' HASAN FEROZ, J.---By this order I intend to dispose of above application seeking cancellation of pre-arrest bail granted on 18-8-2011 by the learned Sessions Judge Malir, Karachi and confirmed by the learned 11nd Additional Sessions Judge, Malir 20-9-2011 in Crime No,504/2011 P.S. Sachal, under sections 302/34 P.P.C.
' Brief facts as narrated in the F.I.R. Are that the complainant Imran Khan attended the P.S and stated that on 1-8-2011 at 9:00 p.m. Night was watching the TV in my house along with my younger brother Farhan Hussain cousin Zulifquar Ali and family were also busy in talking with my elder brother Khalid Hussain one by one from the mobile phone of Farhan who is settled in USA. The main door of the house was opened. The children were playing in the street. The security arrangements of the bungalows are also safe/sheltered. Guards were always remain careful. Suddenly at 9:00 p.m night the husband of my maternal cousin Gohar Khan Magsi who is running Brivio Security Company in Bhittaiabad, along with two armed persons entered into my house. On reaching: Gohar Khan Magsi started calling my brother Farhan Hussin and Gohar Khan Magsi fired 5 bullets on my brother Farhan Hussain with intention to kill him by his pistol, for which three fires hit my brother Farhan Hussain and he expired inside the home by sustaining the injuries. Two other persons accompanied with Gohar Khan Magsi pointed the arms upon all family members. After firing and committing murder of Farhan Hussain, Gohar Khan Magis runaway from the scene with his other companions by closing the door from outside. Earlier on 28-7-2011 the day of Thursday Gohar Khan Magsi threated my mother by saying that if you do not agree to marry your daughter with me I shall kill Farhan Hussain. Commonly Gohar Khan Magsi always used to threat to my mother and brother Farhan Hussain from Phone No,0300/0321-922997. On threats the security management of bungalows was also bounded strictly by saying that not to allow any person to come our house without permission. But inspite of that the security management did not comply with. My complaint is against Gohar Khan Magsi and his two armed persons who by firing with arms killed my brother Farhan Hussain.
3. Accused above named has been granted pre-arrest bail on 18-82011 which was confirmed vide order dated 20-9-2011 which has been assailed through this application.
4. The learned counsel for the applicant/complainant has urged that specific role of causing fire arms injuries has been attributed to accused by the eye-witnesses and that no mala fide could be established at this stage by the accused and only the defence plea has been considered by trial Court which is not permissible at this stage of pre-arrest bail, so also the vague managed of entry No, 41 of P.S. Sachal cannot be made as reliable consideration as it has been fabricated with design to convert the murder into a dacoity incident and thereby extending help to alibi.
5. Learned counsel for the applicant has contended in support of prosecution version that the deceased has been killed by the accused who have entered into the house of the deceased, complainant and his cousin namely Zulfiqar Hussain and other family members who at that time were talking to their brother living in USA on mobile phone of deceased and door of the house was open when at 9.00 p.m. The accused along with two armed persons entered into the house of the applicant/complainant and made five shots from firearms 3 of which, hit the deceased. Learned counsel for applicant/complainant relied on 2005 YLR 1979. 2007 YLR 1877. 2006 YLR 3114.
6. As against this the learned counsel for the respondent/accused has contended that the accused has rightly been granted pre-arrest bail as he has been falsely implicated in a murder of a relative and there had been enmity between the parties, therefore, in a matter of dacoity wherein dacoits have killed the deceased the respondent/accused has falsely been implicated who was rather ill on that date and has also produced such medical certificate claiming his alibi and innocence. Learned counsel has relied upon 2006 SCM R 66, 2009 SCM R 1202 and 2008 SCM R 1715.
7. I have in my view 2005 YLR 1979 wherein concession of bail could not be granted to accused who had been directly nominated in the F.I.R. With specific tole of causing death.
8. I have also in my consideration that in 2006 YLR 3114 it has been held that accused has been specifically nominated in F.I.R. As member of accused party had perpetrated alleged offences and definite allegations have been levelled against them where it revealed that accused had caused firearm injury.
9. I have in my consideration 2007 YLR 1877 wherein offence alleged against accused fell within the ambit of section 497(1), Cr.P.C., bail was refused.
10. However the reliance placed by learned counsel for the respondent/accused 2006 SCM R 66 relating to cancellation of bail and principles enshrined therein are under my respectful view that if the Court while granting bail, has not violated the principles laid down for grant of bail its cancellation is not proper, mere fact that there could be another opinion of the matter than the one formed by the Court on the basis of tentative assessment of the evidence would not be a sufficient ground to cancel the bail, if in the light of the facts of the case it can be found to have qualified the test of further inquiry into the guilt or innocence of an accused in terms of subsection
(2) of section 497, Cr.P.C. Main consideration for grant of bail under subsection (2) of section 497, Cr.P.C. Is that if the Court on the basis of tentative assessment of evidence forms an opinion that prima facie reasonable grounds existed to believe that accused has not committed an offence with which he was being charged, he would be allowed bail by virtue of subsection (2) of section 497, Cr.P.C. As of right .
11. In 2009 SCM R 1202 strong and exceptional grounds were required for cancelling the bail granted by a Court of law and the principles laid down with regard to cancellation of bail as distinct from grant of bail require strong and exceptional grounds.
12. The reliance placed on 2008 SCM R 1715 is also in my view wherein strong and exceptional grounds were required for cancellation of bail. Thus keeping in view the dictum of superior Courts I have assessed the material on record.
13. I have in my perusal the order passed by the learned II Additional Sessions Judge, who at the stage of confirming the pre-arrest bail has accepted the version of the accused and granted him pre-arrest bail. I am well conscious of the legal aspect that in a matter of bail before arrest, accepting the version of accused and discarding the version of the prosecution thereby assessing this matter of two versions without taking into consideration the statements of prosecution eye- witnesses recorded under section 161, Cr.P.C. Seems to me beyond the scope of judicious assessing of evidence at the time of pre-arrest bail. I am also clear in my mind that further inquiry into the guilt of the accused inter alia mala fide and ulterior motives can be assessed in bail before arrest matter however, two versions arising at this pre-arrest bail stage as to whether the offence was the outcome of dacoity or it was a murder with pre-meditated design to kill the deceased cannot be brushed aside in presence of the statements of eye-witnesses whose statements have been recorded by police that two days before the incident the accused came in their house and threatened their mother to give hand of her daughter to respondent/accused, otherwise he will kill Farhan Hussain (deceased) which reflects the mens rea of accused which the learned trial court had not taken into consideration and simply on the basis of version of dacoity instead of murder confirmed the bail before arrest which at this stage of the matter seems to me not based on correct appreciation of facts as well as law.
14. I have in my view that exceptional grounds are required for the cancellation of bail and upon my assessing the impugned order, it seems to me strange that instead of assessing the evidence in its true aspect at this prima facie stage, counter version has been considered for the purpose of further inquiry which is not only improper but unjust as well.
15. I have in my consideration that in the matter of cancellation of bail strong and exceptional grounds are required. I have also in my consideration that principles for grant and cancellation of bail are different as exceptional grounds are needed for cancellation of bail as it also pertains to the liberty of a citizen. However, the perusal of the record leads to prima facie conclusion wherein evidence of the complainant version and the P. Ws. Available on record shows sufficient ground that the accused was connected with the commission of offence and in juxta position the weak alibi which shows the presence of the accused in hospital; requires proof on evidence, therefore, the weak form of the alibi being illness of the accused and admission in hospital could only be ascertained during trial and at this stage of pre-arrest bail would not make the case for grant of pre-arrest bail in presence of the prosecution version of reasonable grounds, therefore the discretion exercised by the trial court granting pre-arrest bail to the accused is not tenable under the law.
16. In view of the above I allow the application for cancellation of bail of the accused granted by the learned IInd Additional District Judge Malir, Karachi and therefore the bail stands cancelled.