1. Respondents Nos. 2 and 3 were granted anticipatory bail in F.I.R. 401/90 of Ferozeabad Police Station by Learned Sessions Judge, Karachi East on 12-8-1990. Bail granted to respondents Nos. 2 and 3 is sought to be cancelled under this application moved by complainant Nasir Khan and injured Sanaullah Khan.
2. The prosecution case was that on 2-5-1990 at 8-00 p.m. Respondent No.2 Nasir Ali and his brother came at the show-room of P.W. Sanaullah, and asked him to come out. Subsequently he was fired at with T.T. Pistol by Nasir Ali and his brother. One bullet hit Sanaullah and he fell down. It was found that a third culprit was sitting in the Jeep parking outside.
3. Mr. Munawar Malik, learned counsel for the complainant argued that learned Sessions Judge while granting bail to the respondents Nos. 2 and 3, had gone deep into the evidence that was yet to be brought on record, and that he was not supposed to do so at the bail stage. It was next argued that the certificate produced in support of the plea of alibi by the respondent No.2 was a managed one.
4. It was further argued that motive for the offence was given in police statement of injured Sanaullah, who had received a grievous injury over a vital part of his body. Lastly it was argued that the respondents Nos.2 and 3 had absconded after commission of the offence and they were fugitives from law and were disentitled to the relief of bail.
5. Mr. Gul Zaman Khan, learned counsel for the respondents Nos.2 and 3 argued that there was unexplained delay of one hour and forty-five minutes in lodging the F.I.R., when the place of Wardat is 1 k.m. Away from the police; station. It was next argued that injured Sanaullah was admitted in Agha Khan Hospital from 2-5-1990 till 13-5-1990, but the medical certificate in respect of his injuries was issued by a Medical Officer of J.P.M.C. It was further argued that the injured had received only one injury on a non-vital part of his body and that it cannot be ascertained as to, which of the three culprits caused that injury. It was also argued that P.Ws. Ayaz and Azhar were chance witnesses and that they were examined on 4-5-1990. Learned counsel referred to police statement of Sanaullah and argued that Sanaullah has alleged that third culprit sitting in the Jeep also fired.
6. Injured was said to have further stated that it was firing by Anwar Ali which caused him injury. This statement, according to the learned counsel, was in conflict with the F.I.R., where it was said that Nasir and his brother fired at Sanaullah. It was also argued that there was a business rivalry between the parties and that both the parties were of Quetta and still name of brother of Nasir Khan was not given in the F.I.R. Learned counsel referred to the certificate showing that respondent Nasir Khan was admitted in Hospital at Quetta from 28-4-1990 till 5-5-1990 and argued that his presence at the place of incident on 2-5-1990 was not possible. On the point of alibi there are affidavits of some persons, as added.
7. Mr. Shaukat Hussain Zubaidi, learned A.A.G. For the State argued that the medical certificate in respect of the injuries on person of Sanaullah issued by a Medical Officer of the J.P.M.C. Showed that the injured was brought in 1.P.M.C. On 3-5-1990 at 1-15 p.m. Although according to the F.I.R. The injured was taken straightway to Agha Khan Hospital. Learned A.A.-G. Did not support the application for cancellation of bail, on the ground that charge in the case has already been framed and the case was about to proceed. In this respect reliance was placed by him and by learned counsel for respondents Nos.2 and 3 on a judgment of the Supreme Court in Criminal Appeal No.4 of 1990 decided on 17-5-1990. Learned counsel for the respondents Nos.2 and 3 cited the cases of Akmal Masih and others v. Salamat Masih and others 1988 SCMR 918, Muhammad Sadiq and others v. State 1980 SCMR 203, Meeran Bux v. State and another PLD 1989 SC 347, Muhammad Usman v. Meer Khurshid and others 1990 P Cr. L J 609 and Aftab Gul v. State 1989 P Cr. L J 1599.
8. 1988 SCMR 918, challan in the case had been put up in the trial Court and the trial was to start shortly and on that ground cancellation of bail was declined. In the case of Muhammad Sadiq and others v. State 1980 SCMR 203 the date of trial was already fixed and trial was to commence shortly and it was held that it was not fair in such circumstances to go into merits of the case, in the form of a bail application, at leave to appeal stage. This authority does not help the respondent` Nos.2 and 3. In the case of Meeran Bux v. State and another PLD 1989 SC: 347 the accused/applicant had remained on bail for more than one year before cancellation of the bail by the High Court and he had not abused the concession of bail. In the circumstances the order of the High Court cancelling the bail was set aside and order of the Sessions Judge granting pre-arrest bail was restored. In the case of Muhammad Usman v. Meer Khurshid and others 1990 P Cr. L J 609 cancellation of bail was refused in respect of the accused who were granted bail on the ground of alibi and on the ground of inconsistency with medical evidence. In the case of Aftab Gul v. State 1989 P Cr. L J 1599 anticipatory bail was granted on the ground that the accused had been falsely roped in as he has been activist of P.P.P. And was associated with murder trial of its Chairman.
9. The complainant did not move any application for cancellation of the bail granted after arrest to co-accused Muhammad Mehdi, who allegedly fired at the injured as per police statement of the injured. Name of Anwar All does not appear in the F.I.R. And there was no identification test in respect of Anwar Ali. There is force in contention of the learned counsel for respondents Nos.2 and .3 that it has not been pin-pointed as to which of the three culprits had caused injury to Sanaullah, although Sanaullah has said in his police statement that it was Anwar Ali, who caused him injury.
10. Evidence of Ayaz and Azhar is not of any help as they did not see the incident, although they saw the injured lying on the, ground. There is material discrepancy about the injured having been sent to the Agha Khan Hospital on 2-5-1990 and about issue of certificate by a Medical Officer of J.P.M.C.
11. On 3-5-1990.