1. ' Complainant of F.I.R. No,34 of 1997, Police Station Dari Larkana has filed this petition for cancellation of bail under section 497(5), Cr.P.C.
2. ' Brief facts of the above F.I.R. Are that on 11th May, 1997 at about 10-30 a.m. While complainant alongwith his brother and relatives including deceased Ali Hyder and injured Hakim Ali were going back to their village from Larkana, they were intercepted by three persons including respondent No,1 who was armed with gun. The complainant party was attacked and as a result Ali Hyder received injuries on his stomach and was removed to C.M.C. Hospital, Larkana where he breathed his last. The background for alleged incident as narrated in F.I.R. Is that there was an earlier dispute regarding distribution of water and it was alleged by the accused party that the present complainant Suhno was instrumental in the said dispute. In this alleged background, the above F.I.R. Was lodged under section 302/34, P.P.C. Against the three persons.
3. ' On 13th September, 1997, the present accused/respondent No,1 was arrested from Village Ismail Umar Taluka Larkana and was under detention till 23rd July, 1999 when he was granted bail by the learned 1st Additional .Sessions Judge, Larkana. The first bail application was filed on behalf of Sikandar which was rejected by the 1st Additional Sessions Judge on 3rd March, 1998. Being aggrieved with the said order, bail was preferred before this Court bearing Criminal Bail Application No,88 of 1998 which was withdrawn and was, therefore, dismissed as withdrawn by this Court on 11- 11-1998. For the third time a fresh bail was moved before the trial Court which was heard and was granted for the following reasons:-- "I have considered the arguments advanced by both the sides and perused the record. At the time of challan the applicant/accused was shown as absconder and thereafter he was arrested on 13- 9-1997 and no recovery has been made from the applicant/accused. The applicant/accused is present in Court and his hand is checked and found to be defective. The enmity between the parties is admitted. Therefore, case against the applicant/a 'used requires further enquiry.
4. Moreover, the applicant/accused has remained in jail for more than 21 months."
5. ' I have heard Mr. Sarfraz Khan Jatoi, Advocate for the applicant, Mr. Aftab Ahmed Gorar, Advocate for respondent No,1/accused and Mr. Ali Azher Tunio, Assistant Advocate-General for State. I have also gone through the record filed with the petition and produced during hearing of this application for cancellation of bail. It was contended by Mr. Sarfraz Khan Jatoi that the ground upon which the second bail application was granted were available at the time of first bail application, and therefore, the learned 1st Additional Sessions Judge, Larkana was not competent to grant the same. It was further contended that the ground that accused Sikandar is a disabled person is the personal opinion of the learned trial Court and could not be made ground for grant of bail. In the circumstances it was argued that the ing bail is illegal, void in law and the same requires cancellation. He has placed reliance on the cases Rafiullah v. The State and another 1998 SCM R 356 and Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another 1999 PCr.LJ 1.
6. ' Learned Assistant Advocate-General has supported the cancellation of bail on the grounds urged by Mr. Sarfraz Khan Jatoi. According to the learned Assistant Advocate-General, there was no fresh ground available at the time of subsequent bail application, and therefore, the same was not entitled to be granted. He has placed reliance on the cases Karamat Hussain v. Faraqat and 4 others PLD 1987 SC (AJ&K) 27 and Muhammad Arshad v. The State and another 1997 SCM R 1275.
7. ' Mr. Aftab Ahmed Gorar learned counsel for the respondent/accused has wholeheartedly supported the order of the learned 1st Additional Sessions Judge, Larkana granting bail to this accused. According to the learned counsel, the trial Court has rightly considered that the present accused being disabled was not fully fit to commit the alleged offence. He has referred to an unreported case of this Court in Criminal Bail Application No,72 of 1997 (Allah Din and another v. The State) where a learned Single Judge of this Court granted bail to an accused person on the ground, inter alia, that the said accused was disabled having only one arm and, therefore, could not use the gun. I have gone through the said order. There were other grounds also which when considered jointly made the said accused entitled for grant of bail. Learned counsel for accused has also filed statement and certified copy of F.I.R. No,100 of 1999, dated 26th August, 1999 of Police Station Taluka Larkana wherein the present applicant is shown as one of the co-accused. On this basis it was argued that how the complainant has beccome absconder in that case and there is no likelihood of conclusion of trial of the instant case at an early date. These allegations have been refuted by Mr. Sarfraz Khan Jatoi counsel for the complainant. Be that as it may, this ground cannot be considered at this stage as the instant controversy does not revolve on the ground of grant of bail on delay in trial.
8. ' Mr.. Aftab Ahmed Gorar has further contended that after release of the present accused on bail, there is no allegation that the same was misused and, therefore, the same could not be cancelled.
9. He has placed reliance on the following cases:--
(1) Government of Sindh and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1285.
(2) Syed Amanullah Shah v. The State and another PLD 1996 SC 241.
(3) Mazher Mehmood v. Basit and another 1997.SCM R 915. '
(4) Moula Bux v. Shadan and others 1997 PCr.LJ 1573.
10. ' In the case of Raeesa Farooque (supra) bail was granted by a learned Single Judge of this Court against which the Government of Sindh went in appeal where one of the allegations was that the respondents have jumped the bail and did not attend the investigation whenever called upon to do so. Such grounds were held by Honourable Supreme Court to be vague and of general in nature, which could be raised at any time against any accused. It was further observed that once bail has been granted the prosecution should have made out a strong case for cancellation by giving substantive proof in support of their allegations. In the case of Syed Amanullah Shah (supra), again it was held by Honourable Supreme Court that very strong and exceptional grounds are required for cancelling a bail granted by a Court of competent jurisdiction. Same view was reiterated by another Bench of Honourable Supreme Court in the case of Mazher Mehmood (supra). In the last cited case (Moula Bux supra) a learned Single Judge of this Court declined to cancel the bail granted to the accused while referring to the case of Ashique Hussain v. The State 1993 SCM R 417 and held, inter alia that it can be cancelled if the accused person misused the same or indulged into activities nefarious for the prosecution. In the instant case, these rules would not attract as the allegations of the complainant/petitioner are that the bail was granted while hearing the subsequent bail application and that all the grounds considered by the learned trial Court were available at the time of first bail application. There is no cavil to the proposition that once a bail has been granted on merits after due consideration of facts and after due consideration of law laid down by the superior Courts, it could not be recalled unless there exists some exceptional circumstances.
11. ' How and under what circumstances the subsequent bail application would lie and could be granted, this was decided by a Full Bench of Honourable Supreme Court in the famous case of the State v. Zubair and 4 others PLD 1986 SC 173. It was held, inter alia, that the grounds which were available at the time of first application, even if not considered, it will be presumed that the same were considered and rejected and that the second or subsequent bail application would lie when there is new and fresh grounds aroused after dismissal of the first bail plea. In the instant case, the ground that no recovery was effected from the present accused was available at the time of first bail application. The learned 1st Additional Sessions Judge has noted the fact that at the time of submission of first challan the present applicant was shown as absconder but has not discussed the consequences of such absconscion for considering grant or refusal of bail.
12. ' It was forcibly argued on behalf of the complainant that the question of accused being disabled and thereby not capable of using gun is a question of fact and could only be resolved at the stage of trial. The learned trial Judge ought to have referred such question to a medical expert to determine this question but instead of that, he assumed role of a medical practitioner and has given medical opinion that the accused is incapable of committing the offence. This observation is absolutely unwarranted and has greatly prejudiced the case of complainant. The cases cited by Mr. Sarfraz Khan Jatoi and Mr. Ali Azher Tunio all support the contention that where the bail order is patently illegal and factually incorrect it is to be recalled irrespective of the fact whether such accused has misused the bail privilege or not. Such illegality will not be cured by the subsequent acts of the accused.
13. ' As a result of above discussion, I am of the considered view that there was no justification or ground available for granting bail to the present accused during hearing of the second bail application which is accordingly recalled and the ing the bail is hereby set aside.
14. ' A copy of this order may be forwarded to the Member (Inspection Team) High Court for taking necessary action. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.