ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Misc. Appln. No. S-  167 of 2022.

Date of hearing

Order with signature of Judge

17.11.2022.

For hearing of main case.

            Mr. Waqar Ahmed A. Chandio, Advocate for applicant.

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

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Amjad Ali Sahito, J: Through this application, applicant/ complainant Gulsher seeks cancellation of pre-arrest bail granted to accused/ respondent Riaz Hussain by learned 2^nd Additional Sessions Judge, Kamber, in Crime No.23/2022, registered with P.S Nasirabad (District Kamber-Shahdadkot), for offence punishable under Sections 302 and 201 P.P.C, vide order dated 25.05.2022.

            Precisely, facts of the case are that, on 01.03.2022 complainant/ applicant Gulsher reported the matter to Police of P.S Nasirabad to the effect that on 28.2.2022 his son Naveed Ali aged 17/18 years went to visit the land and till 07.00 p.m. did not return, as such he was searched and on next date i.e. 01.03.2022 at 09.00 a.m. the complainant party reached land of Wajid Hussain, where they found a heap of paddy was sent on fire and blood way lying on the earth near shoes, which was identified by complainant party as of son of complainant Naveed Ali, as such they checked the ashes and found dead body and behind the dead body a piece of shirt was also found, worn by son of complainant. The firearm injuries were also found on the dead body. The complainant lodged the F.I.R against unknown culprits.

            The record reflects that a J.I.T was constituted and during investigation statements of certain persons were recorded, who disclosed the name of the accused/ respondent No.1 Riaz Hussain and Akeel Ahmed as his co-accused. As such, the accused/ respondent No.1 appeared before learned Sessions Judge, Kamber-Shahdadkot, with an application for grant of pre arrest bail; he was initially granted interim pre arrest bail, which was ultimately confirmed vide impugned order, which has been called in question by the applicant/ complainant through instant criminal miscellaneous application.

            Learned counsel for the applicant inter alia contended that learned Additional Sessions Judge has granted the bail to the accused/ respondent No.1 in capricious manner on the basis of perverse and invalid reasons; that learned trial Judge has ignored the gravity of offence; that the independent persons of locality in their statements have fully implicated the accused/ respondent No.1; that the ocular version also stands supported by medical evidence; that the delay, if any, in lodgment of F.I.R is well explained by the complainant and that after grant of pre arrest bail the accused is extending threats to the complainant for withdrawing the case, thereby he has attempted to tamper with prosecution evidence, as such pre arrest bail granted to them is liable to be recalled.

            On the other hand, learned D.P.G has supported the impugned order and submitted that the same is legal and has been passed after giving due consideration to the material available on record. He has submitted that the grounds urged by the applicant’s side need full-fledged inquiry at the trial; hence the application in the given circumstances is not maintainable under the law and may be dismissed accordingly.

            I have given due attention to the submissions made by the learned counsel for respective parties and have carefully perused the record.

            The grant of bail and the cancellation of bail substantially stand on different footings and there is no compulsion for cancelling the bail unless the bail granting order is found patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice or where the accused is found to be misusing the concession of bail by extending threats or tampering with the prosecution case.

            Perusal of the impugned Order reflects that the accused/ respondent No.1 was admitted to pre-arrest bail on the grounds that, name of applicant is not appearing in F.I.R; nor in 161 Cr.P.C statements of witnesses recorded on 07.3.2022; however on same day i.e. 07.3.2022 statements of two other independent witnesses were recorded who are not shown as witnesses in F.I.R; that firstly the prosecution witnesses did not implicate the applicant but later on, they implicated him, as such the case of applicant appears to be of further enquiry. 

            A careful scrutiny of the impugned order passed by the learned Additional Sessions Judge, this order appears to be justified and not need to be interfered by this Court.

            Moreover, the accused/ respondent No.1 has been enjoying concession of bail since 27.4.2022 for a period of about six months without misusing the same; as such it would not be appropriate that they would be put behind the bars by recalling impugned bail order. Reference in this regard, can be had from the case of Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others (2005 SCMR 1539); whereby Hon’ble Supreme Court of Pakistan while declining the cancellation of bail petition has observed as under:

            “Without commenting on the merits of the submissions and dilating upon the merits and demerits of the prosecution case, which might prejudice the case of either side, suffice it to say that the discretion exercised by the High Court does not suffer from any apparent illegality or arbitrariness. Learned Judge in the High Court appears to have weighed the facts and circumstances of the case carefully for the limited purpose of grant or otherwise of the bail, which does not warrant any interference by this Court in the exercise of Constitutional jurisdiction. It may further be pointed out that the respondents during the last more than two years having enjoyed the concession of bail without misusing it should not be put behind the bars by recalling the bail order at this stage.

            While declining leave to appeal against the impugned order, we would direct the trial Court to expedite the trial and complete it as quickly as possible so as to finally decide the fate of the case. It may also be clarified that the trial Court shall not be influenced by the observations made by the High Court or by this Court in the backdrop of the prayer for bail or cancellation thereof.”                     

            It is also well-settled law that provisions of sub-Section (5) of Section 497, Cr.P.C are not punitive in nature and there is no compulsion for cancelling the bail unless the bail granting order is patently illegal, erroneous, factually incorrect or without jurisdiction having been passed without observing mandatory provision of law. Moreover, unless strong and exceptional grounds, such as, abuse/ misuse of concession of bail exit, this Court would not interfere with the order of granting bail.

            For the foregoing reason, I am of the opinion that the bail has been properly granted by the Court of competent jurisdiction and nothing has been brought on record to show that the accused/ respondent No.1 was not entitled for bail. In view of foregoing facts and circumstances, finding no substance in the instant criminal application is hereby dismissed.

                                                              Judge

Ansari