ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr. Misc. Appln. No.S-177 of 2011
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
04.12.2012.
1. For orders on office objections.
2. For Katcha Peshi.
Mr. Faiz Muhammad Larik, advocate for applicant/complainant.
Mr. Naimatullah Bhurgri, State Counsel.
Mr. Shahbazz Ali Brohi, advocate for respondent No.1/accused.
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Naimatullah Phulpoto, J.- Through this criminal miscellaneous application complainant Atta Muhammad Chachar seeks cancellation of bail granted to accused Ayaz son of Umar Chachar vide order dated 23.6.2011 passed by learned IV-Additional Sessions Judge, Shikarpur in crime No.1/2011, registered at Police Station Daim Malik, District Shikarpur, under Sections 302, 337-H(2), 506/2, 148, 149, PPC.
2/- Brief facts of the prosecution case as disclosed in the F.I.R are that on 27.2.2011, at 1130 hours, complainant Atta Muhammad lodged his report, stating therein that on the day of incident he alongwith his cousins Akan, Khuda Bux, Mir Hassan, were loading the wood in the tractor-trolley near the Government Primary School, when at about 08.00 a.m., they saw accused 1) Nazoo armed with hatchet, 2) Umar armed with KK, 3) Soomar armed with KK, 4) Ayaz, 5) Arsalah, 6) Abdul Rasheed, all by caste Chachar, were armed with guns and one unidentified accused, who was also armed with gun. Upon their arrival, it is alleged that accused aimed their weapons towards complainant party and declared Akan as ‘Karo’ with Mst. Gulshan and stated that Akan would be murdered. Thereafter, it is alleged that accused Nazoo caused hatchet blows to Akan, which hit him and he fell down on the ground. On cries, co-villagers came running, accused persons while seeing villagers fired in air and went to western side. Injured Akan had received injury on his head, blood was oozing and complainant took the injured to police station and police referred injured to civil hospital, where he succumbed to injuries. Thereafter, complainant went to police station and lodged the F.I.R. After usual investigation challan was submitted against the accused under Sections 302, 337-H(2), 506/2, 148, 149, PPC.
3/- Mr. Faiz Muhammad Larik, learned advocate for applicant/complainant, argued that F.I.R was promptly lodged. The name of accused is mentioned in the F.I.R. Accused Ayaz was armed with gun at the time of incident and fired in air, shared common intention with co-accused. Order of the trial Court is perverse and in disregard of settled principles regulating grant of bail. Lastly, it is submitted that accused has issued threats to the prosecution witnesses. His bail may be cancelled.
4/- Mr. Naimatullah Bhurgri, learned State Counsel, argued that learned trial Court has rightly granted bail and it does not require interference and case against accused requires further enquiry.
5/- Mr. Shahbaz Ali Brohi, learned advocate for accused/respondent No.1, argued that bail was rightly granted to the respondent No.1/accused. Allegation against the accused was aerial firing. After grant of bail, concession of bail has not been misused. Allegations of extending threats to the prosecution witnesses have not been substantiated.
6/- Learned Additional Sessions Judge granted bail to the applicant/accused Ayaz by order dated 23.6.2011, for the following reasons :-
“Perusal of F.I.R shows name of applicant/accused is transpire in the F.I.R, he has been shown armed with shotgun, but the perusal of Memo of inspection of injuries shows that only one hatchet injury is caused at the person of deceased, which is specifically attributed to co-accused Nazoo and present of the applicant/accused shown at the place of incident and no overt act has been assigned to him. The case has been challaned and applicant/accused no more required for investigation purpose. Since the arrest of applicant/accused, he is behind the bars. In view of evidence available on record, it can safely be said that case of the applicant/accused is one of further inquiry calling for further probe into his guilt, hence considering the submissions agitated by the learned defence counsel, I allow this bail application and admit the applicant/accused named above on bail subject to furnishing solvent surety in the sum of Rs.200,000/- and PR bond in the like amount to the satisfaction of this Court. He may be released from jail if he is not required in some other case/crime.”
7/- I have heard the learned Counsel for the parties. It is well settled law that grounds for grant of bail and that of cancellation of bail are entirely different. Strong and cogent reasons are required for cancellation of the bail granted by a Court. Following are the legitimate grounds, which are recognized for cancellation of the bail:-
1) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice.
2) That the accused misuses his liberty by indulging in similar criminal activity.
3) That he attempts to tamper with the prosecution evidence.
4) That he makes himself scarce by going underground or becoming unavailable to the investigation agency.
8/- In the present case, learned trial Court has rightly granted bail to accused mainly on the ground that no active role was assigned to accused in the commission of offence. Mere there was allegation of aerial firing and sharing of the common intention with the co-accused, yet participation of the accused in the crime is to be determined at the trial. Above-mentioned recognized grounds for cancellation of the bail are not available. Bail granting order is neither patently illegal, nor erroneous. Therefore, there is no substance in this application for cancellation of the bail and the same is dismissed.
JUDGE
Qazi Tahir/*
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ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Bail Appln. No.S-472 of 2012
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
04.12.2012.
For Hearing.
Mr. Athar Abbas Solangi, advocate for applicant.
Mr. Naimatullah Bhurgri, State Counsel.
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NAIMATULLAH PHULPOTO, J.- Applicant/accused Ali Ahmed Khakhrani seeks bail in crime No.97/2012, registered against the accused at Police Station Naudero, for offence under Section 9(c) of the Control of Narcotic Substances Act, 1997.
2/- Brief facts of the prosecution case as disclosed in the F.I.R are that on 04.9.2012, complainant ASI Nazar Muhammad Abro of Police Station Naudero left police station at 9.30 a.m., in the government vehicle alongwith his subordinate staff, namely, PCs Zahid Ali, Tahir Rafique, and Muhammad Ali for patrolling. During the patrolling, when reached at Rice Canal regulator, ASI received spy information that present accused sells charas and he was going by foot on the path of Rice Canal having charas in his possession. On such information, police party proceeded to the pointed place, at 10.30 a.m., they reached at Rice Canal road leading to the Sukkur, where they saw the present accused. He was carrying a black-coloured plastic bag in his hand. He was surrounded and caught hold. His personal search was conducted by ASI in presence of mashirs PCs Zahid Ali and Muhammad Ali. From the plastic bag three pieces of charas were recovered. Charas was weighed in presence of mashirs named above. Its weight became 3000 grams. Charas was sealed at spot. Accused and case property were brought at Police Station, where case was registered against the accused under Section 9(c) of the Control of Narcotic Substances Act, 1997.
3/- During investigation charas was sent to the Chemical Examiner. On the conclusion of investigation challan was submitted. Bail application was moved on behalf of the applicant/accused before the Special Judge for CNS, Larkana. The same was rejected vide order dated 26.9.2012.
4/- Mr. Athar Abbas Solangi, learned advocate for applicant/accused, contended that prosecution case is doubtful. There are no reasonable grounds to believe that the accused has committed an offence. The charas has been foisted upon the accused. All the witnesses are police officials and no private person was associated. Applicant/accused is victim of the enmity. Lastly, it is argued that prosecution case requires further enquiry.
5/- Mr. Naimatullah Bhurgri, learned State Counsel, argued that 3000 grams charas have been recovered from the possession of the accused. Such huge quantity could not be foisted by the police officials. He has further submitted that no specific malafide/enmity has been alleged against the police officials. Alleged offence falls within prohibitory clause of Section 497, Cr.P.C. He has opposed the bail application.
6/- In my considered view, prima facie there is huge material against the applicant/accused to connect him in the commission of the offence. According to the prosecution case, 3000 grams charas were recovered from the possession of the accused. Apparently such huge quantity could not be foisted. Contention that private persons were not associated as mashirs in this case requires deeper appreciation, which is not possible at bail stage. Report of the Chemical Examiner is in positive. Offence under Section 9(c) Control of Narcotic Substances Act, 1997 is punishable for death or imprisonment for life. Therefore, there is no merit in the above bail application and stands dismissed.
Needless to observe that the above observations are tentative in nature and the trial Court shall not be influenced, in any manner, while deciding the case.
JUDGE
Qazi Tahir/*