1. ' Complainant Nazar Masih through this criminal miscellaneous application has sought the cancellation of to Shera Masih by this Court vide order, dated 27-3-2001 and rest of the respondents granted by the trial Court on the basis of aforesaid bail order passed by this Court.
2. ' The brief facts of the case are that on 14-12-2000 the F.I.R. Of complainant Nazar Masih was recorded wherein he stated that his maternal-uncle and uncle Ashraf were residing near the residence of Ilyas Masih. For the last about few days the dispute was going on between them. On the date of incident at about 10-30 hours amicable settlement was to be made through Nakemards namely Sardar Ghazi Chakwala Khan Pangoowala and others who tried to pacify the situation. The settlement talks were to be held at the house of his brother Ashraf but the same were postponed for the next day. After some time some persons namely Ilyas Kala, Ajaz and Yaqoob alongwith their father Shera and Abbas gathered at the roof of house of Ilyas. They started abusing the women-folks of complainant and his son Nadeem who were available on the roof of the house of Bushra. In the meantime, Ilyas fired from his .12 bore gun towards Nadeem who sustained injuries and fell down on the roof. The remaining accused were armed with T.T. Pistols. They opened fire but they went ineffective. Injured Nadeem was removed to hospital in a Rikshaw but he died on the way.
3. ' The complainant proceeded to police station and lodged the report. The police took up investigation and submitted the challan against present respondents Nos.1 to 4 and absconding accused Ilyas and Abbas Masih. The accused Shera Masih applied for pre-arrest bail which was declined to him by learned IVth Additional Sessions Judge, Karachi Central and was taken into custody. He subsequently applied for post-arrest bail which was granted to him by this Court vide order, dated 27-3-2001. On the basis of order passed by this Court, accused Qadir, Nazar, Yaqoob and Ajaz Masih were also granted bail by the trial Court.
4. ' The cancellation of bail is sought on the ground that the applicants have misused the concession of bail and they started issuing threats to the complainant party to withdraw their case. The accused after their release caused injuries to Nasir Masih, the younger brother of Nazar Masih, (the complainant in this case).
5. ' Mr. I.A. Hashmi, learned counsel for complainant, has contended that accused Shera Masih was granted bail by this Court and the remaining accused sought bail on the basis of that order. It is argued that the accused were armed with pistols and they were ascribed specific role of firing upon complainant party. Their brother Ilyas who is main accused has absconded. The accused were not entitled for the discretionary relief of bail in murder case. The accused after their release on bail have taken law into their own hands and have misused the concession of bail extended to them by the Court. It is stated that Nasir Masih the younger brother of complainant was attacked by Shera, Yakoob, Munir son of Shera, Ishaque son of Shera on 7-6-2001 and they caused injuries to him. Such information was given to police. The police after keeping entry in Roznamcha referred the accused to Medical Officer, Abbasi Shaheed Hospital for treatment and report. The copy of letter has been produced on record. Medical Certificate issued by the doctor shows that injured Nasir had sustained five injuries. The police did not take any action and the complainant moved an application before D.S.P., Central, Karachi but the police did not take any step.
6. ' It is stated by the learned counsel that complainant party in such state-of-affairs were neither able to pursue their case nor would they be in a position to appear in Court and depose against the accused. The main accused Ilyas and Abbas are still at large and are fugitive from law. They have been putting constant pressure upon the complainant party and stating that they would cause, murder of complainant. In support of alive incident six neighbourers namely Naveed, Bashir Masih, Ilyas and others have filed their affidavits. Reliance is placed upon the case of Tanveer Ahmed v. Muhammad Saqib and 2 others PLD 1994 SC 88, Shahzaman and 2 others v. The State and another PLD 1994 SC 65, Khalid Mahmood v. Abdul Qadir Shah and State 1994 PCr.LJ 1784 and Malik Anjum Farooq Piracha v. Waqar Zafar Chauhan alias Wikki and 2 others 1994 SCM R 1230.
7. ' Mr. Ghulam Mustafa Memon learned counsel appearing for respondents argued that no time and place is mentioned in the affidavits by the aforesaid persons, therefore, -no action can be taken against the respondents. The learned counsel has pointed out certain contradictions in the application made before D.S.P. Aid the Medical Certificate. It is submitted that some of the witnesses have been examined in the Court and the complainant party wants to keep all the members of family in jail. The accused have been granted bail by the competent Court, therefore, the concession of bail cannot be withdrawn. He has drawn my attention to the affidavits filed in rebuttal. It is stated that no action can be taken as the alleged injuries were constituting non- cognizable offence.
8. ' Mr. Habib-ur-Rashid learned counsel appearing for State has conceded the prayer made by the complainant and stated that since the respondents have misused the concession of bail extended to them in a murder case, therefore, they are not entitled to enjoy the same in such circumstances.
9. ' The perusal of record shows that accused were nominated in the F.I.R. They were armed with fire- arms which were used by them. Main accused Ilyas who is son of respondent Shera is still fugitive from law alongwith accused Abbas. The allegation that the present respondents alongwith absconding accused have been putting pressure upon the complainant party to withdraw their case is not without force.
10. ' The plea of complainant gets support from the injures sustained by injured Nasir. The medical certificate is produced on record so also the letter by the police and the application moved by complainant before D.S.P., Central, Karachi. No doubt the respondents are members of one family and their fires went ineffective but still the question of vicarious liability, common object and the forming an unlawful assembly are yet to be taken into consideration when the evidence is adduced by the parties. Nevertheless, they were released on bail but they have deliberately abused that concession by taking law into their hands and they have started terrifying the complainant party which cannot be taken lightly by the Courts. For that, all the respondents are trying to deteriorate the situation and the case of some of the accused cannot be distinguished from others. The complainant has succeeded to establish that the respondents had abused the concession of bail extended to them and produced sufficient material on record in this regard. The grant of bail in non-bailable offences is a concession which implies the condition that after release on bail the accused will not misuse the concession so extended. The person so released, if found violent to take revenge from the complainant, the prosecution witnesses or the police, his bail is liable to be cancelled.
11. ' The reliance in this regard can be had to a case of Tanveer Ahmed v. Muhammad Saqib and two others PLD 1994 SC 88. Para. 4 in which their lordships have held as under:-- "The learned counsel has also pointed out that after respondent No,1 was released on bail, he committed murder of petitioner's father as he had refused to accede to his demand for compromise of the case. In this regard the learned counsel has filed F.I.R. Lodged by the petitioner against respondent No,1, dated 24-8-1993. Be that as it may, the fact remains that the petitioner has succeeded in establishing that respondent No,1 has abused concession of to him. It is well- settled principle of law that granting of bail in a non-bailable offence is a concession allowed to an accused which implies that during his term of release on bail he would not misuse this concession or revenge against the complainant, prosecution witnesses or the police, his bail is liable to be cancelled. But before cancelling bail on such grounds there should be clear proof on record of the allegation of misuse of the privilege of bail. In the present case sufficient evidence to this effect has been brought on record which justifies cancellation of bail."
12. ' The prayer of complainant for cancellation of bail is conceded by the learned counsel appearing for State.
13. The parties are close neighbours. It appears that after the release on bail, the accused in collaboration with absconding accused have started causing terror for the complainant party and the papers show that the situation has become very tense, which may invite some other misfortune. Sufficient material is produced which indicates that situation at the site has deteriorated after the release of respondents on bail.
14. ' During the arguments, on my query, the respondents are not prepared to produce main accused Ilyas in the Court on the ground that his whereabouts are not known. Although, his father Shera and his brothers are on bail.
15. In such peculiar facts and circumstances of the instant case, the I bail of respondents Nos.1 to 4 was cancelled by a short order, dated 17-10-20001. These are the detailed reasons for the same.