' The application for cancellation of bail is moved by complainant Kaka Sayal against respondents Nos. 2 and 3. The respondents Nos. 2 and 3 are facing trial in Sessions Case No, 195 of 1998 under section 302/34, P.P.C., arising out of Crime No,86 of 1998 of Police Station Sakrand.
2. The said case is pending in the Court of Sessions Judge Nawabshah. They were granted bail by the trial Court on 1812-1998.
3. Complainant Kaka Sayal lodged F.I.R. On 24-7-1998 stating wherein that he and his brother deceased Moula Bux were Haris of Ghulam Hyder and were residing in village Yousuf Sayal. About 4 years prior to incident Qayoom son of Opponent Ghulam Rasool was murdered for which son of complainant and son of Moula Bux deceased were blamed to be the murderers and due to which they were not on talking terms with each other.
4. On 23-7-1999 there was Khairat in which complainant his brother Moula Bux and others were invitees alongwith opponents Ghulam Rasool and Sarwar Sial. They all went to sleep after taking dinner in the courtyard of the house of Badaruddin, the uncle of host Lal Khan. At about 1-30 a.m.
Accused Ghulam Sarwar and Ghulam Rasool got up and went outside the house. After about half an hour both of them came back armed with pistols. Ghulam Rasool shouted that nobody should get up and that they would kill Moula Bux as he was responsible for the murder of his son and they would kill him. After saying so Ghulam Rasool fired at Moula Bux and so also Ghulam Sarwar. Moula Bux received fire-arm injury and fell down. The complainant along with other guest did not go near them due to fear.
5. The police took up investigation and after completing the same submitted challan.
6. It is contended by Mrs. Salima Nasiruddin learned counsel for applicant that the only ground which prevailed with the learned Sessions Judge was that there was conflict in between ocular evidence and medical evidence but he has not stated the nature of said conflict in between the two. The other ground which the learned Sessions Judge has disclosed in his order is the delay of 5 hours in lodging the F.I.R. The further ground which found favour with the learned Sessions Judge was the enmity disclosed in the F.I.R. It is contended by learned counsel that the enmity alleged in the F.I.R. Is the motive for committing the offence and that the delay of 5 hours is explained in the F.I.R. Itself. It was night time and due to non-availability of conveyance, the complainant remained there and that after making the arrangement he had gone to lodge the report. The main ground that has convinced the learned Judge for grant of bail is alleged conflict in ocular evidence and the medical evidence but the same is not explained by him as to what was the said conflict.
7. It is contended by Mr. M.M. Kazi learned counsel for respondents Nos.2 and 3 that the bail has rightly been granted by the learned Sessions Judge. He has stated that the enmity between the parties is admitted in the F.I.R. He has contended that the ocular evidence is in conflict with medical evidence. He argued that F.I.R., is delayed for 5 hours with no explanation.
8. Mr. Sharafat Ali Khan learned State Counsel has opposed the impugned order and has stated that bail is wrongly allowed to the respondents Nos.2 and 3. The finding that ocular evidence is in conflict to medical evidence is misconceived.
9. The perusal of record shows that complainant, his brother deceased and the accused were sleeping in the court-yard of the house of Badruddin Khan. Both the accused went out of the house and came armed with pistols. Both of them opened fire on the deceased and killed him. The motive is narrated in the F.I.R., showing that son of Moula Bux and the complainant were held responsible for causing the death of Qayoom son of accused Ghulam Rasool. The delay of 5 hours is explained in the F.I.R. Itself. The complainant has stated that it was a night time and he could not arrange for the conveyance. The alleged conflict in the medical evidence has not been explained by the learned Judge as to what kind of conflict was appearing the record which convinced the learned Judge to grant bail. The witnesses have stated that both accused fired from their respective pistols and post-mortem report indicates five fire-arm injuries including exit and entrance wounds on the person of deceased. I do not find any conflict in the said two pieces of evidence at this stage unless the doctor and said eye-witnesses are examined.
10. Anyhow, the conflict in medical evidence and ocular evidence would not be a sole ground for grant of bail in such heinous offence. The reference can be made to a case of Abdul Hai and others v. The State 1996 SCM R 555, wherein their lordships have held as under:--- "After hearing the learned counsel and reading the record, we have not been persuaded to allow bail to the petitioners on the alleged ground of conflict in the ocular account with the medical evidence. After recording evidence, it is for the trial Court to give weight to the prosecution evidence in its own wisdom. Time and again, it has been said by this Court that at bail stage, evidence of the parties could not be assessed/tested in depth. The purpose is to avoid expression of opinion some way or the other on merits of the case. The petitioners have been mentioned in the F.I.R., with clear roles in commission of the crime. These allegations would surely be sufficient on face of them to demonstrate that this was not a case of further inquiry within the meaning of section 497, Cr.P.C. For admission of the petitioners to bail. They are the accused in a case of capital charge. The learned High Court had, therefore, rightly cancelled the bail, which was allowed to the petitioners by the trial Court. It is undoubtedly, within the discretion of the competent criminal Courts to grant bail to the accused even in appropriate murder cases. They are, however, under heavy duty to exercise their discretion fairly, justly and properly which, in many cases, should be based on good grounds to meet the ends of justice. There is, therefore, no substance in this position which is dismissed by refusing leave to appeal."
11. The accused have caused a cold blooded murder of deceased Moula Bux. The strong ocular evidence is appearing against them. The learned Sessions Judge has ignored that the witnesses were the natural. The names of accused transpired in F.I.R., wherein both the accused were assigned specific role of firing. It was a fresh matter of July, 1998 and after 5 months the bail was granted to respondents on flimsy grounds. Both of them fired and caused murder of deceased Moula Bux. The reference can be made to a case of Rana Mohsin Qazilbash and others v.
Muhammad Usman Malik and another 1999 SCM R 1794 wherein their lordships have held as under:- "This was a dastardly act on the part of the respondent and others and in no way reasonable grounds existed to believe that the respondent had not committed offence punishable with death or life-imprisonment. In this view of the matter, we convert this petition into appeal, allow the same and recall the ing bail to the respondent. The respondent shall be taken into custody forthwith."
12. The learned Sessions Judge has not given the finding that there was no reasonable grounds for believing that the accused had not committed a non-bailable offence before granting the bail, unless there is such finding, no bail can be granted on the ground of further enquiry. The reference can be made to a case of Mst. Reham Jan v. Abdur Rehman 1991 SCM R 1849 wherein their lordships have held as under:--- "Regarding the a for noted legal questions the learned Advocate-General, N.-W.F.P., has stated that in future he would himself if appear in the High Court in bail matters arising out of murder cases and that he would, in cases-like the present one, plead the need for a founding to the effect that there are 'no reasonable grounds for believing that the accused has committed a non-bailable offence,' if the bail is to be granted on the plea of ' further enquiry'. He has also undertaken to place before the Hon'ble Judges of the High Court the law laid down by this Court on this question."
13. Ocular evidence is available against accused, strong motive is suggested in F.I.R., and police statements. Both accused were absconding for some period and on their arrest the alleged pistols used in the crime were recovered from them.
14. The case-law produced by the learned counsel for respondents Nos.1 and 2 has no relevance with the facts and circumstances of instant case.
15. In this case there is an additional ground that the accused after being released on bail have extended threats to the complainant party and have misused the concession of bail by threatening the witnesses. Such letter is produced on record.
16. Taking all the aforesaid circumstances into consideration I am of the view that respondents Nos.2 and 3 were not entitled to bail. The same is hereby cancelled. They shall be taken into custody and the trial Court shall take further steps in accordance with law in this behalf.
17. The above observations are tentative and the final judgment should be based on evidence recorded during trial.
Bail cancelled.