1. ' This application under section 497(5), Cr.P.C. Impugns the order dated 3-9-1997 passed by the IIIrd Additional Sessions, Judge, Nawabshah whereby bail was granted to Abdul Majid, respondent No,1 and also seeks to recall the order dated 305-1997 whereby bail was granted to Khakoo alias Abdul Khaliq by this Court in Criminal Bail Application No,257 of 1997.
2. ' The brief facts of the matter are that the applicant/complainant lodged F.I.R. No,5 of 1997 on 9-3- 1997 at Police Station Bandhi, District Nawabshah to the effect that eight years ago one Ayub Bullar was murdered and a case was registered against Majid Dehri and others. The son of the complainant Ghulam Mustafa was on friendly terms with the party of Ayub Bullar due to which Majid Dehri party were annoyed with him and asked him to discontinue his friendship with Ayub Bullar party as a result of which there was some altercation between Ghulam Mustafa and Majid Dehri party during which Ghulam Mustafa was beaten by the latter. It has been further alleged in the F.I.R. That about ten days prior to the incident accused Abdul Majid Dehri issued threats to Ghulam Mustafa saying that as he had not discontinued his friendship with Guloo Bullar they would see him. On 9-3-1997 the complainant alongwith her son Ghulam Mustafa were going on their motorcycle towards Bandhi Town for their work and when at about 16-00 hours they reached Chaudhary Mukhtiar Village Road, Deh 63, Nasrat, another motorcycle approached them from the opposite side on which Majid Dehri and his nephew Khakoo alias Abdul Khaliq Dehri were seated.
3. Both the accused/respondents had country-made pistols in their hands and gave a cry (Haakkal) to the complainant and her son saying that as the latter had not discontinued his friendship with Guloo Bullar he should be prepared for murder upon which Majid Dehri fired upon Ghulam Mustafa which hit him on his right side and he raising a cry, fell down. Thereafter the complainant raised cries when P.Ws. Muhammad Hanif and Ashraf came from Bandhi side and also witnessed the incident. The accused warned them not to approach the scene otherwise they would also not be spared and then the accused while firing went away on their motorcycle towards Bandhi Town.
4. Thereafter the complainant and both P.Ws. Saw that Ghulam Mustafa was dead. Leaving the P.Ws.
5. On the dead body the complainant went to the police station and lodged the F.I.R.
6. ' After obtaining bail from the learned trial Court as well as this Court as mentioned above both the accused respondents Nos.1 and 2 are now issuing threats of dire consequences to the complainant as well as the P.Ws. To the effect that if they gave evidence and deposed against them they would not be spared. Hence this application for cancellation of their bail.
7. ' Based on the above facts and circumstances learned counsel for the applicant submits firstly that the impugned order has incorrectly recorded that no independent eye-witnesses were available on the scene of the crime whereas as per the F.I.R. P.W:. Muhammad Hanif and Ashraf were present who had witnessed the crime. Secondly learned counsel has submitted that the learned trial Court has wrongly observed that no recovery had been made from the scene of the crime whereas an empty was so recovered.
8. ' It is submitted further that the learned trial Court's observation regarding enmity between the parties was not relevant at the bail granting stage and so also regarding the absence of independent witnesses it is stressed that the learned trial Court failed to appreciate that the place where the crime was committed was totally uninhabited and hence there could not be any question of any independent witness. Finally learned counsel has stated that no statement has been made in the impugned order that the accused could not be prima facie linked with the crime and consequently a further inquiry was necessitated. Thus, according to learned counsel, the learned trial Court had not applied its judicial mind to the facts of the matter and the material available on the record and had consequently fallen into error while granting bail to accused Abdul Majid. Further learned counsel says that the objection taken the counter-affidavit on behalf of the accused that since the trial had commenced the present 1 application is misconceived is incorrect since this is not a mandatory provision of law. In support of his contentions learned counsel has relied upon Muhammad Sharif v. Shafqat Hussain 1999 SCMR 338, Muhammad Wasi Qureshi v.
9. Abdul Majeed 1993 MLD 212, Muhammad Akbar v. Shahzaman PLD 1993 Kar.55, Imran v. The State 1998 PCr.LJ 1022, Ibrahim and others v. The State 1982 SCMR 434, Muhammad Afzal v. Ghulam Haider 1984 PCr.LJ 590, Manzoor Hussain v. Talib Hussain 1991 SCMR 1894, Shoib Mahmood Butt v.
10. Iftikhar ul Haq 1996 SCMR 1845, Muhammad Usman Mahar v. The State 1997 PCr.LJ 1009, Rahim Buksh v. The State 1997 PCr.LJ 1450, Ali Nawaz v. Ali Muhammad 1997 PCr.LJ 1897, Mst. Badari Jamila v. Khushdil Khan 1998 PCr.LJ 1652, Abdul Hayee v. The State 1996 SCMR 555, Muhammad Mansha v.
11. The State PLD 1996 SC 229, Anwar Hussain Shah v. Muhammad Mansha 1996 PCr.LJ 839, Haji Ghullu Khan v. Gul Draz Khan 1995 PCr.LJ 1765.
12. ' On the other hand learned counsel for the respondent has raised a preliminary objection to the maintainability of this application on the basis that the challan has been submitted against the accused in the learned trial Court, the charge has been framed and the trial has commenced therefore bail should not be cancelled. In this regard learned counsel has relied upon Muhammad v. The State PLD 1996 Karachi 483, Khan Dad v. Khudai Mir 1988 SCMR 1919, State v. Rashid Ahmed- 1988 SCMR 1129, Mst. Irshad Begum v. Muhammad Afzal 1985 SCMR 1691, Muhammad Ismail v, Muhammad Rafique PLD 1989 SC 585, Muhammad Sadiq v. The State 1980 SCMR 203, Mian Dad v.
13. The State 1992 SCMR 1418, Khushi Muhammad v. Rab Nawaz 1996 SCMR 172, Sharif Khan v. Seenar Gul 1990 PCr.LJ 142.
14. ' On the merits of the case learned counsel has submitted that, so far, the documents placed on the record and the facts of the matter do not adequately establish that prima facie the respondents/ accused were connected to the crime in question viz. The murder of the complainant's son. In this regard learned counsel submits that the F.I.R. Was belated having been lodged on 9-3-1997 at 16-45 p.m. Whereas the incident took place as per the F.I.R. On the same day at 16-00 hours. Secondly learned counsel submits that as per the post-mortem report the deceased died after half an hour of receiving the injury whereas in the F.I.R. It was reported that the deceased died on the spot. Similarly there is a contradiction between the Mashirnama and the post-mortem report the former of which records the distance from which the gunshot was fired as six feet whereas the latter shows that there was blackening of the skin around the entry point of the bullet which shows that the range was closer viz. One to two feet. In this regard learned counsel has relied upon Mir Muhammad v. The State 1995 SCMR 610, Syed Abdul I3aqi Shah v. The State 1997 SCMR 32, Ghulam Nabi v. The State 1998 PCr.LJ 968, Muhammad Rahim v. The State 1996 PCr.LJ 1165.
15. ' Learned counsel's next argument is that as per the F.I.R. P.Ws. Muhammad Hanif and Muhammad Ashraf, who were the complainant's brother and nephew respectively came running to the scene of the crime upon her cries and thus did not witness the actual firing. However, in their statements they say that they had witnessed the crime itself. Learned counsel has further argued that the complainant went to lodge the F.I.R. Leaving behind the dead body of her son when her nephew and brother were present and so also the fact that she walked to the police station which is quite unnatural. Finally learned counsel has submitted that in the Mashirnama of recovery only the motorcycle was recovered and there was an observation that the .Marks on the place of recovery were same as those of the recovered motorcycle which is again quite illogical. In this connection he has relied upon Nazar Muhammad v. The State 1977 PCr.LJ 277 and Qazi Ashiq Hussain v. The State 1996 PCr.LJ 205.
16. ' In rebuttal Mr. Abdul Hai Memon for the applicant has argued that the impugned bail order touches upon the merits of the case and hence is fit to be set aside. As regards the enmity between the parties it is submitted that the learned trial Court has not considered that there was enmity between the P.Ws. And the accused. In this regard learned counsel has submitted that an interested witness is as good as any other unless enmity has been established which can only be done at the trial stage. Similarly learned counsel has submitted that the conflict regarding time of death cannot be considered at the bail granting stage as well as the alleged discrepancy between the ocular and medical evidence. In this connection learned counsel has relied upon Muhammad Sharif v. Shafqat Hussain 1999 SCMR 338, Imran v. The State 1998 PCr.LJ 1022, Abdul Hayee v. The State 1996 SCMR 555.
17. ' Learned A.A.-G. Has supported the impugned order. I have heard both the learned counsel and my conclusions are as follows: ' It would be seen that in matters concerning bail the pristine principle to be followed by Courts is that the exercise to be carried out by the Court is a preliminary one and is restricted to a tentative sifting of the evidence on the record as opposed to an elaborate sifting of the same. In this regard reference can be made to Khalid Javed Gillan v. The State PLD 1978 SC 256 and Saeed Akbar v. Gul Akbar 1996 SCMR 931. Such principle as laid down by the Honourable Supreme Court is a salutary one which would leave the detailed appreciation of evidence to the trial Court so as not to embarrass the trial of the accused at the bail granting stage.
18. ' Secondly in cases where the prescribed punishment is ten years, life imprisonment or death, the Court has to be very careful while granting bail to the accused. In such cases since bail is not a matter of right, the Court has to give a definite conclusion that the case is one of further inquiry on the basis of which prima facie the accused cannot be connected to the crime. Thirdly it is also well established that the fact of the trial of the accused having commenced is no ground for disregarding applications for cancellation of bail in appropriate cases.
19. ' Applying the above principles to the case at hand it would be seen that the alleged incident is one of broad daylight murder which was witnessed by at least two independent eye-witnesses. In the F.I.R. Although it is stated that these two eyewitnesses Muhammad Hanif and Ashraf came on a motorcycle after the fatal shot had been fired by the accused, however, they did see the incident and the accused also told them not to come near upon pain of death. The incident itself took place on a road leading towards Bandhi Town and there is no evidence that the area was populated.
20. Consequently in my view although the eye-witnesses may be related to the complainant, their evidence is as good as any in the circumstances of the case when no independent eye-witnesses were available.
21. ' Secondly it would be seen that as regards other factual aspects of the case the F.I.R. Was lodged at 16-45 hours whereas the incident took place at 16-00 hours and also there appears to be some discrepancies between the post-mortem report and the ocular evidence viz. That in the F.I.R. It has been reported that the deceased died on the spot whereas the post-mortem report records that he died after half an hour of receiving the injury. And so also the Mashirnama shows the distance from which the fatal shot was fired at 6 feet whereas the post-mortem report shows that there was blackening of the skin around the entry point of the bullet which would tend to establish that the range was closer viz. Between 1 to 2 feet. So also it would be seen that no recovery of the crime weapon has been made from the applicant/accused and only one empty has been secured from the place of incidence whereas it has been alleged that co-accused Abdul Khaliq had also fired in the air in which case the corresponding empty should have been secured.
22. ' On the basis that the above factual circumstances and the documents on the record are contradictory the learned trial Court has come to the conclusion that the matter was one of further inquiry and accordingly admitted the accused Abdul Majid to bail as the parties were admittedly on inimical terms and hence the possibility of false implication could not be ruled out when there was only one solitary eyewitness.
23. ' In my opinion the learned trial Court has erred in sifting the evidence placed on the record since it has gone into the merits of the case. Whether or not there is a contradiction between the ocular and F medico-legal evidence, and whether or not the eye-witness to the alleged crime were reliable and whether or not there could be a possibility of false implication based on enmity between the parties are issues which should safely be left to the learned trial Codit to appreciate at the trial itself and not at the bail granting stage. In this regard reference can be made to Abdul Hai v. The State (supra) where the Honourable Supreme Court has held that the alleged conflict in the ocular account and the medico-legal evidence could be given due weight by the trial Court after recording evidence which could not be assessed in depth at the bail stage. In Shoib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845 the Honourable Supreme Court has explained the meaning of the word "further inquiry" viz. That this is a question which should have a nexus with the result of the case and satfie should show or tend to show that the accused is not guilty of the crime with which he is charged for which purpose a preliminary inquiry has to be undertaken whereby a tentative assessm ent of the material on the record is to be made to reach such conclusion. This exercise is entirely different as opposed to appreciation of the evidence which was the sole prerogative of the trial Court. In my view the accused Abdul Majid's case is not one requiring further inquiry as the facts and circumstances would tend to show that he can, prima facie be connected with the crime in question.
24. ' Regarding learned counsel for the respondents assertion that it is a well-settled principle of law that in matters of cancellation of bail where the trial has commenced or is about to commence the superior Courts would not interfere, suffice it to say that in such matters the Honourable Supreme Court has laid down that in appropriate cases bail can be cancelled and this would depend on the facts and circumstances of each case which would also control the grant of bail itself. In this regard reference can be made to Muhammad Sharif v. Shafqat Hussain, Muhammad Wasi Qureshi v. Abdul Majeed, Muhammad Akbar v. Shah Zaman, Muhammad Afzal v. Ghulam Haider, Ali Nawaz v. Ali Muhammad and others (supra).
25. ' As regards the cases cited at the bar by the learned counsel for the proposition that bail should not be cancelled when the trial commenced or is about to commence viz. Muhammad Ismail v.
26. Muhammad Rafique, Mst. Irshad Begum v. Muhammad Afzal, Muhammad Sadiq v. State and Mian Dad v. The State (supra). It may be observed that the Honourable Supreme Court in the aforecited cases had come to this conclusion upon the facts of each case and declined interference on the basis that any observation made by it may prejudice the accused at his trial. However, as held by the Honourable Supreme Court in the subsequent case of Khushi Muhammad v. Rubnawaz and 3 others (supra) if the application for cancellation of bail can be decided on grounds independent of the merits and without even touching the same the Court can pass an order as the same would not embarrass the trial. Even otherwise it is a settled principle that the observations of the superior Courts while granting or canceling bail are never to be considered by the trial Court.
27. ' In the light of the foregoing facts and circumstances I have come to the conclusion that this a fit case whereby the accused Abdul Majid's bail should be cancelled. . His bail bond is so also cancelled and he shall be arrested and confined to judicial custody as soon as possible. However to be fair to the accused, as the trial has already started, the learned trial Court shall dispose of the matter within three months of the date when a certified copy of this order is received by it.
28. ' As regards the case of respondent No,2 Khaku, this is on an entirely different footing as he has only been alleged to have fired in the air and could be guilty of complicity in the murder. However the fact regarding common intention in my view can only be established at the trial and hence I have no reason to disturb the order dated 30th May, 1997, in Criminal Bail Application No,257 of 1997 whereby bail was granted to co-accused Khaku by this Court.