This is an application made on behalf of the applicant Mian Khurshid Ahmed under subsection (5) of section 497, Cr.P.C. Seeking cancellation of bail granted to the respondents namely Muhammad Azeem and Muhammad A.I both by case Chacher involved in Crime No.64 of 1994 of Police Station Kashmore, under sections 302, 120-B, 114, 34, P.P.C. And section 13-E Arms Ordinance, by IInd Additional Sessions Judge, Kandh Kot vide order dated 22-8-1995.
The prosecution story is that on 24-6-1994, applicant/complainant Mian Khursheed Ahmed alongwith his deceased father Mian Ellahi Bukhsh Farooqui, P.Ws. Munir Ahmed and Zahid Ahmed were returning after offering 'Juma' Prayer, when they reached near the Bhutta Street at about 2-45 p.m., suddenly, two persons armed with guns and with open faces came there. One of the culprits instigated the other accused to fire at Mian Ellahi Bakahsh, whereupon that other accused directly fired at Mian Ellahi Bakhsh which hit him on the chest and he fell down on the ground. Then another accused also fired at Mian Ellahi Bakhsh which also hit him and then both the culprits made their escape good on their black coloured motorcycle. The applicant then saw that Mian Ellahi I3akhsh had expired due to gunshot injuries and complainant left P.Ws. Munir AA med and Zahid Ahmed on the dead body and went to police station and lodged the F.I.R. As Crime No.64 of 1994.
During the course of the investigation police examined P.W. Din Muhammad Malik and recorded the further statement of the applicant/complainant who disclosed the names of the culprits as Muhammad Azeem son of A.I Sher Chachar and Muhammad A.I son of Sanwal Chachar, to have caused the death of his father with fire-arms and escaped from the scene of the offence on a black motorcycle. That police arrested both the accused/respondents who produced both the guns, used in the crime, and surrendered their motorcycle and disclosed in the police interrogation that 12 others co-accused namely,
1. Muhammad Shahban,
2. Bashir Ahmed,
3. Muhammad Ayub,
4. Rashimdil,
5. Muhammad Amin,
6. Dango,
7. Laiq Muhammad,
8. Gulsher,
9. Allah Ditta,
10. A.I Bux,
11. Sanwal and
12. Aziz, were involved in conspiracy for the murder of deceased Mian Ellahi Bakhsh Farooqi. That police also secured two empties from the scene of the offence and both the respondents were picked up in the identification parade before the Magistrate by the applicant as well as the prosecution witnesses. That 12 co---accused were granted bail by Justice Abdul Rahim Kazi, as his Lordship then was, in Cr. Bail Applications Nos. 2 and 3 of 1995 on 25-6-1996. The present respondents were granted bail by the learned IInd Additional Sessions Judge, Kandh Kot on 22-8-1995.
I have heard Mr. Shaukat Hussain Zubedi, learned counsel for the applicant and Mr. Agha Zafir A.I, learned counsel for the State. Respondents as well as Mr. Mirza Saeed Beg, learned counsel for the respondents called absent.
It is stated by Mr. Shaukat Hussain Zubedi that although names of the respondents are not mentioned in the F.I.R but their names were subsequently disclosed in the further statement of the applicant/complainant Mian Khursheed Ahmed and P.W. Deen Muhammad Malik and a specific role is assigned to the respondents by the eye-witnesses that both the respondents fired at the deceased and then escaped from the scene of the offence on a black motorcycle. That the statement of the eye-witnesses gets support from the post-mortem report in respect of deceased Mian Ellahi Bakhsh that he has received gunshot injuries on his person. It is further contended that respondents were picked up in the identification parade before the Magistrate by the eye- witnesses and two shotguns were recovered from the respondents and two empties were also secured from the scene of the offence and moreover the report of the ballistic expert is in positive and the F-.I.R. Was lodged promptly. It is further contended by the learned counsel for the applicant that there appeared reasonable grounds to believe that respondents Nos.1 and 2 have committed the offence of murder falling within the prohibitory clause of section 497, Cr.P.C. And consequently the order by which the bail was granted to them is perverse and liable to be set aside. Learned counsel has also relied on Abdul Sattar v. The State 1991 PCr.LJ 2307.
Mr. Agha Zafir A.I, learned counsel for the State has supported this application that incident has been witnessed by the complainant/applicant and two eye-witnesses namely, Muneer Ahmed and Zahir Ahmed. That two shot guns, two empties and a black motorcycle have been recovered from the respondents Muhammad Azeem and Muhammad A.I and that both were identified in the identification parade before the Magistrate by the applicant as well as both the prosecution witnesses and that ballistic expert's report is in positive and medical evidence is in consistent with the prosecution version. Lastly, that trial Court has not applied his judicial mind while deciding the impugned bail application.
Respondents Muhammad Azeem and Muhammad A.I were called absent and their advocate Mr. Mirza Saeed Beg was stated to be present in the Court early in the morning but when this matter was taken up at 10-00 a.m. He was called absent and I then took the matter at 11-30 a.m. And again Mr. Mirza Saeed Beg was called absent. Although I waited for the learned counsel for the respondents for nearly 3 (three) hours but he chose to remain absent and his clients, both the respondents, were also absent.
Unmerited grant of bail in a murder case which itself was so brutal and horrible, is bound to produce a sense of despair and frustration and the power of cancellation of bail, though of an extraordinary nature, is meant to be exercised in the cases of this nature.
That in the case of Hafiz Khuda Bux and another v. The State reported in PLD 1988 SC 413 a criteria was laid down for the grant of bail and it was held:----- "But considerations regarding bail under section 497(1) and (2) are different:--
(i) If, there appear reasonable grounds for believing.---as visualised in prohibitory part of section 497(1) bail shall not be granted (exceptions apart);
(ii) If, no such positive finding, though tentative, can be rendered against the accused then bail can be refused but ordinarily it is not refused without some cogent reasons:
(iii) If, however, there is a negative finding though tentative, on consideration of entire material, as envisaged by section 497(2) that there are no reasonable grounds for believing ..' then bail shall not be withheld:
(iv) If, there is no finding as is mentioned above in category (iii), bail cannot be granted in a case falling in a prohibitory part of section 497(1) (exceptions apart) merely on the ground that there is scope for ' further enquiry'. There will hardly be any case in which there is no scope for further enquiry. This is often being ignored by the Courts. "
Applying the established principles laid down by the superior Courts for the grant of bail in a case punishable with death or imprisonment for life, to the facts of the present case, it appears to me that the learned IInd Additional Sessions Judge, Kandh Kot, had exercised the discretion improperly, There is ample evidence on the record connecting the respondents Nos. l and 2 with this crime.
Besides, complainant Khursheed Ahmed, P. Ws. Muneer Ahmed and Zahid Ahmed claimed to have witnessed the incident. The alleged incident took place in broad daylight when deceased was returning after offering ' Juma' prayers alongwith his son applicant Mian Khursheed Ahmed and, therefore, there was hardly any possibility of mistaken identification. Although the names of the respondents are not figured in the F.I.R. But after the further statement, recorded by the police, of the applicant and P.W. Deen Muhammad, names of the respondents were disclosed to be Muhammad Azeem Chacher and Muhammad A.I Chacher which was lodged promptly and a specific role was assigned to each of them. The number of injury on the person of deceased shows that two persons have fired at him as two empties were also recovered from the scene of the offence. It is also alleged that two shot guns and a black motorcycle were also secured from the abovesaid respondents and they were properly picked up in the identification parade held before the Magistrate by the prosecution witnesses. Although Justice Abdul Rahim Kazi, had granted bail to 12 co-accused who were not named in the F.I.R. But they were implicated by the present respondent that they were involved in conspiracy with them to murder Mian Ellahi Bakhsh and in the said order his Lordship observed:----- "From the abcve discussion I am of the view that this is a case which calls for further inquiry at least in the case of present applicants. However, as regards the case of co-accused Azim and Muhammad A.I the inference would be otherwise."
Having regard to the above factual and legal position, the application made under subsection (5) of section 497, Cr.P.C. Is allowed and bail granted to respondents Muhammad Azeem Chachar and Muhammad A.I Chachar by IInd Additional Sessions Judge, Kandh Kot, vice order dated 22-8-1995 is cancelled. The said respondents shall surrender before the trial Court which will take necessary steps for their arrest if they fail to surrender before it.
The learned Sessions Judge, Jacobabad is also directed, in the interest of justice, to withdraw this case from the file of learned IInd Additional Sessions Judge, Kandh Kot, either to his own file or transfer it to the Court of 1 Additional Sessions Judge, Kandh Kot.
Application allowed.