1. ' I am deciding this case in view of the orders passed by my Lord the Acting Chief Justice in this case on 7-3-1996 wherein his Lordship was pleased to direct that this case may be handled at Larkana Bench according to roster in spite of the fact that bail was granted to one co-accused Hamid by my learned and noble brother Mr. Justice Amanullah Abbasi.
2. ' This criminal miscellaneous application has been filed by the complainant Moula Bux against an order, dated 19-6-1995 passed by learned 1st Additional Sessions Judge, Larkana in Bail Application No,92 of 1995 granting bail to accused Kabil and another order, dated 19-6-1995 again passed by the same Judge in Criminal Miscellaneous Application No,84 of 1995 refusing to cancel the bail granted to accused Akbar and Shadan. The bail application was filed as the three respondents are accused in Crime No,5 of 1994 of Police Station, Hyderi, District Larkana lodged at 5 p.m. On 19-7- 1994. The narration of the complainant in the said F.I.R. Is as follows:-- "It is complained that deceased Anwar Ali is my son who is aged about 40/41 years. He has got a medical store in Naudero Town. Today, I along with my son Anwar Ali, my brother-in-law Lutuf Ali son of Muhammad Ismail Mangnejo and son of my nephew Muhammad Saleem son of Muhammad Ramzan Mangnejo, left for Larkana in our car No,S-9052/Karachi of red colour, with our personal work. Muhammad Saleem was driving the car, Anwar Ali was sitting on front seat while we were sitting on rear seat. At about 16-30 hours we reached near Dobai Octopi Post, the driver slowed down the car due to breakers and town area. We saw five persons namely 1. Shaman son of Shadan Pitafi originally resident Of Saidudero, presently Ayoob Colony, Larkana armed with pistol, 2.
3. Shadan son of Muhammad Paryal Pitafi originally resident of Village Saidudero, presently Ayoob Colony, Larkana armed with shot gun,
3. Kabil son of Arbab Pitafi armed with shot gun,
4. Hamid son of Qadan Pitafi armed with T.T. Pistol,
5. Akbar son of Chakar Pitafi armed with rifle, all residents of Village Saidudero, Taluka Ratodero, were standing on the road, who signalled us to stop the car, but we did not stop, on which all the accused fired upon the car with their respective weapons, which hit on front wind screen at right side and the car went out of the control of the driver and car stuck in the rainy water stored on left side of the road. We all got down from the car due to fear. The accused shouted at Anwar Ali that they would not spare him and kill him. Then Anwar Ali ran in the lane of Muhallah Siddiqui Colony and all the accused also followed him and we also ran behind them while raising cries. Anwar Ali ran inside the collapsed house of Muhammad Saleh Detho. Two accused Shaman and Hamid armed with T.T. Pistols also went inside the house and we also followed them. Thereafter, accused Shadan, Akbar and Kamil gave Hakals not to go near them, else we would be done to death. Within our sight accused Shaman fired upon Anwar Ali with T.T. Pistol which hit him on his front chest and accused Hamid also fired with T.T. Pistol upon Anwar Ali which also hit him on his chest, who fell down while raising cries. Then all the five accused made their escape good with their respective weapons towards east in the street. We went over Anwar Ali had noticed two injuries one on the chest over left breast and one injury on left lower shoulder. He was bleeding and was dead. I while leaving the above witnesses over the dead body of Anwar Ali, have come to lodge report that my son Anwar Ali had purchased 14 Jarebs of land in the village, on which the accused Shadan and others issued threats to Anwar Ali to murder him, because he had purchased the land in spite of their opposition. Therefore, the ahovenamed accused due to the above reason, in their preconcert duly armed with weapons have murdered my son Anwar Ali by causing him fire-arm injuries and have caused damage to the car. I am complainant, the investigation be made."
4. ' In this case, five accused persons are involved namely Shaman armed with pistol, Shadan armed with shot gun, Kabil armed with shot gun, Hamid armed with T.T. Pistol and Akbar armed with rifle.
5. Of these five accused persons, it is stated that Shaman is absconder. No cancellation of bail has been filed against accused Hamid who was armed with T.T. Pistol and for whom direct role has been mentioned that he fired from the T.T. Pistol which hit the deceased person and as a result the deceased person died. Accused H amid was granted bail by my learned and noble brother Mr. Justice Amanullah Abbasi and my learned brother in the order passed by him on 16-11-1995 held as follows:-- "The learned State counsel has opposed the grant of bail on the ground that the plea of alibi raised by accused Shaman was investigated by police and was found to be correct, but as regards case of applicant/ accused Hamid is concerned, he did not appear before the police to prove his alibi.
6. The fact remains that there is a certificate issued by Dr. "F.I.R was lodged without any delay; all persons fired at the car; it is Mumtaz Ali Channar, Senior Medical Officer, Rural Health Centre, Bandhi, District Nawabshah that Abdul Hamid was under his treatment as an indoor patient from 13-7-1994 to 25-7-1994. The date of incident is 19-7-1994. The complainant has specifically named accused Shaman in the F.I.R. But this statement has not been accepted to he true because plea of alibi raised by accused Shaman has been accepted. It can, therefore, he inferred that complainant named a person who was not there. In view of this situation, the benefit can he given to the accused/applicant who has produced certificate to prove his presence on the relevant time and date at a different place. Bail does not mean acquittal. It will always remain open for trial Court to come to a different conclusion on the basis of evidence recorded during the trial proceedings. But the rule of consistency requires that applicant should be given benefit as allowed to co-accused Shaman although both are named in the F.I.R. And part has been assigned to them. One has been released and others i,e, present 'applicant is detained. All these facts taken together make out a case where further enquiry is required, but it will remain open for the trial Court to come to any conclusion after evidence is recorded in the case. There is a decision of Honourable Supreme Court on the point of alibi which is relevant and the said decision is reported in 1993 SCM R 417. The relevant portion in paragraph 23 is as under:-- ' Defence plea is that applicant Ashiq Hussain did not participate in the incident as he was admitted in the hospital with injuries at the relevant time. Defence plea is supported by C.W.1 Dr. Sajjad Hussain in Civil Hospital, Daska, on the day of incident at 9-15 p.m.'
7. ' The concluding para. Of this paragraph is as under:-- ' This defence plea even if not proved is sufficient to cast doubt in credibility of the prosecution case, which has already become doubtful for the facts and reasons mentioned above'.
8. ' Thus, on tentative assessm ent, it is a case where further enquiry is required as the Medical Officer and his record can be examined during the trial proceedings. In view of case-law and facts mentioned above, I grant bail to the applicant subject to furnishing of surety in the sum of Rs,1,50,000 (Rupees one lac fifty thousand only) and P.R. Bond in the like amount to the satisfaction of trial Court."
9. ' Learned counsel for applicant/complainant Mr. Muhammad Afzal Soomro has assailed the impugned orders granting bail and refusing cancellation of bail and contended as follows:-- ' broad daylight incident and as such there is no case of mistaken identity; there are three eye- witnesses of the crime namely complainant and other two persons sitting in the car, there is strong motive attributed for killing deceased Anwar Ali."
10. ' His additional plea in respect of Kahil was that he was granted bail before arrest as such the considerations for the grant of hail before arrest are materially different from the Considerations applicable to the grant of bail after arrest. His further contention was that the gun was recovered from Shadan on 27-8-1994 and from Akbar on 7-9-1994 as well as the four empties which have been sent to the Ballistic Expert and no report has been furnished so far. According to him, at this stage, the bail granted to the accused persons could not be granted as even the benefit of doubt cannot be extended to them. On my enquiry as to why application for cancellation of bail has not been filed against accused Hamid to whom direct role has been mentioned in the F.I.R., the learned counsel for applicant/complainant stated that, that bail application was granted after this bail application was filed. Such justification, I am afraid, is not tenable as no law prevents the applicant to file cancellation of bail if it was granted for the , consideration not known to the legal principles.
11. Suffice to say that the hail application of accused Hamid was granted because the entire story of the prosecution due to the alibi taken by one accused person was considered by my learned and noble brother to he one such circumstance extending the hail to the accused person Hamid.
12. The bail granted to the accused persons by the Court can be cancelled if the accused persons misuse the concession of bail and indulge into the activities nefarious for the prosecution or for stifling the prosecution through pressure on the witnesses concerned but not on merits because once the bail has been granted while considering the merits of the case, it cannot be cancelled because different version was available and was not considered by the Court. Additionally as remarked by my learned brother that the plea taken by accused Shaman regarding his alibi clouded the mystery over the case of prosecution and till that mystery is undone through positive evidence, the clouds will always hover, over the story of prosecution.
13. ' Consequently, therefore, I am afraid, the applicant has not made out any case for the cancellation of bail extended to the accused persons.
14. ' Under the circumstances, this criminal miscellaneous application, therefore, is dismissed Petition dismissed.