1. This is an application under section 497(5), Cr.P.C. For cancellation of bail moved by applicant Hidayatullah against respondents Shahan and Qasim, who were granted bail by Sessions Judge, Khairpur (Mr. Syed Sajjad Hussain Shah) on 23-2-1995, in an offence punishable under section 302, Qisas and Diyat Ordinance read with section 34, P.P.C.
2. Brief facts leading to this application for cancellation of bail are that the applicant had lodged F.I.R., being Entry No.9 in the Roznamcha at Police Post Piryaloi on 27-11-1994 at 4-00 p.m. Stating therein that he and his father Umaid A.I had gone from their village to Kot Mir Muhammad to attend marriage. On the day of incident after breakfast the complainant and his father and relative Moar came to village Piryaloi for purchasing. At about 1-00 p.m. They reached in front of Lahooti Hotel, where Shahan son of Haji Mehro, Qasim son of Miral, Hakim son of Miral, Abdul Majeed son of Shahan, Ghulam Sarwar, Saleh son of Miral all by case Narejo were standing. Upon seeing them the accused party whispered with each other. The complainant party considering them as their enemy moved out and they came at the old bridge of Piryaloi waiting for transport, and after a while at about 3-00 p.m. Shahan and Qasim came on black motorcycle, armed with iron bars. They challenged complainant's father Umaid A.I and then both the accused persons caused blows with iron bars on the head of complainant's father. The complainant and P.W. Moar tried to save Umaid A.I, but Moar also received injuries at hands of accused Qasim. The culprits then ran away on the motorcycle. Umaid A.I died on the spot. The complainant then went to Police Post Piryaloi, where he lodged the F.I.R., which was later on incorporated in 154, Cr.P.C. Book at Baberloi P.S. After usual investigation the accused persons were sent up for trial in the Court of Sessions Judge, Khairpur.
3. First bail application was moved in the Sessions Court, which was rejected by the then Sessions Judge, Mr. Abdul Hameed Abro, on merits, on 8-6-1994. The applicants then moved Bail Application No.627/94 in this Court, which was also rejected by my learned brother Mr. Justice Abdul Lateef Qureshi on 1-8-1994. While rejecting the bail application he had observed as under:--- "In this case report has been lodged within one hour of the incident as such this is absolutely no delay in lodging of the F.I.R. Both the applicants/accused have been assigned specific parts of inflicting injury. Both the applicants come together on a motorecycle, as such, common intention cannot be ruled out. Without recording of the evidence it cannot be said whether the witnesses are interested, because both the parties, complainant as well as applicant-accused, are Narejo by case. I do not find any ground for grant of bail to the applicants at this stage. However, learned trial Court is directed to proceed with the case immediately and applicants/accused can repeat their bail application afresh after some evidence is recorded if so advised.
4. "In view of the arguments of the counsel appearing on behalf of the parties and so also the learned DPP appearing on behalf of State and perusal of case papers. Such as F.I.R., Challan Sheet, so also the Honourable High Court of Sindh at Karachi and the evidence on record, I have come to the conclusion that there is inconsistency in-between the contentions of the complainant in the F.I.R.
5. And the evidence of witnesses, examined in this case specially Mashir Muhammad Qasim. The F.I.R., of the incident i.e. Lodged after delay of one hour, through the place of incident is only one furlong from P.P. Piryaloi. Material witnesses are examined in this case. The applicants/accused are continuously in custody since one and half years. Motive of incident is not disclosed by the complainant, and P.W. Moar in their evidence, though the complainant in his initial report has stated that the applicants/accused murder his father due to dispute between the parties. In the above circumstances, I find that the allegations against the applicants/accused require further inquiry to their guilt who have remained continuously in custody for more than one and half years.
6. The applicants/accused are, therefore, admitted to bail in the sum of Rs.100,000 each and P.R. Bond in the like amount."
7. Mr. Abdul Sattar Chohan, Advocate for applicant/complainant has contended that the learned Sessions Judge has wrongly granted bail to the respondents on the grounds that the respondents have remained in jail for 1-1/2 years and that there was delay in lodging the F.I.R. He has argued that the High Court in its order dated 1-8-1994 had held that there was absolutely no delay in lodging the F.I.R. And that the complainant as well as injured, P.W. Moar have fully implicated the present respondents in commission of the offence. According to him a wrong person was examined as co-Mashir Muhammad Qasim. Actual Mashir as per Mashirnama, is Muhammad Qasim son of Muhammad Usman, case Narejo, whereas Muhammad Qasim son of Muhammad Yaqoob Kandhir has been examined in the trial Court.
8. Mr. Mumtaz A.I Siddiqui, Advocate for the respondents has supported the bail order of the learned Sessions Judge. According to him the applicant shall have filed cancellation application before the trial Court, which Court can hold the inquiry in respect of examination of wrong Mashir.
9. After hearing the learned counsel for the parties and going through the record I have come to the conclusion that the order granting bail to the respondents is neither judicious nor proper. The grounds on which the bail was allowed by the learned Sessions Judge that the accused has remained in jail for 1-1/2 years, there is delay in lodging the F.I.R. And that there is inconsistency between the evidence of the witnesses are totally wrong and baseless. The respondents cannot be released on bail just because they have remained in jail for 1-1/2 years in a murder case As far as delay in lodging the F I.R. As stated by the learned Sessions Judge, is concerned, it was observed by my learned brother Mr. Justice Abdul Latif Qureshi while rejecting the bail of the respondents, that there is absolutely no delay in lodging the F.I.R., but even then the learned Sessions Judge has overruled the findings of the superior Court and granted bail on this ground also. Complainant Hidayatullah is an witness of the incident. In his deposition before the trial Court he has fully implicated both the respondents by deposing as under:-- "At that time, accused Qasim and Shahan came on black motorcycle who were armed with Iron bars. They stopped their motorcycle and came from motorcycle, thereafter they challenged my father Umed A.I. Abovenamed accused gave blows to my father Umed A.I which he received on his head. Both accused had given blows with Iron bar to my father who after receiving injury at the hands of both the accused fell down. Moar tried to save my father, but he also received blow at the hands of accused Qasim over his head with Iron bar. "
10. P.W. Moar, who had also received injury, is an eye-witness. He has fully corroborated the statement of the complainant and has deposed as under:-- "While we were sitting on the bench accused Shahan and Qasim came on motorcycle. They stopped the motorcycle and challenged Umed A.I. Both the accused were armed with Iron bars, who after challenging v. Umed A.I gave blows to Umed A.I with iron bar, which he received on his head. I tried to rescue Umed A.I meanwhile Qasim gave me blow with iron bar which I received on my head. Umed A.I after receiving blows at the hands of both accused fell down and died."
11. Mushir Muhammad Qasim examined in the trial Court as Exh.7, was not an eye-witness, but he has tired to help the respondents in cross-examination.
12. After going through the evidence recorded by the trial Court I am shocked to note that the learned Sessions Judge has granted bail illegally in a murder case on false and flimsy grounds. The prosecution case has become more strong after the evidence of the complainant and injured witness Moar. There were absolutely no reasonable grounds available with the learned Sessions Judge to believe that the case of the respondents requires further enquiry.
13. For the reasons discussed above, I have come to the conclusion that there is strong prima facie case against the respondents under section 302, Qisas and Diyat Ordinance and 34, P.P.C., which is punishable with death. I, therefore, accept this application for cancellation of bail. The bail granted to the respondents by the learned Sessions Judge, Khairpur, (Mr. Syed Sajjad Hussam Shah), is hereby cancelled. The respondents are called absent even today, although their counsel Mr. Mumtaz A.I Siddiqui was directed to produce them. Mr. Mumtaz A.I Siddiqui states that he had conveyed the message to the respondents, but he does not know as to why they have not come to attend this Court. The Sessions Judge is directed to issue. N.B.Ws. Against the respondents and take action according to law.