ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Misc Application No. 346 / 2009.

Date                                    Order with signature of Judge

05-04-2010

Mr. Muhammad Ali Chippa advocate for the applicant.

Mr. Zahid Mahmmood Khan advocate for respondent No.2 along with Mr. Mehar Khan.

Mr. Zahood Shah APG for State.

AHMED ALI M. SHAIKH, J.          Through this application, the applicant called in question the impugned order dated: 29.09.2009 passed by learned VII-Additional Sessions Judge South Karachi in Sessions case No. 408/2008, whereby he granted the bail to the respondent No.2 Zahid Mehmood Khan.

Par prosecution, the allegation against the respondent No.2 is that he on 19.04.2008 enticed away Mst. Afshan aged about 13 years and confined her in his house and committed Zinna with her. After usual investigation, the case was challenged before the concerned court. It is inter alia contended that the respondent No.2 was nominated in the FIR with specific role. Mst. Afshan victimize of the offence has impleaded the respondent in her statement U/s 164 Cr.P.C as well as her deposition recorded by the trial court. He has further contended that the medical certificate also corroborates the version of the victim and the abductee was recovered on the pointation of respondent Zahid. The bail application of the respondent was rejected twice by the trial court and subsequently the bail application filed before this court and same was withdrawn. He want to say that the learned trial judge while admitting the respondent on bail was not justified to give his findings on merits of the case. In support of his contentions he has relied on Muhammad Aslam V/s State (2004-P.Cr.L.J-548), Amjad Hussain V/s State (2004-P.Cr.L.J-550), Rashid V/s State 92002-S.C.M.R-1329), Atif Ali Shahzad V/s State and another (2007-P.Cr.L.J-649) and Raheemdad V/s State (2001-MLD-847).

Conversely learned A.P.G  and Mr. Mehar Khan Rajput advocate for the respondent No.2 contended that all the material witnesses have been examined and at this stage bail granted to the respondent can not be cancelled. They further contended the trial court has granted the bail to the respondent on the ground that case was not concluded within a one year as directed by Honourable High Court vide order dated: 09.09.2008.

Upon a bare perusal of impugned order, it appears that on 06.08.2009 earlier bail application of the respondent was rejected by the trial court but subsequently when the respondent filed the criminal Bail Application No. 1052 of 2008 before this court but same was withdrawn and the directions were issued to the trial court to conclude the case within one year. However when the case is at the verge of conclusion, the respondent No.2 has been granted bail by trial court on the ground that since the trial could not conducted within stipulated period not only this but through the said order the trial judge has appreciated the evidence to some extent though at this stage he had to avoid the same. Since all the prosecution witnesses except one have been examined in the case and the case is at the verge of completion, hence in view of dictum laid down by the Honourable Supreme Court in the case of Haji Mian Abdul Rehman V/s Riazuddin (2008-SCMR-1206) and particularly in the case of Tariq Bashir v/s The State (1995-SCMR-34) where their lordships held as under:-

“The ultimate conviction and incarceration of a guilty person can repair the wrong caused by mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run”.

Keeping in view above principles laid down in the case of Tariq Bashir V/s The State and stage of the case when all the prosecution witnesses have been examined except one, I am of the considered view that it would not be appropriate to cancel the bail of the applicant, granted by the trial court. However the trial court is directed to conclude the case within a month and shall not adjourn the case on any flimsy or artificial ground except on a very strong and cogent reason and even in that eventuality case shall not be adjourned beyond three days. The trial court shall submit the progress report of each hearing through Assistant Registrar (Criminal) of this court. The application stands disposed off. At this stage I do not think it proper to cancel the bail granted to the respondent/accused.

                                                                                                       JUDGE

ABDUL SALAM P.A