' This order shall dispose of Criminal Miscellaneous No,485-B/BWP of 1995 (a bail petition on behalf of Muhammad Zubair and Muhammad Tufail) and Criminal Reference No,27-BC/BWP of 1995 (received from learned District and Sessions Judge, Bahawalnagar seeking cancellation of bail granted to Abbas and Bagh Ali co-accused by Additional Sessions Judge Mr. Muhammad Ali Shad vide his order, dated 13-8-1995) as both arise out of the same F.I.R. i,e, F.I.R. No,177 of 1994 dated 28- 8-1994 under section 302/148/ 149, P.P.C. Police Station, Minchanabad. The prosecution story as given in F.I.R. Briefly stated is that at about one and a half years prior to the lodging of the F.I.R. One Usman of the accused party in the instant case was killed and a case was registered against the complainant party (in the afore-referred F.I.R.) which was pending trial at the time of the occurrence. On 28-8-1994 at about 6-00 a.m. While the complainant alongwith his father, Qasim deceased and Ghulam Hussain etc were going towards their lands, they were attacked by the accused. Petitioners Muhammad Zubair and Muhammad Tufail were allegedly armed with sticks while their co-accused Wali Muhammad, Muhammad Usman and Bagh Ali were armed with .12 bore guns and Iqbal, Mansha and Anwar were also armed with sticks. The petitioner and their co- accused caught hold of complainant's father, Qasim, made him lie down whereafter Muhammad Abbas and Bagh Ali co-accused fired two shots at the chest of Qasim deceased in consequence of which he died at the spot.
2. Wali Muhammad, Mansha, Anwar and Iqbal co-accused were granted bail by this Court vide order dated 7-2-1995 (Criminal Miscellaneous No,19- B/BWP/95) on the grounds that they did not cause any injury to the deceased; that Wali Muhammad was allegedly attributed ineffective firing whereas the others allegedly caught hold of the deceased and that they were not connected with the motive part of the prosecution story.
3. Learned counsel for the petitioners prays for bail on the grounds that their role is at par with that of the co-accused who have already been granted bail by this Court; that Qasim deceased was involved in three murder cases and that the possibility cannot be ruled out that he was done to death by his enemies; that the prosecution witnesses are not residents of the locality; that the ocular account and the medical evidence are discrepant and that the prosecution case to the extent of petitioners would call for further inquiry.
4. Learned counsel for the complainant on the other hand, has opposed the prayer for bail and submitted that Muhammad Zubair and Muhammad Tufail petitioners are sons of Muhammad Usman who was murdered prior to the occurrence and the said murder constituted motive part of the prosecution story; that the petitioners had come along with the co-accused and as they were connected with the motive part of the prosecution story and their case is distinguishable from those who were granted bail by this Court. While supporting the Criminal Reference learned counsel for the complainant, further submitted that Bagh Ali and Muhammad Abbas were granted bail by learned Additional Sessions Judge Muhammad Ali Shad notwithstanding the fact that the bail petition of co-accused had already been dismissed by Mr. Inam Ullah Khan, learned Additional Judge, Bahawalnagar on 4-1-1995 and further that the learned District and Sessions Judge, Bahawalnagar had dismissed the bail petition of Muhammad Zubair and Muhammad Tufail on 16- 7-1995, therefore, propriety demanded that the bail petition of Bagh Ali and Muhammad Abbas should have been decided by either of the afore-referred Judges and even on merit, they were not entitled to bail as they were the principal accused and had caused two fatal shots on the chest of Qasim deceased.
6. While opposing the Criminal Reference, learned counsel for the petitioners-accused contended that a petition for cancellation of bail should be moved before the Court which granted bail and even otherwise, the bail having once been granted through a well-reasoned order cannot be interfered with by way of afore-referred reference for cancellation. In support of his contention, he has referred to Khadim Hussain v. The State 1982 PSC 1332, Abdul Majeed v. The State 19971 SCMR 637 and 1981 SCM R 504.
7. I have heard learned counsel for the parties and have also gone through the record.
8. So far as Criminal Reference sent by learned District and Sessions Judge, Bahawalnagar, against the order through which, bail was granted to Bagh Ali and Muhammad Abbas by Mr. Muhammad Ali Shad, learned Additional Sessions Judge, Bahawalnagar is concerned, I find that the learned Additional Sessions Judge, granted bail to them on the grounds that:---
(a) that Muhammad Abbas's name is not mentioned in the F.I.R. As one of the assailants;
(b) that Bagh Ali was a witness in a murder case of Usman, and therefore, could have been falsely implicated;
(c) that the Doctor found multiple injuries which indicated that there were more than two shots which belied the ocular account.
A bare reading of the F.I.R. Would indicate that the name of Muhammad Abbas son of Usman is specifically mentioned in the F.I.R. And he caused one of the two fatal shots on the chest of Qasim deceased. In the earlier part of the F.I.R., by inadvertence, he is mentioned as Muhammad Usman son of Abbas. The learned Additional Sessions Judge completely overlooked the fact that just after 4/5 lines of the afore-referred mistake, it has been specifically narrated that," {{URDU TEXT}} ' This was further affirmed in the statement of other witnesses recorded under section 161, Cr.P.C. As for the other respondent i,e, Bagh Ali, merely because he was a witness in an earlier murder case could not make his case a matter of further inquiry in the presence of a prompt F.I.R. Specific role having been attributed to him and the said role having been corroborated by the medical evidence. The so-called discrepancy between the ocular account and medical evidence to which learned Additional Sessions Judge, alluded to in his bail granting order amounts to misreading of F.I.R. And the post-mortem report. Therefore, there were reasonable grounds to believe that Bagh Ali and Abbas were connected with the murder of Qasim deceased. No valid grounds existed to grant them bail.
9. The argument that a petition for cancellation of bail should have been moved in the first instance before the Court who granted the bail and that this Court has no power to cancel the same is not a correct exposition of law.
10. Section 497(5), Cr.P.C. Reads as under:- "A High Court or Court of Session and, in the case of a person released by itself, any Court may cause any person who has been released under this section to be arrested and may commit him to custody."
11. The powers of the High Court and Court of Session with regard to cancellation are concurrent. A rule of propriety established through precedent case-law requires that where a ground accrues after the grant of bail, an application for cancellation of bail should be moved in the Court which granted bail. But this rule of propriety cannot be pressed into service where the order is challenged on the ground that the same is not sustainable in law. Even otherwise, this rule of propriety and practice cannot denude this Court of its power under section 439, Cr.P.C. To set aside a bail granting order if the order is not tenable in law. This view is fortified .By a judgment of the Hon'ble Supreme Court in Ijaz Ahmad v. The State 1974 SCM R 166 wherein leave was refused against the order of this Court whereby bail granted by Sessions Court was cancelled and the Hon'ble Supreme Court observed as under:- "The contention that the High Court had no power to cancel the bail granted by the learned Sessions Judge under section 498, Cr.P.C., is clearly misconceived, for the High Court has ample power, under section 439 of the Code, to revise any order passed by a subordinate criminal Court."
' In an earlier case i,e, Nazir v. Amir ud Din and another 1971 SCM R 637 the Hon'ble Supreme Court had set aside the order of the High Court whereby the bail granted by Sessions Judge was cancelled. In the said case, the facts were different and the dictum laid down is distinguishable. In that case, the cancellation of bail was sought on new grounds and the Hon'ble Court observed as under:--- "Even if this be so, we are of the opinion that the Court which granted bail should first have been moved on the basis of the new grounds for the cancellation of such bail. It is only proper that the Court which is seized of a matter should first have an opportunity of considering whether its previous order should be cancelled or not. We cannot approve of the adoption of such a procedure of bypassing the original Court which has already dealt with the matter. The procedure adopted in the present case is, in our opinion, not justified. The High Court should not have been deprived of the opinion of the District Judge in respect of the new grounds set out in the petition of revision in the High Court."
' In the foregoing case before the Hon'ble Supreme Court, the new grounds were the threats which were held out to the complainant and the said threats were never placed before the Court of Session who granted the bail to the accused and the Hon'ble Supreme Court, had held:--- "New grounds upon which the Sessions Judge had not applied his mind could not be foundation for the revision of that order."
In the instant case, there are no fresh grounds and the order has been assailed as being not sustainable in law. The grounds being urged for cancellation are germane to the F.I.R. And record itself. Learned Additional Sessions Judge who granted the bail, prima facie, not only misread the F.I.R. But also the postmortem report. The order being neither proper nor legal is, therefore, amenable to the revisional jurisdiction of this Court.
12. So far as prayer for bail of Muhammad Zubair and Muhammad Tufail is concerned, the role attributed to them is that they alongwith their co-accused i,e, Muhammad Iqbal, Muhammad Mansha and Muhammad Anwar caught hold of Qasim deceased from his legs and arms and asked the others to fire at his chest. The afore-referred co-accused were attributed similar role and Wali Muhammad who was attributed ineffective firing have already been granted bail by this Court by order referred to above. That was in line with the dictum laid down by the Hon'ble Supreme Court in Muhammad Haroon v. The State's case 1994 SCMR 216 wherein bail was allowed to the accused who had allegedly held the deceased alongwith his co-accused at the time of the occurrence and his involvement in the alleged offence, therefore, needed further inquiry. Besides the fact that despite a lapse of one and a half years since registration of the F.I.R. Not a single witness has been examined in trial, the case of the petitioners is at par with the afore-referred co- accused, the concession of bail, therefore, cannot be refused to them either. This would be consistent with the view expressed by the Hon'ble. Supreme Court in Khadim Hussain v. The State 1982 PSC 1332 wherein the accused were granted bail as their case was absolutely at par with those who had already been granted bail.
' For what has been discussed above, the order dated 13-8-1995 passed by learned Additional Sessions Judge, Bahawalnagar is set aside and the bail granted to Bagh Ali and Muhammad Abbas is cancelled. Petitioners Muhammad Zubair and Muhammad Tufail are, however, admitted to bail in case F.I.R. No,177/94 dated 28-8-1994 Police Station, Minchanabad provided they furnish bail bonds in the sum of Rs,50,000 each with one surety each in the like amount to the satisfaction of learned trial Court.