' SYED MUHAMMAD FAROOQ SHAH. J.---The instant application has been filed under section 497(5)
Cr.P.C. By the applicant/complainant Ali Ahmed Jamro wherein he has sought cancellation of bail granted to the respondents Nos. 2 to 5 by the learned Ilnd Additional Sessions Judge, Khairpur on 11-10-2012, in Crime No,114 of 2012, for an offence punishable under sections 302,149, 504, 311 P.P.C.
Registered at Police Station Gambat.
2. Succinct but relevant facts as per F.I.R. Lodged by complainant All Muhammad Jamro on 7-7- 2012 at 1800 hours at Police Station, Gambat are that his brother Dildar Ali aged about 23 years had given land to Qurban Ali alias Malang Jamro and his brother used to demand money back on which Qurban Ali alias' Malang and his brothers were angry. On the fateful day, complainant along with his brother Dildar Ali and his relative Nawab Ali went to the Mangoes garden and when reached at the land of Ghulam Ali Jamro where accused Qurban Ali alias Malang, Ghulam Shabir, Atta Muhammad, Saeed Khan, Hussain Dino duly armed with pistols came there and challenged them. Suddenly all accused persons fired upon Dildar Ali who received bullet arm injuries on his abdomen and legs, fell down and died instantaneously. On receipt of information police recorded the F.I.R. And started investigation, arrested accused. Qurban Ali and on completion of investigation submitted the challan of the case before Magistrate concerned, In charge sheet, the names of the respondents Nos. 2 to 5 were shown in column No,2. However, the learned Magistrate joined them as accused. The respondents Nos.2 and 3 were granted pre-arrest bail while respondents Nos.4 and 5 were granted post arrest bail by the learned IInd Additional Sessions Judge, Khairpur against which the present application has been preferred.
3. I have heard learned counsel for the parties and learned A.P.-G. Representing the State. Record has also been perused.
4. Learned counsel for the complainant at the very outset contended that respondents NOs.2 to 5 have committed an offence falls within prohibitory clause as all of them in prosecution of their common object committed murder of Dildar Ali. While explaining the delay in F.I.R. Learned counsel contended that the complainant first took the deceased to the hospital for treatment and then he went to Police Station and lodged the F.I.R. It is next contended that the respondents Nos.2 to 5 are nominated in the F.I.R. And at the time of incident they were armed with pistols and specific role of firing at deceased Dildar All is assigned to them by the complainant in F.I.R. And P. Ws. In their statements recorded under sections 161 and 164, Cr.P.C. Learned counsel further contended that foot prints of 5 accused persons were visible and 3 empties of TT pistols were recovered as per memo of wardat. It is submitted that medical evidence also supports the version of the applicant party, as per post-mortem reports deceased had sustained 5 fire arm injuries. Learned counsel for the applicant/complainant submitted that opinion of the police is not binding upon the courts therefore, learned Magistrate has rightly joined the respondents Nos. 2 to 5 while taking cognizance. In support of his contentions he has placed reliance on the following citations:--
(1) Amir v. The State, 2007 M LD 1749 Karachi.
(2) Mst. Wagma v. Suleman and 2 others, 2011 M LD 18 Peshawar.
(3) Mst. Ameeran Mai v. Muhammad Saddiq and another 2005 YLR 1676 Lahore.
(4) Waqas Ahmed and another v. The State 2005 SCM R 1496.
(5) Shoukat Illahi v. Javed Iqbal and others, 2010 SCM R 966.
(6) Mudasir Altaf and another v. The State 2010 SCM R 1861 (Supreme Court of Pakistan)
(7) Mst. Noor Habib v. Saleem Raza and others 2009 SCM R 786.
(8) Abdul Razzaq v. The State and Saeed Butt, NLR 1982 Cr.LJ 134.
5. Learned A.P.-G.. Supported the version/contention made by learned counsel for the complainant and stated that all the 5 accused/respondents with their common object caused the murder of deceased Dildar Ali while using their fire arm weapons
6. Conversely, learned counsel representing the respondents Nos. 2 to 5 contended that co- accused Qurban has admitted the commission of offence in his confessional statement, wherein he has exonerated the presence of his brothers/respondents Nos. 2 to 5. He has categorically stated that he had committed the murder of the deceased but the name of his brothers/respondents Nos. 2 to 5 has wrongly been added by the complainant just to take the revenge of murder of his brother. Learned counsel contended that on the basis of confessional statement of accused Qurban alias Malang, the names of the respondents Nos. 2 to 5 were put in column No,2 of the challan. Learned counsel further urged that all the 5 accused are brothers inter se and allegations against them is that they at the time of incident had directly fired with their pistols upon deceased Dildar Ali but the fire arm weapons have not been recovered from the possession of respondents Nos. 2 to 5. To support his contentions learned counsel placed his reliance on the cases viz. Maqsood Javed v. The State reported in 2001 PCr.LJ 2065, (2) Ahmed alias Ahman and 2 others v. The State 1994 PCr.LJ 898 Lahore (3) Hatim and others v. The State 1994 PCr.LJ 900 Karachi.
7. The facts and circumstances of the case-laws cited by learned counsel for the complainant, mentioned as Supra are quite different as in all those cases the accused did not confess the commission of offence and it is settled law that each and every criminal case is to be decided on its own peculiar circumstances and facts. Considerations for the grant of the bail are quite distinct from the considerations for the cancellation of bail, once bail has been granted by a competent Court of law while placing reliance on the judgments/orders delivered by superior courts, only strong and exceptional grounds are required for cancelling the same as apparently the order granting bail by the trial court if found illegal, erroneous, suffers from the gross irregularities or incorrect and resulted miscarriage of justice, the cancellation of bail may be sought. While considering the case of respondents Nos.2 to 5 for grant of bail the learned trial court was justified in extending benefit of grant of bail to the respondents Nos. 2 to 5. Though the names of the respondents appears in the F.I.R. For firing with their weapons in result of which the young brother of complainant has succumbed injuries but no incriminating weapon allegedly used in the commission of offence has been recovered from the possession of respondents. In such circumstances false implication of respondents Nos. 2 to 5 those are real brothers of Qurban alias Malang who confessed his guilt, cannot be ruled out. Sufficient justification and reasons have shown by the trial Court for grant of bail to them. No reasonable ground exists to connect the respondents Nos. 2 to 5 with the offence attracting the prohibitory clause particularly no motive whatsoever against the respondents Nos. 2 to 5 has shown by the complainant. There is no cavil to the proposition that in his confessional statement the accused Qurban Ali alias Malang has categorically involved himself in the commission of offence and stated that his brothers/respondents Nos. 2 to 5 did not participate in the commission of offence.
8. For the foregoing reasons, the captioned application for cancellation of bail is dismissed.
However, the observations made above are tentative in nature, shall not effect the merits of the trial.