' By this application under the provisions of section 497(5), Cr.P.C. Advocate-General, Sindh as Public Prosecutor for the Government of Sindh seeks an order for cancellation of bail granted to the respondent on 3-1-1996 by Mr. Muhammad Ijaz Hussain, Additional Sessions Judge, Shikarpur acting as Incharge Sessions Judge, Shikarpur.
2. Respondent is the principal accused in Crime No,23 of 1995 registered at P.S. Gaheja relating to the murder of deceased Qamaruddin. Unfortunate episode took place on or about 28-4-1995, wrongly described as 28-6-1995 in the impugned order, on the lands of one Andal at Gaheja, Taluka Garhi Yasin. It is said that co-accused Roshan persuaded party of complainant Kauro to accompany him to the party of Chanesar for settlement and when they reached at the given place respondent duly armed with a shot gun alongwith his brothers Latif and Chanesar carrying Lathis came across the complainant party. At the 'lalkara' raised by Roshan respondent fired a gun shot at the deceased which missed the target and the deceased tried to run away but he stumbled on the lands, whereupon respondent fired a second gun shot at him which resulted in the unnatural death of the deceased instantaneously. Report of the incident was lodged the same night after a couple of hours and upon investigation respondent as well as co-accused were brought to trial.
3. Learned lower Court has exercised the discretion of grant of bail for the reasons firstly that there was no source of light as such the identification could be mistaken; secondly that co-accused Roshan had been let off by police and thirdly that possibility of false implication of the respondent could not be excluded.
4. Learned Assistant Advocate-General has pressed for cancellation of the bail for the reasons that in the first instance Additional Sessions Judge was not duly authorised to hear the bail application on behalf of the Sessions Judge who was casually away from Headquarters for jail trial at Sukkur and secondly that' bail of co-accused Latif and Chanesar having been granted by the learned Sessions Judge, bail application of the respondent should have been placed before the same Judicial Officer keeping in view the rule of consistency and more particularly the dictum laid down by the apex Court in State v. Zubair (PLD 1986 SC 173) reiterated in Muhammad Taj v. Muhammad Akbar (1997 SCM R 1336). There is no material on record to suggest that the learned Sessions Judge was unable to perform his functions for a long period or that Additional Sessions Judge as duly authorised to transact urgent judicial business on behalf of Sessions Judge. Impugned order, thus, apparently suffers from lack of jurisdiction as there is absolutely no mention in the impugned order as to how learned Additional Sessions Judge assumed the jurisdiction to act on behalf of Sessions Judge because the bail application could have been postponed owing to casual absence of the Sessions Judge.
5. On merits as well as the facts of the case did not warrant the exercise of" discretion of grant of bail in an offence chargeable with capital punishment more particularly in view of specific role assigned to the respondent in the commission of the crime. In case co-accused Latif and.
Chanesar were admitted to bail or Roshan was spared by Investigating Agency it did not furnish any valid and legal ground for the extension of some concession to the present respondent whose case stands on different footing and on different set of evidence. At any rate, in case bail had been granted to Latif and Chanesar by learned Sessions Judge, applicant should have also taken his chance to be heard by the Sessions Judge instead of an Additional Sessions Judge. As regards likelihood of mistaken identity, learned trial Court appears to have twisted the facts with mala fide intention inasmuch as the parties were known to each other and the complainant party was lured by co-accused Roshan to have a dialogue for settlement of the dispute with the party of the accused. In the face of this circumstance, it is neither just nor fair to hold that this could be a case of mistaken identity.
6. No doubt concession of bail is not withheld as a matter of punishment,fact of the matter remains that where specific part is assigned to a person and prima facie his involvement in the commission of an offence falling within the prohibitory clause is made out he is not entitled to the concession of bail. It is only in cases where there are reasonable grounds for believing that the accused may not be guilty of the offence charged with and his case called for a further enquiry when the discretion of bail is to be exercised in his 1 favour. No such finding even though tentative has been recorded by the learned Judge granting bail to the respondent which is patently illegal and without jurisdiction.
7. For these reasons impugned ing bail is set aside and respondent remanded to custody to face his trial. A copy of the order may be sent to the Registrar for information and perusal of the Honourable Chief Justice.
' Bail cancelled.