ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Misc. Appln. No. S-  291 of 2021.

Date of hearing

Order with signature of Judge

17.09.2021.

            Mr. Muhammad Yousif Magsi, Advocate for applicant-complainant.

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Through this application, applicant-complainant Ali Akbar Lashari seeks cancellation of pre-arrest bail granted to accused-respondent Hussain Bux alias Wadero Khan Jamali by learned 1^st Additional Sessions Judge, Shahdadkot, in Crime No.26/2021 of P.S Sanjar Bhatti (District Kamber-Shahdadkot) registered under Sections 457 and 380 P.P.C, vide order dated 30.08.2021.

            In a nutshell, the case of prosecution is that, applicant-complainant reported the matter to the Police of P.S Sanjar Bhatti to the effect that on fateful night i.e. 30.06.2021, at about 1.30 a.m. the complainant party woke up due to barking of dogs and noticed house-breaking in their house; they further saw and identified three persons in the light of solar including respondent-accused Hussain Bux alias Wadero, while fourth person could not be recognized, who all were going out of their house having pack of cloth so also weapons etc. in their hands. The complainant then verified and found certain articles of his house including gold ornaments worth Rs.3,75,000/-, were stolen away by the accused persons. The complainant lodged F.I.R of the incident on 06.7.2021.

            It appears that, after registration of the F.I.R, the accused-respondent No.1 approached learned Sessions Judge, Kamber-Shahdadkot with an application for grant of pre-arrest bail and he was admitted to interim pre-arrest bail on 08.07.2021. However, such application was made over to learned 1^st Additional Sessions Judge, Shahdadkot, who after hearing the parties counsel confirmed interim pre arrest bail on same terms and conditions vide impugned order dated 30.8.2021, which has been challenged by complainant before this Court by moving instant criminal miscellaneous application.

            I have heard the learned counsel for the applicant-complainant at length and called upon him to satisfy about any infirmity in the impugned order but he could not satisfy the Court and was unable to show any infirmity in the impugned order, so also he failed to show any substance for canceling the bail granted to the respondent-accused. He mainly argued that the name of accused-respondent No.1 is transpired in the F.I.R and the prosecution witnesses fully supported the version of complainant and that the accused-respondent No.1 has committed a heinous offence.

            Perusal of the impugned order reflects that the accused-respondent No.1 was admitted to pre-arrest bail on the grounds that the F.I.R has been registered with delay of seven days; that incident took place in odd hours of night and source of identifying the accused is solar bulb light which is weak type of source; that the offences do not fall within prohibitory clause of Section 497 Cr.P.C. and that the co-accused are already granted post arrest bail and case of accused-respondent No.1 is also on same footings therefore he deserved same treatment and concession on the basis of rule of consistency.

            Moreover, the accused-respondent No.1 has been enjoying concession of bail since 08.07.2021, for a period of more than two months without misusing the same; as such it would not be appropriate that he 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.”                     

            On careful scrutiny of the impugned order it appears that the learned Additional Sessions Judge by admitting the accused-respondent No.1 to pre arrest bail has rightly exercised his discretion and order seems to be justified, well reasoned and need no interference by this Court. Accordingly, in view of above, the instant application being devoid of merits was dismissed vide short order dated 17.09.2021, in limine, and these are reasons for my short order.

                                                Judge

Ansari