This is an application for cancellation of bail moved by Piary Kandhro Who is complainant in the criminal case pending against respondent No 2.
2. The aforesaid application has arisen from the facts which are briefly stated as follows. The respondent No 2 was sent alongwith other co-accused to face his trial for the murder of Haji Allah Bux Kandhro. Pending conclusion of the trial, the respondent No 2 made application for his bail which was allowed to him vide order dated 22nd December, 1980 of the 2nd Additional Sessions Judge, Larkana. Being aggrieved by the said order, the petitioner has approached this Court for cancellation of the bail.
3. Mr. Abdul Razzak Soomro was heard in support of the application and Mr. Kazi Akhtar against it.
Mr. Amanullah Qureshi submitted his arguments on behalf of the State. It was contended by the learned counsel, for the petitioner that bail has been granted to the respondent No, 2 in total disregard of the principles of law and the material available on record. According to him the incident had occurred in a broad daylight and there was no question of mistaken identity.
Furthermore, he contended, the occurrence was promptly reported to the police and the names of the accused as well as the witnesses are disclosed in the F. I. R. He further contended that the authority (1980 P Cr. L J 391) relied upon by the learned Judge for granting bail to the respondent No, 2, is inapplicable in the instant case. He further argued that the accused dropped by the police have also been joined by the order of the trial Court and are facing trial like the accused challaned by the police.
4. The learned counsel for the respondent No, 2 has repelled the arguments of the learned counsel for the petitioners. The learned State counsel has also opposed the application for cancellation of bail, supporting the impugned order.
5. I have gone through the impugned order and considered it in the light of arguments addressed at the Bar. It appears to me that the orde is based on sound reasoning. There is nothing illegal about the order. I cannot agree with the argument that the authority reported as Bashir Ahmad v.
The State is inapplicable in the instant case. In the reported case four accused were named in the F. I. R. And the eye-witnesses too involved all the four of them, yet the police challaned only one accused dropping the remaining three. The learned Single Judge took the view that since accused named in the F. L R. Have not been sent up by police, the case of the accused who was challaned called for further enquiry. The learned counsel for the petitioner attempted to distinguish the above-reported case from the instant case inasmuch as that in the latter case the police had dropped the two accused namely Muhammad Akram and Haji Abdul Haleem mainly on the ground that they had taken the plea of alibi. Muhammad Akram in his application for pre-arrest bail had submitted Certificate of the Hospital of Quetta indicating that he was admitted in the said hospital during the relevant period. Obviously the plea of alibi taken by the accused Muhammad Akram is inconsistent with the ocular evidence which shows that the said accused had participated in the occurrence. In view of this inconsistency the case of accused Muhammad Akram calls for further enquiry. In other words it is to be determined whether the eye-witnesses who have implicated the accused have spoken truth or not. Obviously the same evidence cannot be accepted in respect of the accused including the respondent No, 2, without further enquiry.
Accordingly the bail of the said respondent could not be cancelled until such enquiry has been made. Thus the above authority relied upon by the learned trial Judge, is fully applicable in the present case. I cannot persuade myself to endorse the view of the learned counsel for the petitioner that the F. I. R. Has been promptly lodged. It would appear that the F. I. R. Was lodged at 10.00 a. m. Whereas it is disclosed in the postmortem notes that the occurrence bad taken place at 6.00 a, m Accordingly the argument of the learned counsel for the applicant has no force. The delay in lodging the F. I. R. Has remained unexplained.
6. The prosecution case rests on the evidence of the witnesses who are all interested. The other evidence which supports the ocular evidence is recovery of gun. But there is no report of the Ballistic Expert indicating that the said gun had been actually used at the time of occurrence.
7. It is also difficult to ignore that the respondent No, 2 was released on bail as far back as 22nd December, 1983 since which he has been enjoying the concession of bail uninterruptedly. It has been held time and c again that grant of bail is a rule and its refusal is only an exception. Of course as provided by section 497 (1), Cr. P. C. a person accused of an offence punishable with death, imprisonment for life or imprisonment for 10 years is not entitled to bail and his case falls within the exception. But once he is released on bail even his case will thereafter be handled in accordance with the general rule that is to say that so long he has not abused the concession of bail, he will continue to enjoy it. There is nothing to show that the accused has in any manner abused the concession of bail during the intervening period of nearly three years. There is another' factor which also deserves attention. The accused has remained in Jail for a period exceeding two years without conclusion of his trial. In view of clause (b) of the second proviso to subsection (1) of section 497, Cr. P. C., he would have been released on bail automatically at the expiry of two years statutory period. Unfortunately the trial has not been concluded, even though the incident had occurred three years ago on 30th November, 1980. It may also be noted that the application for cancellation of bail was not filed promptly. The bail was granted on 22nd December, 1980. But the application was filed after nearly 2i months. This shows that complainant has selected his own timing for moving for cancellation of the bail. The private party cannot be permitted in this way to harrass the accused whenever it suits him.. My attention has also been drawn to the fact that even against the two accused who were dropped by the police an d have since been joined in consequence of filing1 of the direct complaint, the trial Court has deemed fit to issue only bailable warrants although they are facing the same charge of the murder of the deceased like other co-accused.
8. The learned counsel for the respondent has referred to Muhammad Sadiq v. The State wherein bail was refused on the ground that it was not fair to go into the merits of the case particularly when the date has already been fixed and the trial was to commence shortly. He has ,also made reference to the case of Nazar Muhammad v. The State and another wherein it was held : "The provision regarding cancellation of bail cannot be made available to private parties to satisfy their grudges against each other or to use as a means of wreaking their vengeance. Of course in cases where there is reliable evidence that the accused was misusing the liberty to divert the course of justice the Court could be competent to deprive him of that privilege. I am, therefore, clear in my mind that the reports constitute merely allegation by private individuals, the veracity of which was not above board as no evidence was produced in support of the facts before the learned Sessions Judge."
9. In the case of Shahid Arshad v. Muhammad Naqi Butt and 2 others the Supreme Court on being informed by the State counsel that enquiry proceedings were likely to conclude soon, refused to interfere with the High Court's order disallowing bail to the respondent. The High Court nevertheless subsequently granted bail to the respondents. It was observed.
"In these circumstances although we are not happy about the order passed by the learned Single Judge of the High Court, we do not think it advisable to interfere with his order at this stage. If at any time any one of the said two respondents misuse the privilege of bail it will be open to the petitioner to approach the High Court for cancellation of bail."
10. In the case of Khalid Javid v. The State the Supreme Court expressed its views as to whether assessm ent of evidence should or should not be made at the stage of bail in the following words :- "Now as bail has to be allowed or rejected on .The basis of this material, it follows that the Court has to make a tentative assessm ent of its evidentiary value in order to decide a bail application, the more so, as the section does not in terms contained any restriction on the Court's power to assess the evidentiary value of the material produced before it."
11. For the foregoing reasons I see no justification to cancel the bail. Accordingly the application was dismissed by short order for reasons to be recorded later on. Above are the reasons for the said Order. 1980 P Cr. L J 391 1980 SCMR 203 1977 P Cr. L J 277 1976 SCM R 360 PLD 1978 SC 256