2024 Y L R 2187
[Balochistan (Sibi Bench)]
Before Shaukat Ali Rakhshani, J
MUHAMMAD MURAD---Applicant
Versus
JAMEEL AHMED and 2 others ---Respondents
Criminal Cancellation of Bail Application No.(s)42 of 2023, decided on 5th October,
2023.
Criminal Procedure Code (V of 1898) ---
----S. 497(5) ---Penal Code (XLV of 1860), Ss. 302(b), 147, 148 & 149---Qatl -i-amd,
rioting, rioting armed with deadly weapon, unlawful assembly---Petition for cancellation
of bail ---Accused -respondents were charged for committing murder of the father of the
complainant ---As per record, the grounds which prevailed upon the Trial Court to grant
bail were that the accused -respondents were shifted to judicial custody and were no more
required by the police and that during the period of remand nothing incriminating was recovered from their possession---Most crucial point which persuaded the Trial Court to extend the concession of bail was that the accused -respondents were not present at the
place of incident, which was evident from the CDR reports showing that they made entry at two FC check -posts, squaring their case within the ambit of further inquiry---Held, that
authenticity of the CDR and relevance thereof was yet to be proved by the accused-
respondents, which at present stage was not a conclusive proof of plea of alibi ---Record
reflected that the deponents, who swore affidavits with regard to plea of alibi, were not produced before the Court, thus in their absence and obviously unless they were subjected to a query by the Court no definite opinion could be formed thereof ---As far as the entries
at the check -post were concerned, unless the Officials were produced by the defence and
cross -examined by the prosecution, no explicit reliance could be placed upon such
documents as the same were yet to be proved during the trial ---Absence of recovery of the
crime weapon alone did not entitle the accused for the concession of bail, unless the case was one of further inquiry--- In the present case, one of the accused -respondents had been
specifically nominated and assigned the role of firing upon the deceased, whose unnatural death caused by firearm had been confirmed by Medico- Legal Certificate, and the
commission of murder from close proximity with no question of mis -identity had also
strengthened the case of prosecution---Thus, there were reasonable grounds to believe that said respondent -accused was prima facie involved in an offence punishable with death or
life incarceration, which debarred him from the concession of bail as contemplated under clause (1) of S.497, of Cr.P.C.---Role of other accused -respondent was distinguishable as
he was not attributed any overt act, except being present at the crime scene with Kalashnikov and alleged to have advanced threats of dire consequences ---Role of said
accused -respondent squared within the ambit of clause (2) of S.497, Cr.P.C., entitling him
for concession of bail, who had rightly been admitted to bail by the Trial Court, which needed not to be meddled with---Applicant had made out a case for cancellation of bail against accused -respondent No.1 but not against accused -respondent No.2--- Bail granted to
accused -respondent No.1 by the Trial Court was cancelled, whereas the application for
cancellation of bail to the extent of accused -respondent No.2 was dismissed, who shall
continue to remain on bail.
Sardar Munir Ahmed Dogar v. The State PLD 2004 SC 822; Mudassar Altaf and
another v. The State 2010 SCMR 1861; Gul Ahmed v. The State 1997 SCMR 27; Amir Faraz v. The State 2023 SCMR 308; Muhammad Amjad Shehzad v. Muhammad Akhtar Shehzad 2022 SCMR 1299; Aurangzeb v. The Sate 2022 SCMR 1229; Jahanzeb v. The State 2021 SCMR 63 and Aqal Khan v. The State 2020 SCMR 1431 rel.
Tariq Mehmood Butt for Applicant.
Muhammad Ilyas Khosa for Respondents Nos. 1 and 2.
Fazal -ur-Rehman, State Counsel.
Date of hearing: 25th September, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J.---Applicant, Muhammad Murad has brought the
captioned application for cancellation of bail of respondents Nos.1 and 2 for murdering Mir
Nabi Bakhsh Khan (father of complainant Muhammad Murad) in a case bearing FIR No.01/2023 dated 11.01.2023 registered with Police Station Manjhoo Shori, District Naseerabad under the offences punishable under sections 302, 147, 148 and 149 of the Pakistan Penal Code, 1860 ("P.P.C.").
2. Condensed but relevant facts of the case are that on 11.01.2023 on the written
complaint of complainant Muhammad Murad, the FIR ibid was lodged with the averments that on the said date on the invitation of his relative Muhammad Ashraf Gola for dinner he along with his father Mir Nabi Bakhsh Khan, uncle Khawand Bakhsh and cousin Muhammad Ilyas went there and were sitting in his guest room, while at about 6:00 pm, respondent No.1 Jameel Ahmed armed with G -3 rifle, Muhammad Saleem with TT pistol
came over there and made a Lalkara that they will not leave Mir Nabi Bakhsh Khan alias Naboo, whilst at a some distance three more persons namely Dil Murad respondent No.2, Manzoor Ahmed alias Mano and one unknown person duly armed with kalashnikoves threatened them of dire consequences in case of resistance and that Jameel Ahmed respondent No.1 and Muhammad Saleem started firing, resultantly his father succumbed
on the spot. The motive was alleged to be exchange of some harsh words between them before the occurrence.
3. After usual investigation, respondents Nos.1 and 2 were booked to face the trial and
after commencement of trial, respondents filed an application for grant of bail before learned Additional Sessions Judge, Nasirabad at Dera Murad Jamali ("Trial Court"), who allowed the bail application vide order dated 14.03.2023 ("impugned order"), which bail granting order has been assailed before this Court, seeking its cancellation.
4. Mr. Tariq Mehmood Butt, learned counsel for the applicant -complainant inter alia
contended that the memo. of entry register of Frontier Corps ("FC") check- post and CDR
have been maneuvered in order to establish the plea of alibi of the respondents, but the Trial Court has wrongly granted bail to the accused- respondents considering the plea of alibi at the
bail stage, which is not permissible. He maintained that the eye- witnesses have categorically
nominated and have attributed specific role to respondent No.1 Jameel Ahmed and respondent No.2 Dil Murad, but the Trial Court without considering the material on record has granted bail to the accused -respondents contrary to the principles of bail. He further
urged that the accused- respondents are tampering with the evidence and threatening the eye -
witnesses, which disentitles them for grant of bail.
Mr. Fazal -ur-Rehman, learned State Counsel supported the arguments advanced by
learned counsel for the complainant -applicant and stated that the bail granted to the accused-
respondents merits to be cancelled as overwhelming evidence is available on record against the accused respondents as the eye- witnesses have specifically nominated them with the
specific roles, which ocular account is confirmed by the medical evidence.
Mr. Muhammad Ilyas Khosa, learned counsel for respondents Nos.1 and 2
vehemently opposed the application for cancellation of bail and maintained that the respondents have maliciously been involved in the instant case due to ulterior motives. He submitted that respondents were not present at the crime scene at the relevant time, which is evident from the entry register maintained by the FC and affidavits sworn by Balach, Pir Din, Shahzaib and Shah Dina. He also argued that the accused -respondents have neither misused
the concession of the bail nor have attempted to temper with the evidence, thus requested for dismissal of the application.
5. Heard. Record perused.
6. There is no other cavil to the proposition that the grounds for grant of bail are
distinctive to the grounds for cancellation of bail. For cancellation of bail strong and
exceptional grounds are required. The rationale behind said dictum has been envisaged in the case of "Tariq Bashir and others v. The State" (PLD 1995 SC 34). The relevant para 9 of the aforesaid judgment reads as under;
"9. The consideration for the grant of bail and for cancellation of the same are altogether different. Once the bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation thereof. To deprive a person on post arrest bail of the liberty is a most serious step to be taken. There is no legal compulsion to cancel the bail of the accused who allegedly has committed crime punishable with death, imprisonment for life or imprisonment of ten years."
Usually the apex Court as well as the Hon'ble High Courts have always been found to
be hesitant to cancel the bail granted. In the case of "Abdul Majid Afridi v. The State and another" (2022 SCMR 676), the Supreme Court observed that while cancelling bail of an accused the following grounds must be available, otherwise such application for cancellation of bail shall stand unsuccessful, the conditions whereof are as infra;
i) if bail granting order is patently illegal and factually contrary to the record, causing miscarriage of justice,
ii) accused has misused the bail,
iii) the accused has attempted to temper with the prosecution evidence,
iv) there is likelihood of his abscondence.
v) misused his bail by repeating the same offence.
vi) when some fresh facts and material comes on record, establishing the guilt of the accused.
7. In the instant case, accused -respondents Jameel Ahmed and Dil Murad have been
nominated in a promptly lodged FIR, attributing specific roles. Respondent No.1 Jameel Ahmed has directly been ascribed the role of firing upon deceased Mir Nabi Bakhsh Khan alias Naboo with G -3 rifle, whereas respondent No.2 Dil Murad has been shown to be
present on the crime scene with kalashnikove, who statedly advanced threats of dire consequences. The Medico Legal Certificate ("MLC") confirms the death of deceased caused by firearms injuries. The grounds which prevailed upon the Trial Court to grant bail were that the accused -respondents were shifted to judicial custody and were no more required by
the police and that during the period of remand nothing incriminating was recovered from the possession of the accused -respondents. The most crucial point which persuaded the Trial
Court to extend the concession of bail was that the accused -respondents were not present at
the place of incident, evident from the CDR reports showing that they made entry at two FC check -posts, squaring their case within in the ambit of further inquiry.
8. The apex Court in the case of "Omar Daraz v. The State" (2004 SCMR 1019) did not
accept the plea of alibi at the bail stage and declined the bail. Similarly, in the case of "Muhammad Afzal v. The State" (2012 SCMR 707) the Supreme Court also did not accept the plea of alibi, holding that the High Court had rightly observed that veracity whereof would be determined at the trial, thus the bail was refused. Also SEE; ["Waqar -ul-Haq v. The
State" (1985 SCMR 974) and "Bahadur v. Muhammad Latif" (1987 SCMR 788)].
9. Besides above, the authenticity of the CDR and relevance thereof is yet to be proved
by the accused respondents, which at this stage is not a conclusive proof of plea of alibi. Record reflects that the deponents, who sworn affidavits namely Balach, Pir Din, Shahzaib and Shah Dina with regard to plea of alibi were not produced before the court, thus in their absence and obviously unless they are subjected to a query by the court no definite opinion can be formed thereof. As far as the entries at the check -post are concerned, unless the
officials are produced by the defence and cross -examined by the prosecution, no explicit
reliance can be placed upon such documents as the same are yet to be proved during the trial.
Absence of recovery of the crime weapon alone does not entitle the applicant for the
concession of bail, unless the case is one of further inquiry. The apex Court in the case of
"Sardar Munir Ahmed Dogar v. The State" (PLD 2004 SC 822) held that non- recovery of the
crime weapon has no significance. Even otherwise, each case has its own merits, therefore, such recovery adds but does not subtracts or diminishes the prosecution evidence.
10. Above all, the applicant has not been discharged under section 169 of the Criminal
Procedure Code, 1898 ("Cr.P.C") and placed in column No.2 of the challan by the I.O, which shows that he himself was not sure and convinced about the plea of alibi. So be it, the Trial Court also may not concur with the police report as the opinion of the police is even otherwise not ipse dixit binding upon the Trial Court and such opinion cannot debar the Trial Court for evaluating the evidence on its own. SEE; ["Mudassar Altaf and another v. The State" (2010 SCMR 1861) and "Gul Ahmed v. The State" (1997 SCMR 27)].
11. Admittedly, there is no hard and fast rule that bail should not be cancelled merely for
the reason that the trial has commenced or is likely to be commenced because every case is to be examined in view of its own facts and peculiar circumstances. The moot question, while determining an application for cancellation of bail, the court has to see that as to whether a person is entitled for the grant of bail or otherwise and if a case for cancellation of bail is made out then such bail granting order shall be overturned on the touchstone enumerated by the apex Court and this Court mentioned in para supra. Reference can be made to the cases "Amir Faraz v. The State" (2023 SCMR 308), "Muhammad Amjad Shehzad v. Muhammad Akhtar Shehzad" (2022 SCMR 1299) and "Aurangzeb v. The Sate" (2022 SCMR 1229).
12. In the instant case, accused -respondent No.1 Jameel Ahmed has been specifically
nominated and assigned the role of firing upon the deceased, whereby he succumbed, whose unnatural death caused by firearm has been confirmed by MLC and the commission of murder at a close proximity with no question of misidentity has also strengthened the case of
prosecution. In view of the above, there are reasonable grounds to believe that accused-
respondent No.1 Jameel Ahmed is prima facie involved in an offence punishable to death and
life incarceration, which debars him from the concession of bail as contemplated under clause (1) of section 497 of Cr.P.C.
The role of accused -respondent No.2 Dil Murad is distinguishable as he was not
attributed any overt act, except being present at the crime with kalashnikove and alleged to have advanced threats of dire consequences. The role of accused -respondent No.2 Dil Murad
squares within the ambit of clause (2) of section 497 of Cr.P.C., entitling him for concession of bail, who has rightly been admitted to bail by the Trial Court, which needs not to be meddled with. The apex Court, in case of "Jahanzeb v. The State" (2021 SCMR 63) admitted an accused to bail, where no overt act was ascribed to him, except the allegation of ineffective firing. In the instant case, the vicarious liability is yet to be determined, therefore, case of accusedrespondent No.2 Dil Murad falls within the purview of further enquiry unlike the case of accused -respondent No.1 Jameel Ahmed. SEE; ["Aqal Khan v. The State" (2020
SCMR 1431)].
13. In wake of the above, I believe that the Trial Court has failed to consider such aspect
of the matter and had granted bail to accused -respondent No.1 Jameel Ahmed contrary to the
record and facts, making the bail granting order to his extent erroneous and arbitrary, causing miscarriage of justice, which cannot be allowed to hold field.
As far as the grounds of tempering with the evidence are concerned, the applicant has
brought nothing on record to establish such fact.
14. For what has been discussed hereinabove, the applicant has made out a case for
cancelation of bail against accused -respondent No.1 Jameel Ahmed and not against accused-
respondent No.2 Dil Murad.
15. Corollary, the instant application is partly allowed and consequent thereto, bail
granted to accused -respondent No.1 Jameel Ahmed vide impugned order dated 14.03.2023
by the Trial Court is set -aside and the bail granted to him is cancelled, whereas cancellation
of bail to the extent of accused respondent No.2 Dil Murad fails, who shall continue to remain on bail.
However, the applicant shall be at liberty to seek cancellation of bail granted to
accused -respondent No.2 Dil Murad, in case he violates the terms of the bail enumerated in
para supra.
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