IJAZ NISAR, J.- Muhammad, Tufail, father of the deceased, has applied for cancellation of bail of Nasir Mahmood, foot-constable, granted to him by the learned trial court on 12.9.1993, in the case pertaining to the murder of Zaheer Iqbal deceased.
2. The prosecution case is that the respondent along with three others waylaid Zaheer Iqbal deceased while he was proceeding on a motor-cycle and fired at him which instead of hitting him, hit his motor-cycle as a result of which it stopped, ln the meantime, his co-accused fired ar gun- shot at the deceased, which proved fatal.
3. The motive for the offence was that about IS years prior to the occurrence, a cousin of the respondent was murdered for which brothers of the deceased were suspected. 2/3 days prior to the occurrence, the accused had made an attempt on his life by firing at him.
4. Nasir Mahmood respondent was granted bail by the learned Addl:Sessions Judge on the ground that he had been found innocent during investigation.
5. The cancellation is sought on the grounds that being vicariously liable, the respondent was not entitled to be released on bail. Further more, in the investigation conducted by Abdul Majid, DSP Crimes, he was found guilty and was found to have interpolated the duty-register to show that on the relevant date, he was present on duty.
6. Learned counsel for the respondent states that the application for cancellation cannot be moved in the High Court directly and the petitioner should move the trial court, in the first instance.
He has not been able to cite any case law in support of his contention. Section 497 sub-section (5)
Cr.P.C, empowers the High Court to cancell by the Court of Session.
7. The ground on which the respondent was admitted to bail does not hold the field in view of the final result of the investigation carried out by Abdul Majid, DSP Crimes. According to the DSP, Nazar Muhammad AS1, with whom the respondent was attached, had reported his absence from duty on the relevant date.
8. The respondent is named in the FIR with an allegation of waylaying the deceased. He along with his co-accused Munawar Hussain is alleged to have opened firing at the deceased. It is not material whether his shot hit the deceased or his motor-cycle.
In the circumstances narrated above, he is not considered entitled to bail and accordingly, this application is accepted and his bail is cancelled.