1. The respondent No.1 moved a fresh bail application before the IInd Additional Sessions Judge, Sukkur and bad taken plea of alibi. This application was heard and bail was granted on 25-6-1990.
2. It is against this order of grant of bail that the present cancellation application has been filed.
3. It has been contended by the learned Advocate for the applicant that the period of 3 months given by this Court by its order, dated 18-3-1990 had not expired, and before that, the application was entertained and the bail was granted. It has been pointed out by the learned Advocate that the order of this Court dated 18-3-1990, giving 3 months' time for completing the case, was received by the lower Court on 9-5-1990 as is obvious from the case diaries and the period of 3 months in that case would have expired on 9-8-1990 while the order of grant of bail is passed on 25-6-1990 and this the trial Judge did illegally and in excess of his jurisdiction. The learned Advocate has also argued that the trial Judge has not shown due respect to the orders of this Court.
4. It has also been argued by the learned Advocate that the plea of alibi wall, taken by the applicant in his previous bail applications at different stages, but was not accepted. Thus, applications were either withdrawn or not pressed and, therefore, the ground of alibi was not available to the respondent in subsequent bail application. He has placed reliance on PLD 1986 SC 173. It has been shown by the learned Advocate that there is direct allegation against the applicant of causing blow to deceased Attaullah and on merits also he was not entitled to grant of bail. The plea of alibi according to the learned Advocate was misconceived and on that plea bail could not have been granted.
5. Mr. Abdul Waheed Kazi, learned Advocate for the respondent has argued that the case is ripe for hearing but no witness was examined. He has also argued that the applicant was arrested in proceedings under section 107, Cr.P.C on 21-12-1988 and the incident of the present case was also on 21-12-1988 at 7-00 p.m. He was arrested alongwith one Abdul Rasheed by Pano Akil Police.
6. Learned Advocate has also argued that the S.H.O. Of the concerned police station and Mukhtiarkar in 107, Cr.P.C. Proceedings had misconducted themselves as a result of which a Constitution petition was filed being C.P. No.D-19 of 1989 Muhammad Ilyas v. Senior Superintendent of Police, Sukkur and the S.H.O. Pane Akil. It was contended in the said petition that the present respondent Taj Muhammad was in fact arrested on 21-12-1989. S.H.O. Manipulated the record and showed the arrest of the respondent on 22-12-1988. By the facts and the decision in that Constitution petition a final order was passed on 27-3-1989 by my brothers Sajjad Ali Shah, J. And Muhammad Mazhar Ali, J. The S.H.O. Was directed to register the F.I.R. Of the case as the allegation was of manipulation and showing wrong dates of arrest of the respondent in proceedings under section 107, Cr.P.C. A photostat copy of the judgment in Constitutional Petition No.D-19 of 1989 has been placed on record.
7. I has also been contended by the learned Advocate for the respondent that the cancellation application has not been moved by the State and the present application, which is filed by the complainant, was not maintainable. He has placed reliance on 1987 MLD 1898. Reliance has also been placed on 1984 P Cr. L J 149 and 1979 SCMR 479. He has next contended that no attempt was made by the prosecution to rebut the evidence of alibi of the respondent and, therefore, the Court was under obligation to assess the evidence, which was rightly done and the bail was granted to the respondent on his plea of alibi. He has placed reliance on PLD 1978 SC 256.
8. Mr. Shaukat H. Zubaidi, the learned A.A.G. Has contended that the ground of alibi was taken by the respondent in his earlier bail application filed before the lower Court as well as before this Court and once the respondent withdrew his bail application or did not press the ground of alibi, he could not take the plea of alibi in a fresh application, in which he has been enlarged on bail. He has also argued that after the order, dated 18-3-1990, a copy of which was received by the lower Court on 9-5-1990, the period of 3 months had not expired when the bail was granted. Learned A.A.G. Has also taken me through the case diaries on the record and shown that no effort seems to have been made by the trial Court for proceeding with the case, but only dilatory methods were adopted for adjourning the case and for entertaining the plea of alibi and granting bail to the respondent. I am not in agreement with the arguments of the learned Advocate for the respondent on the question that cancellation application could not be filed by the complainant when State has not filed a similar application. The circumstances and facts of the judgments referred on that point are quite distinguishable. I, therefore, order the cancellation of bail to the respondent, granted by the learned IInd Additional Sessions Judge, Sukkur, on 25-6-1990. The copy of this order be sent to the trial Court for further action.