1. ' The respondents are accused in F.I.R. No,556/92 recorded at Police Station Gulshan-e-Iqbal on 31- 10-1992 at 20-35 hours under sections 365/323 and 506, P.P.C., were granted bail by the learned Sessions Judge, Karachi-East, by order, dated 3-11-1992. Applicant, who is the complainant in said F.I.R., has approached, this Court for cancellation of bail. It is stated in the F.I.R. By complainant Muhammad Iqbal Lakhani that on 31-10-1992 he and his family members were not at the house. At 19-05 hours when he returned back his servant Akram informed him that at 6-00 p.m. 4 persons, who were aged between 40 and 45 years, came to the house of complainant duly armed and pointed pistol at another servant Saeed Khan and inquired about Muhammad Iqbal Lakhani. Since Akram denied to have any knowledge about Muhammad Iqbal, the 4 persons kidnapped another servant Saeed Khan at pistol point. It is also in the F.I.R. That the name of one of the accused was known to be Hashim, the respondent No,2.
2. ' On the basis of such report, the S.I.P. Ameer Bux alongwith his subordinates raided the house of respondent Muhammad Hashim situated at Block-5, Gulshan-e-Iqbal at 00-55 hours i,e. Past mid- night and recovered the abductee Saeed Khan from the servant quarter. A TT pistol of .30 bore loaded with a magazine was also recovered from the respondent Hashim for which no licence was produced and a separate case under section 13-E of Arms Ordinance, 1965 was registered against Hashim at Police Station Gulshan-e-Iqbal on 1-11-1992 at 22-00 hours.
3. ' Mr. A.Q. Halepota, the learned Advocate appearing for the applicant, has contended that the arrest of the respondents Nos.2 and 3 was effected at 00-55 hours on 1-11-1992 and bail to the respondents was granted by the learned Sessions Judge on 3-11-1992 while the investigation was still going on and some more evidence was to be collected by the police. It is contended that the trial Court has acted in a haste in granting bail to respondents in a case of such a serious nature. It is also contended that although in cases not punishable with death, life imprisonment or for 10 years refusal of bail should be an exception but heinousness of each offence should be kept into consideration in each case while applying such rule. The offence under section 365 of P.P.C.
4. Although being punishable with imprisonment for 7 years, exception to above rule should have been applied, looking to the manner in which offence was committed. In support of his above contentions, learned Advocate has referred to Ghulam Nabi v. Ahmed Hussain and 2 others 1980 P Cr. L J 446, where this Court held that bail in heinous cases is to be refused unless material available before the Court was not indicative of complicity of accused in crime. He then referred to Muhammad Ismail v. Hidayatullah and 2 others 1981 SCMR 35, where the Honourable Supreme Court discussed the provisions of section 369 read with section 497(5) of Cr.P.C. And dilated upon the powers of the High Court and of the Sessions Court in the matters of cancellation of bail. Mr. A.Q. Halepota then referred to Ziaul Hasan v. The State PLD 1984 SC 192, which was a case where the High Court cancelled pre-arrest bail as the interim pre-arrest bail was granted within few days of registration of case without application of mind to serious questions involved in case as a matter of course. The cancellation of bail by the High Court was held to be justified and was not interfered with by the Supreme Court. Reliance is lastly placed on Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182, where it was held by the Supreme Court that the bail is to be allowed only where no reasonable grounds exist for believing that accused has committed a non-bailable offence but there are sufficient grounds for "further enquiry" into his guilt. It was further held that when sufficient grounds for further enquiry into guilt of accused exist, there would then be some justification for putting him on trial for offence for which he is charged but for such eventuality law entitles accused to bail during pendency of trial subject to cancellation of bail under section 497(5), Cr.P.C.
5. On availability of evidence or sufficient cause. It is the contention of the complainant's learned Advocate that no grounds for further enquiry existed at the time bail was granted by the learned Sessions Judge, as till then, full material through investigation had not been collected.
6. ' Mr. K.M. Nadeem, learned A.A.-G. Appearing for the State, has not supported the cancellation of bail. It is contended that the provisions of cancellation of bail contained in section 497(5), Cr.P.C.
7. Are not intended to perpetuate vengeance against a party. According to the learned A.A.-G. The kidnapee was recovered and nothing more was left to be done by the Investigating Officer and that material before the trial Court was sufficient to reach a conclusion that respondents were entitled to grant of bail. He has contended that merely because an offence, with which the accused is charged, is a non-bailable offence, bail should not be refused on that count. He has referred to Mansha Khan and 2 others v. The State 1977 SCMR 449, where it was held that offence under section 325, P.P.C. Being punishable with seven years' R.I., is not one of these in which bail is refused for reasons of the prohibition contained in section 497, Cr.P.C. And the bail should not be refused merely because the offence is non-bailable. It is also contended that as held in Miandad v.
8. The State 1992 SCMR 1286, the considerations for cancellation of bail are totally different than the considerations for grant of bail even in cases providing death punishment or imprisonment for life.
9. Since no such consideration for refusing bail to respondent was available, the learned Sessions Judge had fallen into no error to grant bail.
10. ' Mr. Mehfooz Yar Khan, learned counsel for the respondents, has adopted arguments of the learned A.A.-G. All that has been added by him is that there is nothing on record that after their release on bail, respondents have either misused such concession or refused to associate with the investigation.
11. ' I have heard the arguments of the learned counsel at length and perused the record as well as the case-law referred. The respondents are charged with offence of kidnapping one Saeed Khan, a servant of the complainant whom the police recovered the same night and also allegedly recovered an unlicensed TT pistol from respondent Hashim. The maximum punishment provided for the said offence under section 365, P.P.C. Is 7 years and is not covered by the prohibitory clause of section 497 of Cr.P.C. A separate F.I.R. Under section 13-E of Arms Ordinance has also been filed against respondent Muhammad Hashim but after a delay of about 22 hours.
12. Since the abductee was recovered, nothing more was required to be done by the investigating agency, except to Tecord statements of some formal witnesses. There is no bar to the entertaining a bail application at the early stage of investigation if the facts and circumstances of a particular case justify grant of bail to an accused. The order of the trial Court may be said to be a little hasty but the same is not either perverse or based upon misreading of evidence or oppose to law. There appeared no reasonable grounds to believe that respondents were guilty of an offence punishable with death or imprisonment Cfor life or imprisonment for 10 years. The case of the respondents was of further enquiry and bail was rightly granted. The order of grant of bail calls for no interference and the application is, therefore, dismissed.