2025 Y L R 83
[Balochistan]
Before Shaukat Ali Rakhshani, J
GHULAM SARWAR--- Applicant
Versus
The STATE and another ---Respondents
Criminal Bail Cancellation Application No. 85 of 2024, decided on 30th August, 2024.
Criminal Procedure Code (V of 1898) ---
----S. 497(5) ---Penal Code (XLV of 1860), Ss. 302, 109 & 34--- Qatl-i-amd, abetment,
common intention---Application for cancellation of bail, dismissed of ---Accused was
charged for committing murder of the brother of complainant ---Trial Court had granted bail
to accused, while considering the fact that the deceased received several fire shots due to
firing of accused and co -accused, however, it was not known as to who caused the fatal
injury to the deceased and that admittedly the deceased was not fired at on his vital parts, making the case of accused one of further inquiry--- Trial Court besides the above, while
keeping in view the enmity and registration of several FIRs against each other, also held that false implication in such circumstances could not be ruled out, more particularly, in view of
the plea of alibi, which was supported by the evidence produced by the accused so mentioned in the bail granting order ---Other reason of bail was that since vide order dated 29.08.2023
nominated two accused persons were granted bail, thus on the basis of rule of consistency, accused was also entitled for bail ---Bail granting order neither suffered from any factual
error nor the grounds for cancellation of bail were available, warranting cancellation of bail --
-Application for cancellation of bail being devoid of merits was dismissed, in circumstances.
Tariq Bashir and others v. The State PLD 1995 SC 34 and Abdul Majid Afridi v. The
State and another 2022 SCMR 676 rel.
Muhammad Ewaz Zehri and Asia Naz for Applicant.
Wajahat Khan Ghaznavi, State Counsel.
Barrister Amir Muhammad Lehri and Riaz Ahmed Soomro for Respondent No. 2.
Date of hearing: 23rd August, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Applicant has brought the captioned
application for cancellation of bail granted to Shair Ali (respondent No.2) for committing murder of Sami Ullah (deceased) brother of complainant Ghulam Sarwar in a case bearing FIR No.24 of 2023 dated 06.05.2023 registered with Levies Station Dasht, Mastung under the offences, punishable under sections 302, 109 and 34 of the Pakistan Penal Code, 1860 ("P.P.C.").
2. Facts of the case, succinctly required for determination of the application in hand are
that on 06.05.2023 on the written application of complainant Ghulam Sarwar FIR ibid was lodged, averring therein that he along with his brother Sami Ullah (deceased), and nephew Noor Ullah went to their orchard, situated at Matora Dasht, where at about 6:30 pm, Shair Ali along with Munir Ahmed, Changaiz, Hamayon and Nasir, having fire arms came, and that Sher Ali made firing with kalashnikov upon his brother deceased Sami Ullah, who sustained firearm injuries on his left leg, whereas accused Changaiz also made firing upon deceased Sami Ullah due to which he also sustained injuries on his right leg, and succumbed on the spot due to excessive bleeding, however, the accused persons made their escape good from the scene.
3. After usual investigation, Shair Ali was booked to face trial. During trial, respondent
No.2 filed an application for grant of bail before learned Sessions Judge, Mastung ("Trial
Court"), which was allowed vide order dated 16.11.2023 ("impugned order"), hence, this application for cancellation of bail.
4. Learned counsel for the applicant -complainant inter alia contended the Trial Court
has wrongly granted bail to accused- respondent No.2, while considering the defence plea at
the bail stage, which is not permissible. Added further that the eye- witnesses have
categorically nominated and have attributed specific role to accused Shair Ali, but the Trial Court without considering the material on record and evidence has granted bail to accused-respondent No.2 contrary to the principles of bail, thus requested for cancellation of bail granted to respondent No.2.
Adversely, learned state counsel strenuously opposed the contentions so put forth by
learned counsel for the applicant -compliant and urged that the impugned order of the Trial
Court does not suffer from any infirmity or misreading of evidence, thus requested for dismissal of the application.
On the other hand, learned counsel for respondent No.2 vehemently opposed the
application for cancellation of bail and maintained that respondent No.2 has maliciously been involved in the instant case due to ulterior motives and urged that respondent No.2 was not present at the crime scene at the relevant time, which fact is evident from the CDR record, report of Police Station Killa Saifullah, and affidavits sworn by Ali Gul and Tariq Bugti.
Maintained further that the respondent No.2 has not misused or violated the terms of bail,
warranting cancellation of bail, thus requested for dismissal of the application.
5. Heard. Record vetted. There is no other cavil to the proposition that the grounds for
grant of bail are distinctive to that of 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 excerpt of
para No.9 of Tariq Bashir's case supra is facsimile as infra;
"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 High Courts have always been found to be
reluctant 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, following grounds must be available, otherwise, such application for cancellation of bail shall stand unsuccessful. The conditions laid down 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.
6. The Trial Court has granted bail to Shair Ali, while considering the fact that the
deceased received several fire shots due to firing of Shair Ali and co -accused Changaiz,
however, it is not known as to who caused the fatal injury to the deceased and that
admittedly the deceased was not fired at on his vital parts, making the case of Shair Ali one
of further inquiry. The Trial Court besides above, while keeping in view the enmity and
registration of several FIRs against each other, also held that false implication in such
circumstances could not be ruled out, more particularly, in view of the plea of alibi, which is supported by the evidence produced by the accused so mentioned in the bail granting order. The other reason of bail was that since vide order dated 29.08.2023 nominated accused persons namely Munir Ahmed and Muhammad Hamayoun were granted bail, thus on the
basis of rule of consistency, Shair Ali was also entitled for bail.
7. The impugned bail granting order dated 16.11.2023, neither suffers from any factual
error nor the grounds for cancellation of bail as laid down by the apex court in Afridi's case
supra are available, warranting cancellation of bail.
8. Corollary, the instant application for cancellation of bail of respondent No.2 being
devoid of merits is dismissed.
JK/77/Bal. Application dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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