1. ' This is an application for cancellation of bail granted to respondent Dr. Muhammad Younus Soomro by Mr. B.G.N.Kazi the then Sessions Judge, Karachi on 9-12-1975.
2. ' The brief facts appearing from the F.I.R. Lodged on 24-11-1975 are that complainant, viz, injured Dr.Abdul Ghani, who was working in the E.N.T. Ward of the Civil Hospital was in the Operation Theatre at 2-00 p.m. When the respondent came there and called him out of the operation theatre.
3. The F.I.R. States that complainant Dr.Abdul Ghani and Dr.Haroon Zafrullah came out of the operation theatre and found respondent Dr.Muhammad Younus Soomro along with one other person standing there. While Dr.Soomro had a pistol the other person had a clip. It is stated that Dr.Muhammad Younus Soomro started firing at complainant which struck him on the left thigh, while the companion of Dr.Soomro struck him with the clip on the right side of the head. In regard to the motive it is stated in the F.I.R. That the wife of Dr. Muhammad Younus Soomro was a doctor working in the ward along with Dr.Abdul Ghani and there were some altercations due to the handling of one patient but the matter was patched up and settled. It is stated that respondent Dr.Muhammad Younus Soomro attacked complainant Dr.Abdul Ghani because of such grievance.
4. ' The respondent Dr. Muhammad Younus Soomro voluntarily appeared before the Sessions Judge, Karachi and filed Criminal Bail Application No,4180 of 1975 for grant of bail before arrest. By an order dated 9-12-1975 the interim bail already granted by the Sessions Judge was also confirmed.
5. Aggrieved by such order of the Sessions Judge complainant Dr.Abdul Ghani filed an application before this Court for cancellation of bail on 11-12-1975. This application came up before me on 19-1- 1976 when it was adjourned and one of the grounds for adjournment as stated by the Advocate for the applicant was that there was a likelihood of his withdrawing the application for cancellation of bail. The case was adjourned and was again placed before me on 2-2-1976 when the Advocate for the complainant Dr.Abdul Ghani and the complainant himself were absent. The Assistant Advocate-General who appeared before me had made a statement on that date that he had been informed by one Nazir Ahmad (the person who had filed an affidavit in support of the application for cancellation of bail) that he had been instructed to withdraw this application. I had in such circumstances also observed in my order as follows:- ' Be that as it may, since the petitioner and his Advocate are called absent, this application is dismissed. I have also considered whether on the facts, this case should be taken on the revisional side but I find no compelling reasons which might pursuade me to take action on the revisional side in this Court."
6. ' This application was dismissed.
7. ' The respondent had been awarded a scholarship by the World Health Organization for further studies in the United Kingdom and he was intent upon leaving Pakistan. Admittedly the charge- sheet had also not been received in the Court. It seems the respondent had made efforts to obtain permission of the Government to leave Pakistan in spite of the case which, as stated, had not been sent upto Court for trial. In that context a letter dated 24-1-1976 signed by the Secretary of the Government of Sind in the Home Department is relevant. In this letter it is stated that respondent Dr. Muhammad Younus Soomro was involved in a case under section 307, P.P.C. The next sentence is that "the case is not being challaned." Further, the letter states that since respondent Dr. Younus Soomro has received World Health organization Fellowship and has to go abroad a passport may be issued in his favour. In short, Home Secretary stated that he has no objection to the respondent Dr. Younus Soomro leaving Pakistan.
8. ' It is admitted case that Dr. Younus Soomro had left Pakistan and went away to United Kingdom. It may be stated that the respondent carried out his studies, in U.K. And was called to the Fellowship of the Royal College of Surgeons and he also did some job in the United Kingdom. The respondent ultimately returned to Pakistan in March, 1984.
9. ' The respondent Dr. Muhammad Younus Soomro has actually appeared before the Additional Sessions Judge, Court No,7, Karachi where his case is now pending. The Additional Sessions Judge has not taken him in custody and allowed him to continue on the same bail which had been granted as stated above by Mr. B.G.N. Kazi, the then Sessions Judge, Karachi. The complainant Dr. Abdul Ghani felt aggrieved and he has filed this application for cancellation of bail.
10. ' I have heard Mr. M.A. Latif who has drawn my attention to case-law governing the grant or refusal of bail before arrest. As it is, bail before arrest was granted in 1975. An application for cancellation of such bail was made in this Court and for some reason it was not pressed by complainant Dr. Abdul Ghani so that it was dismissed. However, Mr. Latif says that by his conduct emerging from alleged abscondance the respondent Dr. Younus Soomro has disentitled himself to the concession of bail and, therefore, he may be remanded to custody.
11. ' As far as the merits of the case are concerned, the motive as alleged in the F.I.R. Is not convincing.
12. It appears that there is more than meets the eye. Normally a doctor who is an educated man would not take up a revolver and shoot at another colleague with whom his wife was working for the mere reason of an altercation between his wife and such other doctor, particularly when, as the states, that the dispute or altercation had been settled at the instance of the senior doctors. All the same allegations have been made that a shot was fired which struck complainant Dr. Abdul Ghani on the thigh. No doubt there is medical certificate in support of the same and such certificate shows that there has been fracture of the femur bone. Dr. Abdul Ghani has been present and I find that the alleged shot has not disabled him in any manner. On the other hand one cannot overlook that if the intention of respondent were to cause death of complainant. Dr. Abdul Ghani then the shot would not have been fired at the leg but it should have been at a more delicate part of the body. This is also a point that has to be kept in view for the purpose of deciding whether the respondent Dr. Muhammad Younus Soomro had an intention of causing the death of complainant Dr. Abdul Ghani. I refrain from entering deeper into this matter because the case is still pending and I would not like to prejudice one or the other party. Suffice to say that sufficiency of the material in regard to the nature of injury and the motive underlying the assault would be relevant considerations and on that aspect of the case further enquiry would be necessary as otherwise the offence may fall under section 325 or 326, P.P.C.
13. ' One also cannot overlook that the incident had taken place nearly 9 years back and normally bail of a person would not be cancelled after 9 years of the incident unless it was shown that he had abused his liberty in a gross manner.
14. ' This brings me directly to the question of the respondent having left Pakistan. It appears that the respondent did not leave Pakistan solely for the reason of avoiding the trial because there is enough material to show that he had been awarded scholarship by World Health Organization and he wanted to go outside Pakistan for the purpose of improving his career. The point does not rest there because the letter of the Home Secretary to the Government of Sind had clearly stated that "the case was not being challaned". The Home Secretary was the highest executive officer in the Province in the matter of prosecutions and in the face of writing by the Home Secretary that the case was not being challaned the respondent was justified in thinking that he was a free man who could go out. Not merely that but the Home Secretary also wrote to the Immigration Authorities to give the respondent a passport. It is not known why the Immigration Authorities were reluctant to give a passport to the -respondent Dr. Muhammad Younus Soomro but it may well be that persons hostile to the respondent had brought the facts of this case to the notice of the Immigration Authorities so that the respondent may not be able to leave Pakistan but in the face of this letter from the Home Secretary the respondent was justified in thinking that the case was not being challaned and, therefore, he acted in a justified manner in leaving Pakistan. On his return to Pakistan the respondent has voluntarily appeared before the Sessions Judge and this also shows his bona fides.
15. ' For the aforesaid reasons I see no ground to cancel bail initially granted to respondent Dr. Muhammad Younus Soomro by Mr. B.G.N.Kazi, Sessions Judge, Karachi.
16. ' The application is dismissed.