' Applicant Qurban Ali cited as an eye-witness in Crime No,33 of 1994 of Police Station Drigh Sessions Case No,484 of 1994 pending before the Court of Additional Sessions Judge, Kamber seeks the cancellation of to the respondents by the trial Court vide order, dated 6-7-1995.
2. Precise allegation against the respondents is that on 6-8-1994 duly armed with shot guns along with co-accused Mann carrying a hatchet fired from their guns resulting into instantaneous death of deceased Ahmed Ali. The incident took place in the broad daylight at 9-30 a.m. And in front of shop of Abdul Haq at village Hamzo Chacho witnessed by Qurban Ali and Imdad Ali apart from complainant Haji Roshan Ali.
3. In the first instance respondents approached the High Court of Sindh, Sukkur Bench for grant of protective bail which was allowed up to 20-10-1994 in order to enable them to approach the Court concerned. Later, they moved an application for bail before arrest before the Court of Sessions Judge, Larkana which was declined vide order, dated 24-10-1994. It is said that during the course of investigation they arranged a certificate of their presence of P.A.F. Base, Shorekot on the fateful day since one of their relatives was employed over there. On the plea of alibi so raised, investigating agency placed their names in column No,2 of the challah and did not prosecute them. At the instance of complainant Haji Roshan Ali, this certificate was subsequently cancelled by P.A.F.
Authorities with the result that the applicants were arrested and brought to trial. The case was transferred to learned Additional Sessions Judge, Kamber where they moved an application for bail which was allowed vide order, dated 6-7-1995.
4. Main consideration which weighed with the learned trial Court was the so-called inconsistency between the medical and ocular evidence inasmuch as at the time of autopsy Medical Officer had found two fire-arm wounds on internal examination of the dead body.
5. Learned counsel for the applicant pressed cancellation of bail on the grounds firstly that the respondents mala fide manipulated a certificate to prove their alleged alibi; secondly that they had obtained bail from the trial Court by suppression of material facts and thirdly that there is no inconsistency between the ocular and the medical evidence.
6. There is a considerable force in the submission of the learned counsel when he states that prima facie there is no inconsistency between the ocular and the medical evidence inasmuch as in the F.I.R. It is claimed that the respondents duly armed with guns had fired shots at the deceased. It does not say that all the shots actually hit the deceased. At any rate, presence of two fire-arm wounds on the person of the deceased at the time of post-mortem examination would not render the prosecution case totally false or be sufficient to exonerate the respondents of their liability under the law. Suffice to say, at the stage of bail deeper appreciation of evidence cannot be undertaken so as to touch the merits of the case and prejudice case of either of the parties. This was the view taken in the case of Muhammad Sarwar v. The State 1982 SCM R 257. In my view it would have been appropriate for the trial Court to deal with this aspect of the case at the trial and not discussed the merits of evidence at the stage of bail by saying that there was a general allegation of firing against the respondents.
7. It would further appear that though the respondents had earlier approached the High Court as well as the Court of Session for protective bail and bail before arrest but these facts were not brought to the notice of the trial Court while seeking bail after arrest. This circumstance, prima facie, would show that the respondents did not approach the Court with clean hands and attempted to suppress the material facts, thereby disentitling them to discretionary relief of bail.
8. It is settled, that normally High Court does not interfere with the exercise of discretion in the matter of bail but when interference is inevitable, it is under a duty to do so in order to secure the ends of justice and to do complete and substantial justice to the parties. In a case of broad daylight incident, witnessed by three persons, names of the assailants being promptly mentioned in the F.I.R., and corroboration by medical evidence, the case was not at all fit for exercise of discretion of bail in a case of capital punishment. Even no case for further enquiry was made out.
Ordinarily bail should not be allowed in murder cases especially when allegations in F.I.R. If left unrequited would render the applicant to sentence of death or life imprisonment. I am, therefore, of the view that while granting bail to the respondents, trial Court acted illegally and in violation of the settled principles for the grant of bail. It is in these, circumstances that even the learned Additional Advocate-General did not support the impugned order and suggested for interference by this Court. Learned counsel for the respondents after obtaining six adjournments in this matter has not cared to appear for arguments and it is reported that he has left for Karachi with private business.
9. For the aforesaid reasons to the respondents is cancelled. They shall be taken into custody and remanded to jail with. Directions to produce them before the Court of Additional Sessions Judge, Kamber.
Bail cancelled.