' Anwar Hussain Shah, petitioner/complainant has filed this petition under section 497(5), Cr.P.C. For cancellation of to the respondent Muhammad Mansha by the learned Additional Sessions Judge, Sheikhupura vide order, dated 18-5-1995 in case F.I.R. No,40/1995, dated .19-1-1995 under section 302/34, P.P.C. With Police Station City "A" Division, Sheikhupura.
2. The prosecution story, in brief, as narrated in the F.I.R. Lodged by Anwar Hussain Shah are that on the day of occurrence, he alongwith Khalid Shah and Habib Ali went to meet his brother Syed Arif Hussain Shah. When they reached near the Chowk of the street, Muhammad Mansha respondent alongwith Khalid Darzi armed with pistol and Zafar co-accused armed with rifle .222 bore came there. Zafar co-accused made a fire of his rifle hitting the deceased on his neck. Mansha respondent made a fire hitting the right side of the abdomen of the deceased who fell down. Both the accused fired repeatedly at different parts of the body of the deceased.
3. Learned counsel for the petitioner/complainant contends that the learned Additional Sessions fudge while granting bail to the respondents failed to note all relevant circumstances of the case; did not peruse the record properly and fell into error by relying upon the opinion of first Investigating Officer; did not consider the subsequent investigation conduCted by the S.P., Commando Force who had not only found him guilty but also recommended disciplinary action against the said Investigating Officer for spoiling the case of prosecution by intentionally introducing other two co-accused persons namely Shahbaz and Ehsan Ullah not mentioned in the F.I.R. On the desire of Rana Muhammad Iqbal , A . S . P.
4. Learned counsel for the respondent at the very outset contended that once bail is granted by the Court of competent jurisdiction, then strong and exceptional grounds would be required for the cancellation of bail. Further supported the order of the learned Additional Sessions Judge contending that the plea of alibi of the respondent was supported by the evidence of Feroze Khan, Asghar etc. And was accepted by the first Investigating Officer who even recommended on 11-2- 1995 to discharge the respondent, the witnesses mentioned in the F I.R. Are not natural but chance witnesses and cannot be relied upon. Further contended that priority in successive investigations is given to the first investigation, no recovery of incriminating articles was effected from the respondent; the accused, his son-in-law and Shahbaz were not named in the F.I.R. And lastly that trial has commenced and concession of to the petitioner has not been misused.
5. In support of his submission, learned counsel relied on Tariq Bashir and 5 others v. State PLD 1995 SC 34 to submit that to deprive a person on post; arrest bail of liberty is a most serious step to be taken. Reliance was also placed on Akmal Maseh and others v. Salamat Maseh and 4 others 1988 SCM R 918 for the proposition that when the challan has been submitted and the trial was to start shortly, bail could not be cancelled. Learned counsel referred to Shahid Arshad v. Muhammad Naqi Butt and 2 others 1976 SCM R 360, Sher Muhammad and 2 others v. State and 4 others 1994 SCM R 549 and Muhammad Rahim v. Baita Gul PLD 1974 SC ,86.
6. The main question to be determined is as to whether the order passed by the learned Additional Sessions Judge is based on sound or sufficient material or not. The administration of justice demands that the grant/refusal of bail is to be determined judicially having regard to the facts and circumstances of each case. For the resolution of this controversy guidelines have been given by the Honorable Supreme Court in case of Tariq Bashir and others v. State PLD 1995 SC 34 by holding that:-- "Where the prosecution satisfies the Court that there are reasonable grounds to believe that the accused has committed the crime falling in category of offence punishable with death or imprisonment for life or imprisonment for 10 years, the Court must refuse bail. To arrive at any such conclusion only tentative assessm ent is to be made as already observed. The reasonable grounds means grounds which appeal to a reasonable and prudent man."
' In para. 8 of the impugned order, dated 18-5-1995, the learned Additional Sessions Judge himself observed that though Mansha is named in the F.I.R., fatal shot is attributed to him and the motive does exist in the case but as he was declared innocent in the first investigation, his case was one of further inquiry. The use of words "first investigation" clearly indicates that the learned officer was knowing that there was a second investigation conducted by a gazetted Police Officer of the rank of S.P. Who declared the respondent as accused and also recommended for disciplinary action against the first Investigating Officer for destroying the prosecution case, but he did not discuss even a single word from his opinion for the reasons not borne out from the record. The conclusion is thus irresistible that there were some extraneous considerations which weighed with the learned Additional Sessions Judge for granting bail to Mansha, respondent when he himself observed that he is named in the F.I.R., fatal shot is attributed to him and motive also exists.
7. In so far as the conduct of the first Investigating Officer on whose opinion much reliance has been placed is concerned, he from the very start of the investigation, started to record the plea of alibi and innocence of the respondent and collecting evidence in support thereof instead of searching the truth. It is also on record that the Investigating Officer even on the basis of so-called evidence collected in connection with plea of alibi recommended for the discharge of the respondent on 11-2-1995 when he was directed to stop the investigation forthwith vide order, dated 9-2-1995 as is evident from Zimni.
8. In view of what has been discussed above, I am of the view that the learned Additional Sessions Judge while granting bail to respondent Munsha has exercised the discretion arbitrarily and against the law laid down by the superior Courts. I, therefore, feel inclined to recall the order, dated 18-5-1995 and cancel the to the respondent Munsha.
9. Direct Mr. Ghulam Mustafa Shahzad, Additional Sessions Judge, Sheikhupura to appear in person before this Court on 14-11-1995.
Bail cancelled.