IN THE HIGH COURT OF SINDH AT KARACHI
Criminal
Miscellaneous Application No.1024 of 2024
|
DATE |
ORDER WITH
SIGNATUREs OF JUDGEs |
For
hearing of main case
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16.05.2025
Mr.
Ahmed Hussain Jokhio, advocate for applicant
Mr.
Tahir Hussain Mangi, A.P.G.
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Applicant/complainant
has impugned order dated 30.09.2024, passed by learned Additional Sessions
Judge-III, Karachi South whereby respondents/ accused were admitted on bail.
Complainant has filed application for cancellation of bail under Section
497(5), Cr.PC before learned trial Court, which was too dismissed vide order
dated 30.09.2024, hence this criminal miscellaneous application for cancellation
of bail.
Learned
counsel for applicant submits that learned trial Court has not considered the
settled principles for grant of pre-arrest bail to the respondents/ accused and
the respondents have failed to make out their case for pre-arrest bail despite
that they were admitted to extra-ordinary relief in the shape of grant of
pre-arrest bail, therefore, their bail granting order may be recalled and they
may be taken into custody.
Today,
Mr. Ammad Ghaffar, advocate, files Vakalatnama on behalf of private respondents
and supports the impugned order dated 30.09.2024. He submits that learned trial
Court while granting pre-arrest to respondents/accused had not committed any
illegality and order passed by learned trial Court is in accordance with law.
Learned
A.P.G. has pointed out that applicant/complainant raised the same grounds which
were available at the time of granting pre-arrest bail to the
respondents/accused, therefore, on the same grounds bail cannot be cancelled.
Heard
learned counsel for applicant, learned counsel for respondents as well as
learned A.P.G. and perused the material available on record.
It is
the case of applicant/complainant that respondent No.4/accused Shazia alias
Iqra has contracted second marriage with respondent No.1/accused Muhammad
Yasir, without getting divorce/khulla, therefore, she has committed Zina. The
relevant portion of the order is reproduced below:
“On
perusal of the record, it appears that in view of statement of the victim
recorded under section 164, Cr.PC, applicability of Section 496-A, PPC is yet
to be determined at the trial. The facts of divorce, Rukhsati and pregnancy
require deeper appreciation which is not permissible at bail stage. The
complainant and parents of victim are annoyed with the second marriage of the
victim with the applicant/accused, therefore, mala fide on their part could not
be ruled out.”
In
view of above, it is clear cut case of further inquiry and pre-arrest bail has been
granted by learned trial Court to the respondents/accused in accordance with
law. 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). 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). It has not come on record that
the respondents/accused have not violated any of the terms and conditions of
bail granted to them by learned trial Court, therefore, instant criminal
miscellaneous application is misconceived, the same is accordingly dismissed.
J
U D G E
Gulsher/PS