1. ' This is an application under section 497(5), Cr.P.C. Whereby the applicant/State has sought cancellation of to the respondent by the learned Vth Additional Session Judge, Shikarpur vide order dated 12-10-2000.
2. ' The relevant facts of the case are that respondent Nazir Ahmed son of Mohammad Ibrahim Memon has been indicted in Crime No, 20 of 1999 of Police Station Garhi Yasin for offence under sections 302, 324, 109. 504 and 34. P.P.C. As per contents of the F.I.R. Lodged by one Mashoque Ali son of Muhammad Mithal Memon on 5-3-1999, respondent duly armed with double-barrel gun alongwith Pir Bux son of Shaman Memon with single-barrel gun, and Sadar son of Pir Bux empty- handed reached at the hotel of Hafiz Qamaruddin Solangi where the complainant, his brother Roshan. Nephew Riaz and cousin Hadi Bux were sitting together to take tea. Respondent Nazir abused Roshan and directly fired with his gun at him with the intention to kill, which hit him and he fell down raising cries. Thereafter, other accused Pir Bux also fired at Roshan with intention to kill but failed to hit him. On the cries of complainant party, the culprits ran away. Whereafter it Was found that Roshan had sustained fire-arm injuries on his right shoulder side through and through, he was bleeding and died.
3. ' After usual investigation on 5-5-1991 when challan was submitted before the trial Court all the accused, except respondent, were let off by police and their names were placed in column No, 2.
4. However, on an application dated 17-7-1999 moved by the learned counsel for the complainant, vide order dated 7-8-1999, passed by the Sessions Judge, Shikarpur, they were also joined as co- accused in the case.
5. ' Respondent was arrested on 29-4-1999. He moved bail application before the trial Court, being Cr.B.A.No, 13 of 2000, which was dismissed by the trial Court on 20-4-2000, for the following reasons:-- "It transpires that the accused Nazir Ahmed is nominated in the F.I.R. Who was armed with double- barrel gun and he fired shot from his gun upon Roshan which hit him and he then expired. The medical evidence supports the ocular version of prosecution and medical officer opined that the death of deceased occurred due to shock and haemorrhage caused by injuries on vital organs i,e, both lungs and heart caused by discharge from fire-arm. The F.I.R. Was lodged by the complainant at Police Station Ghari Yasin immediately within 30 minutes...
6. ' The offence with which the accused is charged viz. 302, P.P.C. Fall within the prohibitory clause of section 497(1), Cr.P.C. The crime weapon viz. One double-barrel licensed gun alongwith licence of accused is also secured by the police in this case on the pointation of accused from his house."
7. ' Thereafter, on 1-9-2000 respondent moved another bail application being Criminal Bail Application No, 177 of 2000 before the trial Court wherein he took fresh ground of alibi. This second bail application was allowed by the trial Court vide order dated 12-10-2000. Which has been challenged through this application.
8. ' Mr. Ali Azhar Tunio, learned Assistant Advocate-General seeking cancellation of bail of respondent contended that according to the prosecution case, respondent is the nominated accused in the F.1.R., which was promptly lodged at the police station. He was duly armed with double-barrel gun and specific role of causing fatal injury to deceased Roshan has been assigned to him. The incident resulting in the murder of Roshan is a daytime incident and number of eye-witnesses have seen the incident. Parties were already known to each other, hence there is no chance of misidentification and there is also no reason or motive for false implication of the respondent. All the witnesses in their 161 as well as 164, Cr.P.C. Statements have fully supported the prosecution case against the respondent and at no stage, either before the police or before the trial Court, till the dismissal of earlier bail application any plea of alibi was raised by the respondent. In such circumstances, first order of the trial Court dated 20-4-2000 refusing bail to the respondent was fully justified. Referring to the other order dated 12-10-2000 learned counsel contended that the plea of alibi raised in second bail application was not only legally not sustainable, as though available, it was not raised in the first bail application but it was also an afterthought and manipulated plea which was based on fabricated documents. To fortify the plea of non- maintainability learned Assistant Advocate-General relied upon Zubair's case reported as PLD 1986 "SC 173 and prayed for cancellation of bail of the respondent.
9. ' On the other hand Mr. Ali Murad Abro, learned Advocate for the respondent contended that the principles and considerations for grant of bail and cancellation of bail are different and, therefore, once the respondent has been allowed bail by the trial Court, unless some strong reasons are available such order should not be interfere . In this context, he placed reliance of the case of 1992 SCM R 1286. Learned counsel also contended that, as the application did not move any application for cancellation of bail before the trial Court which had concurrent jurisdiction for this purpose, 'therefore, this application is not maintainable. He however, did not dispute that this Court is empowered to cancel the by the trial Court, and the fact that the plea of alibi raised in the second bail application was available to the respondent when he filed his first bail application, but without any reason whatsoever such plea was not raised and, therefore, the dictum laid down in Zubair's case is a clear hurdle in the way of respondent.
10. ' I have carefully considered the arguments advanced by the learned counsel and perused the material available before me. On facts, as per prosecution story, the respondent is nominated accused in the crime. He was armed with double-barrel gun and had caused fatal injury to the deceased Roshan. F.I.R. Was promptly lodged at the police station within thirty minutes. The incident had occurred in daytime at 5-00 p.m. And was witnessed not only by the complainant but by many other persons, who in their 161, Cr.P.C. Statements have clearly implicated the respondent and supported the prosecution case. The trial Court, after taking into consideration all these aspects of this case had declined bail to the respondent vide order dated 20-4-2000 and no exception could be taken to such order. Irrespective of the merits of the plea Of alibi raised by the respondent in his second bail application, such plea was admittedly available to him at the time of filing of his first bail application, but was not raised. This aspect has been visualized and examined by the Honourable Supreme Court of Pakistan in the Zubair's case (supra). Following observations are relevant: "8. It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application.
11. ' Thus it is evident that second bail application moved by the respondent, which was based on sole plea of alibi, was not maintainable in law and liable to be dismissed on this short ground alone.
12. ' Reverting to the merits of the plea of alibi, it is significant to note that not only respondent did not raise such plea before the police during investigation or in his first bail application filed before the trial Court but even after dismissal of his first bail application on 20-4-2000 he kept silent for over four months, which creates doubts about the genuineness of such plea. Faced with this situation while dealing with the plea of alibi, raised for the first time after a lapse of more than one year and four months to the incident, the trial Court should have taken an extra cautious stance while considering the merits of such bail plea instead of accepting it as gospel truth, as in the instant case. It may be observed here that in such situations Courts shall not remain oblivious of the deteriorating moral values in the society, the malpractices rampant in the Government Departments and other Institutions, coupled with lack of any fool proof system of maintaining authentic record in most of the Government Departments/Agencies, specially in the rural areas, due to which possibility of manipulation of documents to justify a false plea cannot be ruled out.
13. ' In the case of Hafiz Ghulam Akbar v.. The State reported as 2001 PCr.L.J 1719 a Division Bench of this Court of which I was a member has examined the scope of the plea of alibi at bail stage and relying on several decisions of Honourable Supreme Court of Pakistan observed that material available with the prosecution showing full Involvement of the accused in the commission of crime cannot be readily brushed aside or overlooked on the plea of alibi based on some documents which have still to stand the test of scrutiny during the trial of the case as any attempt to assess the authenticity or otherwise of this plea will require deeper appreciation of evidence which is not permissible at bail stage.
14. There is no cavil to the legal principle propounded in the case of Miandad v. The State (1992 SCM R 1286) referred by the learned counsel for the respondent, but in the facts and circumstances of the instant case discussed above, it is evident that the trial Court committed patent illegality in accepting the plea of alibi raised by the respondent, thus this case is distinguishable and of no help to the respondent.
15. ' For the foregoing reasons, I am of the considered view that not only the plea of alibi raised for the first 'time by the respondent in the second bail application was not legally sustainable, but on facts also the trial Court committed gross illegality in accepting such plea which had still to stand the test of scrutiny during the trial of the case. As a result, this application is allowed and to the respondent Nazir Ahmed vide order dated 12-10-2000 is hereby cancelled. He is directed to immediately surrender himself before the trial Court. In case of failure, trial Court shall take action against the accused and his surety in accordance with law.
16. ' Before parting with this order it may be observed that nothing which has been discussed hereinabove would affect the merits of the case. When it proceeds before the trial Court.
17. Bail cancelled.