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Criminal Miscellaneous No. 1186‑B of 1986, decided on 30th July, 1986.

‑‑‑S. 497(5)‑‑Bail, cancellation of‑‑Accused named in First Information Report‑‑Active participation in commission of murder of deceased attributed to them‑‑Eye‑witnesses, mentioned in First Information Report, supporting allegations of murder against accused‑‑single Judge while granting bail to accused appearing to have been impressed by contention that names of accused were placed in column No.2 of challan which was factually not correct when bail granting order was passed‑‑Bail cancelled in circumstances.

Yusuf Ali Khan, Bar‑at‑Law for Petitioner.

Arshad Khan for the State.

Khuda Dad Berki for Respondents.

This is an application for the cancellation of bail granted to Shahama and Noora alias Noori respondents by the learned Single Judge of this Court in case under section 302/34, P.P.C. registered at Police Station, Khurrianwala, vide F.I.R. No. 162/85, dated 9‑9‑1985.

2. The prosecution case is that the respondents alongwith Falik Sher co‑accused variously armed launched murderous assault on Ali Sher alias Ali and caused his death on 9‑9‑1985 at 4 p.m. in the area of Chak No. 104/R.B. of Police Station, Khurrianwala.

3. As far the petitioners, it has been alleged that Shahama was carrying a gun and Noora alias Noori was armed with a knife at the time of occurrence. Shahama fired shot hitting in the abdomen of the deceased. Noori inflicted three blows with knife on the person of the deceased.

4. The respondents were allowed bail on 12‑4‑1986 by my learned brother Sardar Muhammad Dogar, J. Feeling aggrieved of this order Mst. Kalsoom complainant filed this application for the cancellation of bail granted to the respondents. Since my learned brother Sardar Muhammad Dogar, J. did not like to hear this petition, therefore, the matter was placed before my Lord the Chief Justice who has entrusted the same to me.

5. The learned counsel for the petitioner mainly submitted that the true facts were not disclosed before the learned Single Judge at the time of the hearing of the petition on 12‑4‑1986 and as such the order granting bail to the respondents, is based on wrong facts. The learned counsel explained that before the date of hearing i.e. 12‑4‑1986, the names of the respondents were placed in Column No. 3 under the orders of S.S.P., Faisalabad and were not in Column No.2 of the challan. So the contention of the learned counsel for the respondents/ petitioners therein which was not controverted by the learned State counsel that the names of the respondents were placed in Column No.2 was factually incorrect. The learned counsel for the State has supported this petition for the cancellation of bail. He has frankly conceded that in the final challan which had been prepared before 12‑4‑1986, the names of the respondents were placed in Column No.3 and not in Column No.2. The learned counsel fro the respondents while frankly and very rightly conceding that the names of the respondents were not in Column No.2 of the final challan, has vehemently opposed this application on the ground that the three Investigating Officers including two Deputy Superintendents of Police, had found the respondents innocent.

6. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the petitioner. I find that the respondents have been named in the F.I.R. that active participation in the commission of the murder of Ali sher deceased has been attributed to them; that the eye‑witnesses mentioned in the F.I.R. have supported the allegations of the murder of Ali Sher, against them; that from the trend of the order, dated 12‑4‑1986 granting bail to the respondents, it appears that the learned Single Judge was impressed by the contention that the names of the respondents/ petitioners therein were placed in Column No.2 of the challan. The operative part of the order may be reproduced advantageously:‑--

"Learned counsel for the petitioners contended that since names of the petitioners have been placed in column No.2, on having been found innocent by three different Police Officers, they deserve to be released on bail. In support learned counsel has cited Akbar and others v. The State 1985 P Cr. L J. 1878, Saeed Ahmad v. The State 1981 S C M R 565 and Mehr Din and another v. The State P L D 1979 Lah. 505.

The contention of learned counsel about the petitioners having been found innocent and placed in column No.2, and the same having been confirmed by the S.H.O. on the last date of hearing, is not controverted by learned counsel for the State.

Keeping in view the contentions raised by learned counsel for the petitioners and following the authorities cited by him, I feel inclined to grant bail to the petitioners."

It is, therefore, very much obvious that the bail was granted to the respondents under the impression that their names were placed in Column No.2 of the challan which was not factually correct on 12‑4‑1986 when the order was passed.

7. Without making any expression of opinion lest it may prejudice the merits of the case, I am of the view that it is a fit case for the cancellation of bail. The application is, therefore, allowed and the bail C granted to the respondents by the learned Single Judge on 12‑4‑1986 is hereby cancelled. The respondents shall immediately surrender themselves before the learned trial Court. The trial Court shall also issue warrants for their arrest.

M.Y.H. Bail cancelled.

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