1. ' This is an application moved by the complainant, Muhammad Akram seeking cancellation of pre- arrest to the respondent, Syed Raheem in Crime No,176/93 of Police Station Shershah by the Sessions Judge, West Karachi. It would be relevant to give the circumstances and background under which this application for cancellation has been filed.
2. ' Respondent Syed Raheem is named as an accused in Crime No,176/93 of Police Station Sher Shah registered on 8-9-1993 under section 302, P.P.C. Read with section 324, P.P.C. As amended. It is stated that the respondent No,1 did not know that he was named as an accused in the F.I.R. And having known such fact, he approached this Court directly for protective bail. On 16-11-1993 protective bail was granted to him for a period of 7 days with direction to him to approach the trial Court within such period. On 22-11-1993 the respondent appeared before the trial Court and moved an application for pre-arrest bail of which a notice was given to the D.P.P. And on 27-11-1993 interim pre-arrest bail was granted, which was confirmed on 10-11-1994. The complainant seeks cancellation of to the respondent.
3. ' I have heard the learned counsel for the applicant/complainant, the AA.-G. And the learned counsel appearing on behalf of the respondent/ accused. From the perusal of the order of the learned Sessions Judge, it appears that for the following reasons, pre-arrest bail is granted:--
(a) The respondent had produced two medical certificates dated 4-9-1993 and 15-9-1993 issued by a medical practitioner at Peshawar indicating that the respondent was suffering from jaundice and was under his treatment. By these certificates, the plea of alibi taken by the respondent was considered as a circumstance for grant of pre-arrest bail.
(b) There is counter-version of the same case, as the brother of respondent was also murdered probably during the same incident, and it was a case of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C.
(c) Mala fides of the police inasmuch as after grant of interim pre-arrest bail by Sessions Judge, the respondent was taken into custody and was detained at some unknown place, which fact was disclosed by the counsel for the respondent, who moved an application immediately thereafter for contempt proceedings;
(d) Further mala fides of the police inasmuch as although the brother of, the respondent was murdered, no F.I.R. Was registered, which constrained another brother of the respondent to move an application before the D.I.-G. And because no action was taken, a private complaint was filed..
4. ' The contentions raised by the learned counsel for the applicant/ complainant are that the name of the respondent appears in the F.I.R. And specific role of firing at the deceased Nosherwan and also at a minor boy Muhammad Naeem, who both died, the medical certificates issued by a doctor at Peshawar are managed documents and the disease of which the respondent is shown to have been suffering was not so serious as to confine him to bed, that the learned trial Court has not taken into consideration the grounds which could be made basis for grant of pre-arrest bail, that the counter-version given in the direct complaint filed by the brother of the respondent after nearly two months is a false defence set up to protect the respondent and lastly that five main witnesses, Ghulam Ali, Altaf Hussain, Muhammad Raees, Shabbir Ahmed and Abdul Qayoom in their police statements have fully supported the version given by the complainant in the F.I.R. It is, therefore, argued that grant of pre-arrest bail in the circumstances was illegal and is liable to be cancelled.
5. In support of these contentions, the learned counsel has referred to the cases reported in PLD 1974 SC 83, 1978 PCr.LJ 644 and 1968 PCr.LJ 186.
6. ' The learned AA.-G. Has supported cancellation of bail and has argued that from the perusal of the police papers, it is clear that all the prosecution witnesses have supported the case and that the learned Sessions Judge acted in hot-haste in granting pre-arrest bail.
7. ' Mr. M. Ilyas Khan, learned counsel for the respondent has also been heard. It is contended by him that the version given in the F.I.R. Is doubtful, there is inordinate delay in Jodging the F.I.R., that there is counter-version of the same incident in which brother of the respondent had died and no F.I.R.
8. Was registered by the police and even his efforts to persuade the high police officials in registering the F.I.R. Were unsuccessful, which constrained him to file direct complaint and after preliminary inquiry the case has been registered and process issued. According to the learned counsel, this is a case of two versions and further that on the application of the complainant the investigation now has been transferred to C.I.A. And the result perhaps may be totally different than what is disclosed in the F.I.R. It is next argued that once a bail has been granted by the Sessions Court, strong grounds are needed for its cancellation and such grounds do not exist. It is also contended that unless it is shown by the complainant that the respondent has abused the concession of bail, normally no interference is called for. In support of these contentions, the learned counsel has referred to 1980 PCr.LJ 288, 1991 PCr.LJ 241, 1991 M LD 579 and NLR 1992 CLU 560.
9. ' I have considered the above contentions raised by the learned counsel and have also gone through the impugned order. The two medical certificates produced on behalf of the respondent are issued by a medical practitioner at Peshawar and if the respondent had really been present there, the same should have been produced by him before the Investigating Officer and taken the plea of alibi at the earliest. He withheld such documents and filed the same either before this Court for protective bail after inordinate delay or before the trial Court after succeeding in getting protective bail from this Court. The two certificates are not authenticated and are mere photostat copies, which if genuine, should have been produced before the Investigating Officer who may have verified if the respondent was at Peshawar and not at Karachi. The counter-version/direct complaint has been filed by Syed Waheed, the brother of the respondent after inordinate delay.
10. The grounds on the basis of which the learned Sessions Judge has granted pre-arrest bail are not available in cases which are heinous in nature and are punishable to death or imprisonment for life or for 10 years. The respondent is not only named in the F.I.R. But is attributed specific role of causing injuries to Nowsherwan and to one Muhammad Naeem, a minor child who both succumbed to the injuries. The proper course for the respondent in such circumstances was to have surrendered by the police and after arrest ought to have moved an application for bail. In this view, I am benefited by the order passed by the Honourable Supreme Court of Pakistan in Sarwar Sultan v. The State PLD 1994 SC 133 and with utmost respect I follow the rule laid down in the said order. The grant of bail to the accused/respondent can, therefore, not be sustained in the circumstances of the case. The order, dated 10-1-1994 is hereby set aside, pre-arrest to the respondent Syed Raheem is cancelled. Copy of this order shall be sent to the learned trial Court for taking further action against the respondent in accordance with law.
11. Bail cancelled.