi) Farman Ali v. The State 1997 SCM R 971.
7. Learned State counsel made no submissions except making a bare statement of adopting the arguments advanced by the learned counsel for the accused persons.
8. The arguments have been considered, the material placed on record has been perused and the principles laid down in case-law relied upon by learned counsel for the parties have been carefully examined with reference to the facts and circumstances of the case in hand.
9. At the very outset it may be stated that though the considerations for cancellation of bail are different from the grounds for grant of bail, yet in certain circumstances by a Court of competent jurisdiction can be cancelled. For example; if the same has been granted in capricious manner either without assigning reasons, or on the basis of perverse or invalid reasons, if the accused attempts to tamper with the evidence, if he hampers the investigation, if the accused commits or attempts to commit same offence or if he absconds after grant of bail. It goes without saying that each criminal case has to be decided keeping in view the facts and peculiar circumstances of that very case as no hard and fast rule has been laid down in respect of the matter of cancellation of bail.
10. It must be observed that the bail application of the applicants in the first instance was rejected by the trial Court on merits. The applicants filed an application for bail before this Court but the same was dismissed as not pressed. However, at the request of the learned counsel, trial Court was directed to record the statements of the prosecution witnesses within two months.
11. Since the bail application of the accused was dismissed on merits, therefore, all the grounds which were raised by them and/or which were available to them but were not raised, would be deemed to have been raised and rejected. The perusal of the order passed by the trial Court reveals that the trial Court proceeded to re-consider and reexamine the merits of the case which were not available to the applicants. Learned trial Court gave benefit of delay in recording the statements of the eye-witnesses by the Investigating Officer and contradictions in the ocular and medical evidence, thus, exceeded the legal limits as, such findings could only be recorded after the conclusion of the trial.
' Besides that, the trial Court wrongly and improperly in its order undertook deeper appreciation of evidence at bail stage. The trial Court observed in its order that two witnesses namely, Faisal Nazir and Abdul Rauf stated in their cross-examination that the accused fired at the deceased from window of the car from the steering side and the deceased was also sitting at the steering side. It was further observed that had that been so, it can be presumed that the fire has been made from the distance of less than one foot. However, it is admitted by the learned D.D.A. That the Medical Officer who conducted post-mortem detected no charring and blackening. Learned trial Court thus, concluded that this contradiction alone is sufficient to create a reasonable doubt in the evidence of two P.Ws. Namely Faisal Nazir and Abdul Rauf. From perusal of the above observations it is manifestly clear that the trial Court conducted elaborate sifting of evidence, which was not warranted at bail state, as it was beyond the contemplation of section 497, Cr.P.C. Case of Khalid Javed Gillan v. The State PLD 1978 SC 256 can be convincingly cited for reference.
12. Since the trial Court flouted the settled principles of law while granting the bail to the accused, apparently the discretion was not exercised judiciously and fairly and bail was granted in a capricious and perverse manner.
13. For the foregoing reasons, the application is allowed and the to the accused/respondents Nos.2, 3 and 4 by the trial Court is cancelled. Consequently they should be taken in custody.
14. The trial Court is, however, directed to take all effective steps to dispose of the case as expeditiously as possible, preferably within a period of three months from the date of communication of this order.
Bail cancelled.