1. ' Applicant Mir Azhar Jabbar, under section 497(5), Cr.P.C., has applied for cancellation of bail granted to respondent Shahid Durrani by this Court as per Order dated 22-1-1995. The facts relevant for decision of this application are as follows:-- ' The applicant on 7-10-1994 lodged a report at Police Station Gulshane-Iqbal, Karachi, which was registered in the Roznamcha, alleging therein that his sister Mst. Abida had complained him on telephone that her husband Shahid Durrani had severely beaten her with a Cricket Bat and caused her injuries. Thereafter, the applicant immediately-went to her sister's house and took her to the police station. She was referred to J.P.M.C., where she was examined by Dr. Tariq Mohsin Kazi on the same date at 3-00 a.m. And following injuries were found on her persons:-- "(1) Diffuse swelling 1.5 c.m. x 1 c.m. At mid of nose.
(2) Diffuse swelling 2 c.m. x 0.5 c.m. At left side oecheek.
(3) Diffuse swelling 1 c.m. x 0.5 c.m. At right middle finger.
(4) Complained loss of hearing of left ear."
2. ' She was also referred to E.N.T. Specialist and the final report disclosed loss of hearing of left ear. On the strength of this report, section 324 Qisas and Diyat Ordinance was applied.
3. ' Respondent Shahid Durrani had applied for bail before arrest before IXth Additional Sessions Judge Karachi, East, and his application was rejected, as per Order, dated 24th November, 1994.
4. Thereafter, he applied for bail before this Court and Interim Bail before arrest was granted to him, vide Order dated 7-12-1994. On 22-1-1995, said bail was confirmed by this Court, with an observation that medical evidence was in conflict with this ocular version of. The injured, as the age of the injuries at the time of examination was found between 2 to 4 hours, whereas as per statement of the injured it, should have been more than 30 hours.
5. ' On 13-2-1995 a separate case was registered against Dr. Tariq Mohsin Kazi and Dr. Ali Nawaz Khoso, Police Surgeon, Karachi as FIR No,12/95 P.S. A.C.E. Under sections 420, 217, 218 and 109/34, P.P.0 read with section 2 of the Prevention of Corruption Act of 1947 for having allegedly tampered with the Medical Certificate/Documents in respect of injured Mst. Abida.
6. ' It is contended on behalf of the applicant that the respondent had obtained bail before arrest from this Court by manipulating and interpolating the Medical Certificate in collusion with the Medical Officers concerned by overwriting '1" into "2" and "2" into "4" and "days" into "hours".
7. ' There is no force in above contention. Dr. Tariq Mohsin Kazi was examined as a witness on 24-1- 1995 in a case, under sections 221, 336, 337 and 34, P.P.C, between the parties, by VIIth learned Additional Sessions Judge, Karachi East, wherein on oath he stated that on 7-10-1994 at 3-00 a.m.
8. He had examined injured Mst. Abida and found on her person first three injuries mentioned earlier.
9. He also deposed that after that she complained loss of hearing of left ear, he referred her for expert opinion of E.N.T Specialist. He specifically stated that duration of injuries was of 2 to 4 hours and he mentioned so in the Certificate. He was also of the view that injuries on her person could be self- suffered. When the concerned Doctor mentioned in the Medical Certificate and also so deposed before the trial Court that the age of injuries at the time of the examination was 2 to 4 hours, Ex facie, the question of interpolation in the Certificate does not arise. It is significant to point out here that out of those injuries three of them were found "Shajjah-i-Khafifah" and injured Abida in 161, Cr.P.C. Statement has maintained that she was caused injuries by the respondent on 5-10-1994 at 8-30 p.m. As pointed out earlier, she was examined by the Doctor on 7-10-1994, as such, the age of the injuries at the time of her examination should have been more than 30 hours, while it was found only 2 to 4 hours.
10. The respondent had challenged the Medical Certificate issued by said Doctor and a Medical Board was constituted, comprising of 4 Doctors for her re-examination. She, however, did not appear before the Board. Learned Assistant Advocate-General submitted that the order of Police Surgeon constituting the Board was withdrawn by the Government. He also submitted that by order dated 15-1-1995 of Secretary, Health Government of Sindh, the Medical Certificate issued by Doctor Tariq (M.L.O. No,4499/94 dated 7-10-1994) and Supplementary Certificate issued by Dr. Iqbal Qureshi of J.P.M.C., Karachi have been restored. It being the factual position, the Medical Certificate, dated 7- 10-1994 holds the field and on that basis it is evident that the Medical Certificate is in conflict with ocular version.
11. Bail cannot be cancelled' on an allegation the factum of correctness of which is yet to be proved, nor on an assertion which is directly and substantially in issue in the proceedings, Civil or Criminal, pending for decision before a Competent Court of Law. Dr. Tariq Mohsin Kazi has maintained that the Medical Certificate issued by him is correct. The allegations against him and the respondent that said Certificate was interpolated, are the subject-matter of the F.I.R. No, 12/95 and as such, sub judice before the Court of Law. It is true that when the order lacks in reasons or is perfunctory in nature bail can be cancelled, but so is not the case here. In this case even S.H.O during investigation had once released the respondent on bail. The Courts have always been slow to cancel the bail already granted, as the liberty of a person cannot be curtailed on flimsy grounds.
12. Learned counsel for the applicant, next argued, that the respondent in his issuing threats to his wife who is presently residing at Quetta. The respondent has denied the allegations and maintained that on the contrary he is being threatened by the applicant and haunted by certain agencies at the behest of his father-in-law Mir Abdul Jabbar, who had been Deputy Inspector-General of Police, Karachi and presently is Deputy Chairman Senate. There is nothing worth mentioning on record to substantiate the plea that the respondent had issued threats to his wife.