THE HIGH COURT OF SINDH AT KARACHI

Criminal Miscellaneous Application No.478 of 2019

 

 

Applicant/ Complainant:         Basharat Hafeez Siddiqui son of

Abdul Hafeez Siddiqui, through

Mr. Ijaz Farooq Khan, Advocate

 

 

Respondent No.1            :         XII Additional District & Sessions

Judge West, Karachi.

 

Respondent No.2            :         Habib-ur-Rehman son of Anwar

Baig

 

Respondent No.3            :         The State through Mr. Siraj Ali Khan

                                                Additional Prosecutor General, Sindh.

 

Date of hearing               :        26.10.2020

 

Date of Order                  :        26.10.2020

 

 

ORDER

 

 

Abdul Maalik Gaddi, J. –  Through this Criminal Miscellaneous Application, the applicant/complainant has assailed the legality and propriety of the order dated 08.10.2019 passed by the Court of learned XIIth Additional Sessions Judge, Karachi (West) in Bail Before Arrest Application No.2526 of 2019 filed by the respondent No.2 Habib-ur-Rehman son of Anwar Baig (“the accused”), whereby the Presiding Officer of the learned trial Court after hearing the parties confirmed the interim pre-arrest bail, which were already granted in favour of the accused vide order dated 18.09.2019, with direction to join the trial proceedings.

 

2.       Facts necessary for the disposal of this criminal miscellaneous application are that the applicant has lodged the FIR against the accused at police station Saeedabad, alleging therein that on 28.07.2019 at 08:50 a.m., when he was present at his house, his father namely, Abdul Hafeez Siddiqui aged about 75 years went outside and busy in cleaning and watering the flowers. Suddenly one Mazda Water Tanker bearing No.JT-1762 driving by Hafizullah while reversing hit his father due to which his father fallen down and sustained injuries and water tanker’s rear tanker ran over his father. Due hue and cry of his father, complainant came outside the house and saw his father lying in injured condition. Thereafter, complainant took his father of Murshid Hospital for treatment. Hence, this FIR.

 

3.       It is argued by learned counsel for applicant/ complainant that the order passed by the trial Court dated 08.10.2019 is against law and facts and submitted that the FIR was lodged by the complainant by stating all facts and circumstances under which his father was died due to negligence of the driver of the vehicle of respondent No.2; that learned trial Court has failed to consider that owner of vehicle is equally responsible for such incident as he given the vehicle to driver who drove the vehicle in negligent manner and committed such offence. During the course of arguments, he has also reiterated the same facts and grounds, which he has urged in the memo of criminal miscellaneous application. In support of his contentions, learned Counsel has relied upon the case of Atta Muhammad v. The State reported as 2005 P.Cr.L.J. 1648 [Karachi].

 

4.       Learned Additional Prosecutor General, Sindh while supporting the impugned order contended that the impugned order is perfect in law and on facts as the same has been passed after appreciation of documents and evidence on record; that the driver has been granted bail by this Court, as such, no ground for cancellation of bail to the owner of vehicle is made out.  

 

5.       Arguments heard and record perused.

 

6.       On a close scrutiny of the material placed on file, I am of the opinion that prima facie reasonable grounds do not exist for believing that the accused has committed the offence. Progress report submitted by the Presiding Officer of the Court of learned Additional District and Sessions Judge-XII, Karachi (West) is taken on record, in which it is stated that out of nine (9) witnesses, one (01) one PW i.e. complainant Basharat Hafeez Siddiqui has been examined. The name of the accused is not appearing in FIR and his name was given by co-accused. The reasons for granted bail to him is quite sufficient/ convincing and XIIth Additional Sessions Judge, Karachi (West) has recorded a speaking order. In the circumstances, I do not see any justification as to why the discretion exercised by the trial Court judiciously be interfered with by this Court. It is also pointed out by the learned Additional Prosecutor General, Sindh that the driver of the water tanker namely, Hafizullah has been granted bail by this Court. When this fact confronted to learned Counsel for the applicant, he has no reply with him. In the case in hand, the bail has been confirmed to the owner of the vehicle and admittedly he was not seated/available with the driver Hafizullah inside the vehicle at the time of incident, therefore, no purpose would be served for sending the respondent No.2 in jail.

 

7.       Even otherwise, strong and exceptional grounds are required for the cancellation of bail granted by a Court of competent jurisdiction because the provisions of Section 497(5), Cr.P.C. are not at all punitive. Resultantly, there is no legal compulsion even for the cancellation of the bail granted in cases which are punishable with death/life imprisonment/ imprisonment for ten years.

 

8.       Additionally, the accused is not to be deprived of the benefit of bail whenever reasonable doubt arises about his/ their participation in the crime or about the truth/ probability of the prosecution case. In such a situation, it would be better to keep him on bail than in the jail during the period of the trial and the personal liberty granted to him by a Court of competent jurisdiction, through grant of bail, should not be snatched away from him/ them unless it becomes absolutely necessary to do so under the law. In this respect, I am supported by the case of Syed Amanullah Shah v. The State reported in PLD 1996 SC 241.

 

9.       In the circumstances, I am of the view that this application for the cancellation of bail is without any substance. The same is accordingly dismissed along with listed applications. The case law cited by the learned Counsel for the applicant has been perused and considered by me, but did not find applicable to the facts of the present case. Even otherwise, in Criminal Administration of Justice, each case has to be decided on its own facts and circumstances and Courts are required to exercise jurisdiction independently, as held by the Hon’ble Supreme Court of Pakistan in the case of The State v. Haji Kabeer Khan reported as PLD 2005 Supreme Court 364 and Muhammad Faiz alias Bhoora v. The State and another reported as 2015 SCMR 655.

 

10.     It is pertinent to mention here that if during proceedings before trial Court if the accused misuses the bail, then trial Court is competent to take action against the accused as per law. Since it is a case of alleged accident and case is pending before trial Court, therefore, the Presiding Officer of the trial Court is directed to proceed the matter expeditiously and decide the same as early as possible under the intimation to this Court. Office is directed to immediately send the copy of this order to the trial Court for information and compliance.

 

 

JUDGE

 

Faizan/PA*