IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Misc. Appln. No. S- 273 of 2022.

Applicant:                             Anwar Ali Shah, through Syed Soofan Shah, Advocate.

Respondents:                        Abdullah Shah and 2 others.

The State:                              Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

Date of hearing:                    07.11.2022.

Date of decision:                  07.11.2022.

O R D E R

Amjad Ali Sahito, J.-   Through instant criminal miscellaneous application under Section 497 (5), Cr.P.C, the applicant/ complainant Anwar Ali Shah has sought for cancellation of pre arrest and post arrest bail granted to accused/ respondents No.1 to 3, namely, Abdullah Shah, Akbar Shah and Muhsin Shah, by learned Additional Sessions Judge-I, Kamber, vide two separate orders dated 17.10.2022 and 20.10.2022 respectively, in Crime No.232/2022,  registered at Police Station Kamber (P.P Pakho), under Sections 363 and 34 P.P.C.

            Precisely, facts of the case are that, on 26.9.2022, the applicant/ complainant Anwar Ali Shah reported the matter to Police of P.P Pakho of P.S Kamber, to the effect that, he has been in matrimony with Syed Gulab Shah and others; the daughter of complainant, namely, Mst. Tahira Parveen is married to son of Syed Gulab Shah, namely, Saddique Shah, who have two daughters and one son from the wedlock. It is further alleged in the F.I.R that, daughter of the complainant was not being shown to him, as such he secured her custody by filing application under Section 491 Cr.P.C before learned Sessions Jude, Kamber-Shahdadkot @ Kamber and she alongwith her children was living with the complainant. That, on 26.9.2022 the complainant alongwith his daughter Tahira Parveen and son Mazhar Ali Shah proceeded to attend the hearing of case in Sessions Court Kamber, when they reached common street in village Aabri near house of accused Akbar Shah, it was 08.00 a.m. there arrived accused Abdullah Shah, Akbar Shah, Mohsin Shah in a while color Mehran car; they were having pistols and complainant noticed that the accused persons were taking away his grand children, namely, Sanaullah Shah aged six months, Ghulam Fatima aged two and half years, Amina aged about one and half year.

            It appears from the record that after registration of FIR, the accused/ respondent No. 1 Abdullah Shah was arrested by the police; he applied for post arrest bail to learned trial Court i.e. Court of 1^st Civil Judge and Judicial Magistrate, Kamber, who declined such plea vide Order dated 07.10.2022. Thereafter, he moved to learned Sessions Judge, Kamber-Shahdadkot @ Kamber with same plea, which too was declined vide order dated 17.10.2022. 

            It further appears that, the accused / respondents No.2 and 3 appeared before learned Sessions Judge, Kamber-Shahdadkot, with an application for grant of pre arrest bail, who were initially granted interim pre arrest bail, which was ultimately confirmed on 20.10.2022 and the said orders have 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, Kamber, has granted the bail to the accused/ respondents No.1 to 3 in capricious manner on the basis of perverse and invalid reasons; that learned Additional Sessions Judge has ignored the gravity of offence; that the prosecution witnesses in their statements recorded under Section 161 Cr.P.C have fully implicated the respondents No.1 to 3/ accused by supporting the version of complainant in the F.I.R; that the F.I.R was promptly lodged and the accused persons were nominated therein with active role and that after grant of bail the accused persons are extending threats to the complainant for withdrawing the case, thereby they have 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. So far the instant case is concerned, it appears that the respondents No.1 to 3/accused were admitted to bail by the learned Court below vide separate orders dated 17.10.2022 and 20.10.2022 respectively, and the applicant/ complainant has not mentioned in the application that accused have ever misused the concession of bail. The learned counsel has merely urged the ground that accused are extending threats to withdraw the case, but he has not produced any proof in this regard. Furthermore, from contents of F.I.R itself the dispute between the parties appears to be over custody of the minor children/ alleged abductees.

            Moreover, perusal of the impugned orders reflect that the accused/ respondent No.1 to 3 were admitted to pre-arrest bail on the grounds that, admittedly there is matrimonial dispute between the parties over custody of minors, as such question of kidnapping of minors is yet to be determined during trial; the complainant tried to convert civil nature dispute into criminal and case of prosecution required further enquiry and that the alleged offence does not fall within prohibitory clause of Section 497 Cr.P.C. A careful scrutiny of the impugned orders passed by the learned Additional Sessions Judge, these orders appear to be justified and not need to be interfered by this Court.

            It is re-iterated that it is 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 respondents No.1 to 3/ accused were not entitled for bail. In view of foregoing facts and circumstances, finding no substance in the instant criminal application is hereby dismissed in limine.

                                                       Judge

Ansari