IN
THE HIGH COURT OF SINDH AT KARACHI
Criminal Miscellaneous Application No.462
of 2023
|
DATE |
ORDER WITH
SIGNATURE(s) OF JUDGE(s) |
For
hearing of main case
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22.04.2025
M/s Salahuddin
Khan Gandapur & Safeeruddin
Khan Gandapur, advocate for applicant
Ms. Amna
Ansari, Additional Prosecutor General Sindh
Mr. Tufail
Ahmed Mashori, advocate for respondents 1 to 3
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Applicant/complainant has impugned
order dated 18.05.2023, passed by learned Additional Sessions Judge-III,
Karachi South, whereby respondents 1 to 3 were admitted to pre-arrest bail in
FIR No.105/2023, registered at P.S. Garden, Karachi South for offence under
sections 365, 511, 337-A(i), 324, 34, PPC.
2. Brief facts of the case are that on
25.04.2023 at 02:00 p.m. complainant saw that respondents 1 to 3 and others
were dragging his 13 years’ nephew Muhammad Ali Khan in order to commit sodomy
with him, to which complainant raised hue and cry whereupon his nephews Hassan
and Sameer Khan reached and resisted kidnapping, however, accused persons
attacked upon them, caused injuries to them and by making firing they escaped
away. Hence the subject FIR.
3. Learned counsel for
applicant/complainant submits that learned trial Court has admitted respondents
1 to 3 to pre-arrest bail, without considering the point of mala fide on the
part of complainant for false implication, which is an essential requirement for
granting pre-arrest bail as held in the case of Mst.
Noor Habib versus Saleem Raza and others (2009 SCMR 786), therefore,
pre-arrest bail granted to respondents 1 to 3 may be recalled.
4. Learned Additional Prosecutor General
Sindh, assisted by learned counsel for respondents 1 to 3, submits that alleged
offence does not fall within the prohibitory clause of Section 497, Cr.PC; that place of incident is outside the Masjid, which is
a busy place but the complainant has not cited any independent witness; that
this is a case of ineffective firing and no specific allegation has been
leveled against the accused/respondents; even no empty was recovered from the
place of incident; that grant of bail and its refusal is entirely on different
footings. They further supported the impugned order.
5. Heard learned counsel for
applicant/complainant, learned Additional Prosecutor General Sindh, counsel for
respondents 1 to 3 and perused the material available on record.
6. Admittedly, there is a delay of 9 days
in lodging of FIR and in the background of enmity it can be ruled out that the
FIR was lodged due deliberation and consultation; no specific allegation has
been leveled against respondents 1 to 3; neither any crime empty was recovered
from the place of incident nor it is alleged that any sodomy has been committed
with the nephew of applicant/complainant, mere allegation that the respondents
intends to abduct the boy for sodomy requires evidence. I have gone through the
impugned order and reproduce its relevant portion as under:
“On
perusal of the record, it appears that Matiullah is
brother of co-accused Shah Alam and uncle of present
applicants/accused, who moved applications at PS, filed criminal petition and
lodged FIR against the fathers of injured PWs Hassan Khan and Sameer Khan as
well as brothers of complainant Aslam Khan. As per
medico legal certificate, Hassan Khan received two injuries on head, PW Sameer
Khan suffered two injuries on head and complainant Aslam
Khan suffered two injuries on face and neck. All injuries were declared as Shuja-e-Khafifah and Shuja-e-Mudiah and Jurh, Ghair Jaifah
Damiyah, covered by sections 337-A(i)A(ii)
and F-(i) PPC. Only injury falling under section 337-A(ii)
PPC is non-bailable, however, the same is not covered
by the prohibitory clause section 497(1) Cr.PC. In
FIR, it was not mentioned whether which injury was caused by which accused,
therefore, the case needed further enquiry. Nobody was injured during the firing, therefore, the incident was one of ineffective
firing. Crime empties have not been recovered from the place of incident. The
applicants/accused have no previous criminal record
and due to enmity, malafide of the complainant could
not be ruled out.”
7. Hon’ble
Supreme Court has held in the cases of Muhammad Ramzan
versus Zafrullah (1986 SCMR 1380) and Muhammad Ijaz versus The State (2022 SCMR 1271) that merits can be
considered in a case of pre-arrest bail. It is well settled law that
considerations for grant of bail and those for its cancellation are entirely
different. Reliance is placed on the cases of Saeedullah
& 2 Others versus The State (2023 SCMR 1397), Samiullah
and another versus Laiq Zada
and another (2020 SCMR 1115) and Shahid Arshad versus Muhamad Naqi Butt and 2 others (1976 SCMR 360). No allegation has
been leveled regarding any misuse or abuse of concession of bail by respondents
1 to 3. Progress report was called from learned trial Court which reveals that
complainant party is reluctant to proceed with the case and due to their
absence case is pending without progress in the trial since the date of framing
of charge i.e. 18.10.2023. The alleged offence does
not fall within the ambit of prohibitory clause of Section 497, Cr.PC and rule in such cases is bail and its refusal is an
exception, as held by apex Court in the case of Muhammad Tanveer
versus State (PLD 2017 SC 733). In such circumstances, I do not find any occasion
to interfere with the exercise of jurisdiction and discretion in the matter.
Therefore, instant criminal miscellaneous application is dismissed.
J U D G E
Gulsher/PS