The applicant Ali Gohar Khan through this application has sought the cancellation of bail before arrest granted on 23-7-1,990 to the respondent Zeb Shah by the Incharge, Sessions Judge (East)
Karachi in Criminal Bail Application No.484 of 1990 under sections 302, 307 and 34, P.P.C. Of Police Station Shahrah---e-Faisal, Karachi.
2. The facts in brief are that on 1-11-1989, the applicant Ali Gohar Shah lodged F.I.R. At Police Station Shahrah-e-Faisal, which was registered as Crime No.437/89 under sections 302, 307 and 34, P.P.C.
The respondent Zeb Shah is shown as an accused in the said F.I.R. And is attributed the part of having fired from his pistol injuring the complainant, Zamin Shah and Jehan Zeb. Consequently, Zamin Shah died in the hospital. The respondent No.1 throughout claimed to be falsely involved in the case and he took the plea of alibi and produced certain documents in proof thereof, showing that at the relevant time of occurrence, he was on duty in P.I.A.
3. On 8-7-1990, the respondent appeared before the Sessions Judge, Mansehra and applied for bail before arrest, and ad interim bail before arrest was granted to him with direction that he should appear before the Sessions Judge (East) Karachi, on 23-7-1990. The petitioner appeared before the Sessions Judge, Karachi and filed Bail Application No.404 of 1990 on 19-7-1990 and alongwith his bail application, he filed the affidavits of Zeb Shah, S. Shaukat Ali, Gulzan Khan, Manzoor Hussain and Muhammad Tariq who are all said to be the employees of P.I.A. And they deposed that at the relevant time of occurrence the respondent Zeb Shah was on duty. This application for grant of anticipatory bail came up for hearing before the learned Incharge Sessions Judge, Karachi, who heard the arguments and granted pre-arrest bail to the respondent, which has now been sought to be cancelled.
4. I have heard the learned Advocates for the parties.
Mr. Khawaja Sharful Islam, learned Advocate for the applicant, seeking cancellation of bail granted to the respondent No.1, has argued that the affidavits of the 5 persons named above, filed alongwith bail application before the learned lower Court, are not shown as eye-witnesses in the F.I.R. He has argued that these affidavits were, therefore, of no help to the respondent, when his bail application was considered. He has next contended that the respondent applied for bail after about 8-1/2 months of the occurrence and on account of his being an absconder, he was not entitled to bail before arrest as he has not joined the investigation during this period. In support of his this contention, he has placed reliance on 1986 P Cr. L J 1449, PLD 1985 SC 182, PLD 1984 SC 157 and 1985 SCMR 392. The learned Advocate has further contended that the plea of alibi taken by the respondent was a false plea and should not have been considered by the Court below while hearing the application for grant of bail before arrest. For these reasons, he has argued that the bail granted to the respondent is liable to be cancelled.
5. Mr. Gul Zaman Khan, the learned Advocate, has contended, inter alia, that the complainant is not an eye-witness of the occurrence and there is delay in lodging the F.I.R. He has next contended that the P.Ws. Gul Muhammad, Abdur Razzam, Jehan Zeb shown to be the eye-witnesses, have also sworn affidavits before the lower Court exonerating the respondent and showing that he was not present at the scene of occurrence at the relevant time. It is also contended by him that the version given in the F.I.R. Is contrary to the medical evidence particularly, when there was no post- mortem examination carried out and no valid cause of death established.
It is also argued by the learned Advocate for the respondent that the applicant has not moved the lower Court for cancellation of bail and, therefore, also the present cancellation application is incompetent. He has contended that the lower Court cannot be by passed and cancellation application cannot be filed straight before the High Court. He has placed reliance on 1976 PCr.LJ 324, 1971 SCM R 637 1981. PCr.LJ 1208 and 1987 M LD 1535.
6.With regard to the absconsion of the accused, he has argued that no proceedings under sections 87 and 88 of the Cr.P.C. Were initiated against the respondent and, therefore, he could not be said to be an absconder. It is next contended by him that the trial of the case is to start soon and in such circumstances bail should not be cancelled. In support of his this contention, he has placed reliance on 1980 SCMR 203, PLD 1989 SC 585, 1988 SCMR 1129 '1132). He has also placed on record copies of the orders passed in Criminal Miscellaneous Applications Nos.250 of 1989 and 290 of 1990, in which orders, the cancellation of hail was declined. It is lastly contended by the learned Advocate for the respondent that the grounds for cancellation of bail are different than the grounds for grant of bail. He has argued that once the bail is granted, very strong grounds would be 'needed for its cancellation and in support of his this contention he has placed reliance on 1991 SCMR 111,
7. Mr. Shaukat H. Zubaidi, learned A.A.G., has not supported the cancellation of bail and in his view the bail was granted by the trial Court in accordance with law. It has also been argued by the learned A.A.-G. That the judgment reported in 1986 P Cr. L J 1449 referred to by Mr. Khawaja Sharful Islam, Advocate in his arguments, has been set aside by the Supreme Court and, therefore, that Authority would not be applicable.
8. I have gone through the impugned order of grant of pre-arrest bail, the affidavits of the eye- witnesses filed alongwith the said application and also the case-law referred by the parties. The eye-witnesses have sworn affidavits and have exonerated the respondent of the alleged offence, showing that at the relevant time he was on duty in P.I.A. So far as the question of abscondence of the respondent is concerned, I need not dilate upon it any more and it shall suffice to say that proceedings under sections 87 and 88 of Cr.P.C. Were not drawn against the respondent by the trial Court. Once the pre-arrest bail has been granted, very strong reasons and grounds would be required for its cancellation. From the facts, and circumstances of the case and the defence of alibi taken by the respondent and also from the fact that no post-mortem examination of the deceased was carried out, the case of the respondent was of further enquiry. The learned trial Court, therefore, rightly granted bail before arrest to him and that order needs no interference. The cancellation of bail granted to respondent Zeb Shah is declined and the application is dismissed.
Any observation made in this order shall not be taken into consideration by the trial Court while proceeding with the trial of the case.