The question raised in this application for cancellation for bail may be stated in a very few words, but the answer is by no means free from difficulty
2. Deceased Adeeb Haider son of Ghulam Haider, a resident of District Turbat, of the Province of Baluchistan had come to Karachi alongwith his younger brother Oadeer Haider to participate in a marriage ceremony. On 2-12-1991 at about 6-20 p.m. Deceased Adeeb Haider was taking tea in Quetta Wali Hotel at Hasht Chowk, Karachi, when one person appeared there and he started firing at him by means of a pistol, causing him bullet injuries on various parts of his body. One of the bullets struck at complainant Moula Bux, a resident of Mohenjo Daro, District Larkana, a total stranger. Both deceased Adeeb Haider and Moula Bux were taken to Civil Hospital, Karachi, where Adeeb Haider died. Liaquat Ali Dogar A.S.I. Rushed to Civil Hospital, Karachi, where he recorded 154, Cr.P.C. Statement of Moula Bux, which was subsequently incorporated in 154, Cr.P.C. Book maintained at Kalakot Police Station (Crime No.302 ~ of 1991), under section 302-324, P.P.C. As amend: ' The investigation remained dormant till applicant Rasool Bux Baloch, fat in-law of deceased Adeeb Haider got it transferred to C.C.T. (South) Karachi, and was entrusted to Raja Ghous, Inspector. During the course of investigation Ghulam Haider, father and brother of deceased Adeeb Haider, respectively, were examined and they disclosed the motive of this murder.
On 19-12-1991 the Police Officer examined Muhammad Ashraf, Rasool Bux and Muhammad Iqbal, and it was then revealed that the respondents Nos.1 to 3 and Muhammad Umar, father of respondents Nos.1 and 2 were responsible for causing the death of Adeeb Haider. On 21-12-1991 Abdul Majeed and Muhammad Fazal were examined and from their statements the name of Muhammad Shareef, the respondent No.3 transpired. On 19-1-1992, Muhammad Shareef, the respondent No.3, and Muhammad Umer, father of respondents Nos.1 and 2 were arrested. Both of them were put to identification test on 23-1-1992, through P.Ws. Muhammad and Fazal, Abdul Majeed and Muhammad Ashraf. Out of them Muhammad Ashraf failed to identify any of them.
Muhammad Fazal and Abdul Majeed, however, picked up Muhammad Shareef, the respondent No.3, correctly. Since Muhammad Umar, father of respondents Nos.1 and 2 was not identified by any of the witnesses, he was discharged under section 169, Cr.P.C. After usual investigation all the respondents were sent up to stand the for the offence under section 302-324/34, P.P.C. The respondents Nos.1 and 2 who were challaned in absentia obtained protective pre-arrest bail from High Court of Baluchistan. They surrendered before Sessions Judge (South) Karachi, and were successful in obtaining anticipatory bail. Muhammad Shareef, the respondent No:3 also got bail after arrest. This order, dated 7-3-1992 passed by learned Sessions Judge (South) Karachi, is the subject-matter of the present application filed under subsection (5) of section 497, Cr.P.C.
3. I have heard Mr. S.A. Ghaffar, learned counsel for applicant, Mr. Muhammad Saleh G. Memon, learned counsel for respondents Nos.1 to 3, and Mr. S. Sarfraz Ahmed, learned Addl. A.-G. For State.
4. Admittedly the incident took place in a hotel where deceased Adeeb Haider was taking tea.
There is also no dispute that complainant Moula Bux who also sustained bullet injury did not know deceased Adeeb Haider who was a resident of District Turbat of the Province of Baluchistan. In such a situation any omission in F.I.R. Is of little significance. Apparently the Investigating Officer did not take pains to apprehend the culprits or examine the witnesses at the initial stage of case. The name of Muhammad Shareef, the respondent No.3 transpired for the first time when Raja Ghous, Inspector took up the investigation. Muhammad Iqbal, Abdul Majeed and Muhammad Fazal fully implicated him. His name was also disclosed,, by deceased Adeeb Haider before breathing his last.
Both Muhammad Fazal and Abdul Majeed had also identified, him in the test held under the supervision of a Magistrate. Thus, A there are reasonable grounds to believe that Muhammad Shareef, the respondent No.3 has been guilty of an offence punishable with death or imprisonment for life. In these circumstances, I am satisfied that the learned Sessions Judge had fallen into basic error while granting bail to Muhammad Shareef, the respondent No.3, by ignoring the specific prohibition of law contained in first proviso to subsection (1) of section 497, Cr.P.C. As a necessary corollary to this finding the bail granted to Muhammad Shareef, the respondent No.3 is cancelled, who shall surrender before the trial Court forthwith. The trial Court shall take necessary steps for remanding him to custody, if he fails to surrender within three days from the receipt of this order.
5. The case of the prosecution against Muhammad Wahid, the respondent No-I, and Muhammad Waris, the respondent No.2 is presently based on suspicion alone. The suspicion, however strong it may be, cannot be taken as substitute of legal evidence. The case of the prosecution, as it stands, makes it clear that the shots,, were fired by means of pistol by one person only. The names of these two respondents do not even transpire from the statements of Muhammad lqbal, Abdul Majeed and Muhammad Fazal, who have referred to sons of Muhammad Umar. There is nothing on record to show that they 8 were the same persons who were with Muhammad Shareef, the respondent No.3 at the time of incident. Under these circumstances, no exception can be taken to the order passed by learned Sessions Judge granting pre-arrest bail to these two respondents, viz., Muhammad Wahid and Muhammad Waris. It was obviously for this reason, that the learned Addl.
A.-G. Has made a feeble attempt in supporting the application for cancellation of bail in respect of these two respondents. '
6. In the result the bail granted to Muhammad Shareef, the respondent No.3 is cancelled, while the prayer for cancellation of bail granted to Muhammad Wahid, the respondent No.1 and Muhammad Waris, the respondent No.2 is rejected. It may, however, be added that if during the C course of trial satisfactory evidence is brought on record connecting these two respondents with this crime, it will be open to the trial Court to cancel their bail. In such cases the substantive evidence on identification is the statements of witnesses in Court.