1. ' The brief facts giving rise to the present suo motu reference are that on 19-7-1988 complainant Mir Muhammad Magsi lodged report at Police Station Ladyoon inter alia alleging therein that he is working as Abdar in Irrigation Department. On 19-7-1988 he was in his house when at 6-30 a.m.
2. P.Ws. Sanwan Magsi and Ghulam Hussain Bhund came at his house and informed him that they along with Muhammad Rahim Magsi were going to Shah Yakik for selling their milk, and when they reached on Shah Yakik Pacca Road near the house of Saleh Khaskheli at 6-00 a.m. One grey cultured car belonging to accused Muhammad Ashraf came from Shah Yakik side and stopped near them. Accused Ramzan, Muhammad Ashraf and Ghulam Hyder Dars got down from the car.
3. Accused Muhammad Ashraf was armed with double barrel gun, Ghulam Hyder was armed with single barrel gun, while Ramzan was armed with rifle. Ashraf and Ghulam Hyder challenged Muhammad Rahim and told him that they had murdered their uncle and that they would see him.
4. Accused Ashraf then fired at Muhammad Rahim which hit him on his right side, he tried to run on which Ghulam Hyder fired at him which hit him on his right shoulder and he fell down. Accused Ramzan fired towards the witnesses but they concealed themselves in nearby sugarcane crop, and thereafter, the accused went away towards their houses in the same car. Thereafter, the witnesses went to the sugarcane crop and found Muhammad Rahim lying dead. On receipt of the above information the complainant went alongwith the witnesses to the place of Wardat and found Muhammad Rahim lyingrdead. Leaving P.Ws. Sanwan and Ghulam Hussain at the dead body, complainant went to police station and lodged his report. After necessary investigation the accused were challaned under sections 302, 307 read with section 34, P.P.C.
5. ' Respondent Ramzan moved an application for bail before arrest before the learned Sessions Judge, Thatta, on the ground of alibi and that there was no allegation that he had caused any injury to the deceased or to any of the witnesses. The learned Sessions Judge, granted interim pre- arrest bail to the accused/respondent, and subsequently the same was confirmed on 8-9-1988.
6. ' Thereafter, accused/respondent No,2 Muhammad Ashraf applied for bail before arrest before the learned Sessions Judge, and he was granted interim bail before arrest on 8-8-198k, and since then the application for confirmation of bail is pending before the learned Sessions Judge.
7. ' However, during the inspection, complaints were received by the Honourable Chief Justice against the then Sessions Judge, Thatta, and therefore, the file of the above case being Sessions Case No, 126 of 1988 (The State v. Muhammad Ashraf and others) and certain other files were brought to Karachi. After scrutiny it was ordered by his Lordship that the above matter 'may be processed on judicial side'.
8. ' After going through the file I had issued show-cause notices against the respondents, and in response to the show-cause notices the respondents have appeared before this Court and have also filed their affidavits.
9. ' I have heard Mr. AA. Mohammadally, Additional A.-G. For the State, Mr. A.Q. Halepota learned counsel appearing for the respondents, and have also gone through the relevant documents.
10. ' It has been contended by Mr. A.A. Mohammadally learned Additional A.-G. Appearing for the State that as far as respondent Ramzan was concerned, the only allegation against him was that of ineffective firing. Neither the deceased nor any of the witnesses was injured due to his firing.
11. Moreover, the respondent has been granted bail by learned Sessions Judge, and the question before this Court is that of cancellation. It was further contended that this Court can interfere with the grant of bail and cancel by the learned trial Judge only when the order appears to be perverse, foolish, arbitrary or illegal. Since no such point is involved in this case, therefore, he does not press the reference made against Ramzan.
12. ' As far as respondent Muhammad Ashraf was concerned it was contended by Mr. A.A.
13. Mohammadally, Additional A.-G. That since the question of confirmation of interim to him earlier is pending before learned Sessions Judge, Thatta, the question of cancellation at this stage is premature and, therefore, the matter will have to be sent back to the learned trial Judge to consider the question of confirmation.
14. ' Mr. A.Q. Halepota, learned counsel appearing for the respondents has adopted the contentions advanced by Mr. A.A. Mohammadally, and has relied upon 1979 SCM R 526 and 1978 SCM R 146.
15. I have considered the contentions of the learned counsel. The F.I.R. Clearly shows that the shots fired by Ramzan were ineffective. Neither the deceased nor any of the witnesses sustained any injury at the hands of respondent Ramzan. Moreover, considerations for grant of bail and for cancellation of bail are different. In the present case, bail having been allowed to the respondent, the same could be cancelled only when it was found that the order was perverse, foolish, arbitrary or illegal. In the case of Ahmed v. Sheru and 8 others 1979 SCMR 526 while considering the question of cancellation of bail their Lordships of the Supreme Court were pleased to observe that:- "In view of the fact that the learned Judge in the High Court has given reasons in support of his decision to allow bail, which are neither whimsical, arbitrary nor capricious, the interference was declined."
16. ' In the case of Khadim Hussain v. The State and another 1978 SCMR 146, there was allegation against one of the accused that he had caused some simple injuries on the person of complainant but there was no allegation that he had caused any injury to the deceased, he was granted bail by the High Court, and on petition for Special Leave to Appeal by Khalid Hussain complainant, their Lordships declined to interfere and the leave was refused.
17. The plea of alibi raised by respondent Ramzan was supported by two witnesses, namely, Ali Nawaz and Karim Bux who have filed their affidavits before the learned Sessions Judge. The allegations regarding mala fides were also alleged in para. 8 of the application. Bail could be granted even on the plea of alibi if it appeared reasonable. In this connection reliance is placed on Muhammad Iqbal v. The State 1975 P Cr. L J 1092 and Akram Khan v. The State 1978 SCM R 242.
18. ' In the case of Sultan Ahmed etc. v. The State 1981 SCMR 771, the petitioners who were not attributed firing at deceased were granted bail in spite of the fact that they were armed with fire- arms and that sections 148 and 149, P.P.C. Were applied.
19. ' In the case of Wadho and another v. The State 1985 P Cr. L J 2007, it was observed by this Court that:- "The allegation in the F.I.R. Is that some person came on car and after that accused fired 2/3 shots which missed. The allegation is of general nature against both the accused and it is nowhere stated that applicant had fired at deceased. That it has been pointed out that the deceased in his police statement has also stated that he sustained injuries at the hands of co-accused. It was further observed that at this stage the allegation against the applicant is that of ineffective firing and no crime weapon has been recovered from him, and therefore, applicant was released on bail."
20. There is no allegation of abuse of liberty by the respondent. In view of the above discussion, I am of the considered view that the order passed by the learned Sessions Judge granting bail to respondent Ramzan does not call for interference, and therefore, the interference is declined, and the reference is rejected.
21. ' However, if any tangible evidence is brought on record against respondent Ramzan during the trial, the learned trial Judge will be at liberty to cancel his bail.
22. As far as respondent Ashraf is concerned, admittedly he was granted interim bail by the learned Sessions Judge, and question of confirmation of bail is still sub judice before the learned Sessions Judge and, therefore, it has been rightly argued by learned counsel that the reference against him is premature and the complainant can move the learned Sessions Judge, for cancellation of bail or oppose the confirmation of bail before him. In this view of the matter, the reference against Muhammad Ashraf respondent is also rejected. .