IN THE HIGH COURT OF SINDH
CIRCUIT COURT, LARKANA
Crl. Misc. Appln. : Hajjan Chachar vs.
No. S- 73 of 2020 Nawab alias Awri& others
For the Applicant : Mr. Altaf Hussain Surahyo, Advocate
For the Respondents : Mr. Asif Ali Abdul Razzak Soomro, Advocate
No.1 & 2.
For the State : Mr. Aitbar Ali Bullo,
Deputy Prosecutor General.
Date of hearing : 18.02.2022.
Date of announcement : 18.02.2022.
ORDER
Agha Faisal, J. The applicant/ complainant has assailed order dated 28.3.2020 rendered by learned Additional Sessions Judge, Kashmore, whereby post arrest bail was granted to accused/ respondents No.1 and 2.
2. It is contended by the learned counsel for applicant/ complainant that the learned trial Court did not appreciate material/ evidence in its proper perspective and that even after obtaining concession of bail the accused/ respondents No.1 and 2 have been extending threats to the applicant/ complainant, hence, the concession of bail ought to be withdrawn.
3. Learned counsel for the accused/ respondents No.1 and 2 supports the impugned bail order and submits that the accused/ respondents No.1 and 2 had not been nominated in the F.I.R, but that their names were added in a further statement of the complainant and even then no specific role has been assigned to them.
4. Learned D.P.G. has supported the impugned bail order and submitted that no interference is merited therein.
5. Heard and perused. It is considered illustrative to reproduce pertinent observations of the learned trial Court herein below:
“I have considered the submissions made by the parties and gone through the material available on the record. Though a brutal occurrence appears to have been taken place, yet names of present applicants/ accused are not transpired in the F.I.R, which does not bear any features of the unidentified accused. Name of accused Nawaz alias Awari however appears to have been introduced in 161 Cr.P.C statements of PWs Bashir Ahmed, Ayaz Ahmed, Mehboob and Mst. Hurmat recorded on next date of F.I.R viz. 24.01.2020 and in further statement of complainant recorded on 30.01.2020, whereas name of accused Menhoon was also introduced in same furtherstatement of complainant and so also in further statement of PW Bashir recorded on 03.2.2020 and in further statements of P.Ws Mehboob and Mst. Hurmat recorded on 07.2.2020. All of them just disclosed that initially name of Menhoon had not come to their mind therefore, recollecting his name they made furtherstatements. In F.I.R numbers of 12 persons were shown to be present including two unidentified persons at the spot, yet in 161 Cr.P.C statements numbers of identified accused has been enhanced to 12 and two have still been shown to be unidentified, totaling 14. Specific role of firing is assigned to accused Nadar (kept in column No.2 of the charge sheet). Bhoori and Gaddi to the both deceased an injured PWs Mehboob and Mst. Hurmat. The role assigned to the remaining accused was causing of butt blows to Mst. Hurmat in general terms. In such back droppresence and participation of both present accused/ applicants call for further inquiry. Therefore, I, allow both bail applications and grant bail to the applicants/ accused Nawab alias Awri son of Din Muhammad by caste Mazari, and Menhoon son of Ali Gul Mazari subject to furnishing solvent surety in the sum of Rs.200,000/- (two lacs) each and P.R bonds in the like amount to the satisfaction of this Court.”
6. It is settled law that while deciding a bail application no deep appreciation of evidence is warranted inter alia since the order is not designed to determine culpability of an accused but to regulate custody until conclusion of the trial. The discretion of the learned trial Court is guided by settled principle of law and no cavil has been articulated to suggest such discretion has been exercised otherwise than in accordance with the law.
7. In so far as the allegations of post bail malfeasance are concerned, it is recorded at the very onset that such assertions are admittedly post facto and would not bring the impugned order, rendered prior in time, into error. Since the custody of the accused / respondents is being regulated by the learned trial court, the applicant remains at liberty to place any reservations there before.
8. Learned counsel for the applicant has impugned the aforesaid findings, however, has remained unable to set forth a case that such findings could not reasonably have been rendered on the underlying record.The learned Court has clearly recorded the controversy and taken a decision there upon based on the record placed there before. No exception in such regard has identified to this court by the applicant's counsel and no patent illegality/irregularity has been identified.
9. This court has considered the impugned order and is of the view that the findings arrived at are well reasoned and borne from the record there before, to which no cavil has been articulated by the applicant's counsel. The order prima facie demonstrates the requisite tentative appreciation of the record / evidence and also shows that ample opportunity was provided to the concerned to state their case. Applicant's counsel has remained unable to identify any manifest infirmity in the impugned order, meriting interference.It is trite law[1] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.
10. In view of herein above, this application is determined to be devoid of merit and is hereby dismissed.
JUDGE
[1]Per Faqir Muhammad Khokhar J. in NaheedNusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.