1. ' Applicant Ghulam Nabi who is the first informant in this case has sought cancellation of pre arrest bail granted to Imtiaz Ahmed respondent No, 2 by learned Sessions Judge, Shikarpur.
2. ' The allegations as gathered from the F.I.R. Are that few days prior to this occurrence there was an altercation between deceased Deedar Ali and one of the accused namely Abdul Ralieein. On 31-8- 2001, Deedar Ali after closing his office was going through the lane, when five accused persons namely, Abdul Raheem alias Juhail, Suhail, Irntiaz, Abdul Hakeem and Shabu attacked him and on the instigation of Abdul Hakeem, the other four with their knives inflicted blows upon Deedar Ali who tried to defend himself by hurling stones at the assailants but he received a number of injuries and went unconscious. P.Ws. Manzoor Ahmed and Sikandar witnessed the incident. Deedar Ali died in the Hospital. During investigation, the police examined P.Ws. Manzoor and Sikandar and so also two other witnesses namely Maqbool and Mehboob although their names were not mentioned in the F.I.R. Seven other persons were also examined by the police who stated that the applicant was at Sukkur at the time of occurrence. P.Ws. Maqbool and Mehboob also, stated that they were eye- witnesses and that applicant Imtiaz Ahmed was not among the assailants, however, as against the remaining set of assailants they supported the prosecution case. After investigation while submitting challan Imtiaz Ahmed was placed in Column No, 2 of the challan but the learned Magistrate took cognizance of the offence as against applicant and joined him as an accused person. Non bailable warrants of arrest were ordered to be issued against him on which he approached the Sessions Court where he succeeded in getting pre-arrest bail.
3. ' I have heard learned counsel for parties. Learned counsel for applicant submitted that the Magistrate was competent to take cognizance on the basis of material on record and in this context he relied on Safdar Ali v. Zafar Iqbal 2002 SCMR 1963 and 1986 PCr. LJ. 1206 (Karachi).
4. Learned counsel for accused Imtiaz Ahmed contested this legal point. At this stage it will not be out of the place to mention that learned Sessions Court while granting pre arrest bail has categorically mentioned that this point is being left untouched. Instantly, learned counsel for both parties agree that the above order of the Judicial Magistrate is not being revised by this Court. In the circumstances, I am also inclined to refrain from making an scrutiny of this question.
5. ' Learned Counsel for complainant contended that as per F.I.R. There are three eye-witnesses of occurrence namely complainant Ghulam Nabi and P.Ws.Manzoor and Sikandar whose evidence could not be rejected on the basis of defence version or the evidence of those two whose names are not mentioned in the F.I.R. He urged that active role is assigned to the applicant, of inflicting knife blows and there are injuries on the vital parts of the body of the deceased. On the other hand, learned counsel for respondent Imtiaz Ahmed submitted that as observed by the Honble Supreme Court (see PLD 1995 S.C. 34 and 1997 SCM R 915) that when bail is granted, only under strong and exceptional circumstances the order be interfered with. He mentioned that there is no allegation against Imtiaz Ahmed of violation of the terms of bail. Mr. Sher Muhammad Shar learned Asstt. A.G.
6. Supported the version of learned counsel for the applicant and submitted that the bail may be cancelled.
7. ' On perusal of the impugned order, it transpires that the learned Sessions Court has reiterated in his subsequent order that at least some evidence be brought on record against the applicant at the trial. Admittedly, there are three witnesses who allege that respondent Imtiaz Ahmed inflicted knife blows upon the deceased but there are two other eyewitnesses, one of whom is a dispenser in the Dispensary situated nearby and the other is a Rickshaw driver who stated that they saw the incident but accused Imtiaz was not present at the time of occurrence. No doubt there is sufficient force in the contention that the finding of police on the basis of defence witnesses shall not be given preference over and above the ocular witness but there are two witnesses who in their statements, have given a different version. I agree with the learned counsel for the respondent that some strong and exceptional circumstances be shown and the learned Sessions Court has rightly observed that some evidence may come on the record, therefore, without touching the merits in this regard, I am inclined to observe that the trial Court should in the first instance examine the complainant and two eye-witnesses who may be subjected to cross examination and if as already observed by the Sessions Court some tangible evidence comes on the record, the applicant may, repeat the application for cancellation of bail, Accordingly, the trial Court is directed to record the evidence of material witnesses within a period of three months failing which the applicant would also be at liberty to repeat the application. For the time being the application is dismissed without touching the merits of the case.