ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

CR. MISC. A. NO.S-417 OF 2011.

DATE ORDER WITH SIGNATURE OF JUDGE

1. FOR ORDERS ON M.A.NO.5888 OF 2011.

2. FOR ORDERS ON M.A.NO.5889 OF 2011.

3. FOR KATCHA PESHI.

21.10.2013.

Mr. Badal Gahothi, Advocate for applicant.

Mr. Ghulamullah Chang, Advocate for respondents No.2.

Mr. Muhammad Iqbal Kalhoro, Additional Prosecutor General.

SALAHUDDIN PANHWAR, J.- Through instant application, applicant Ghulam Mustafa Babur seeks cancellation of bail, granted to the respondents No.1 and 2 by the trial Court vide order dated 09.07.2011.

2. Learned counsel for applicant, inter alia, contends that specific role to both respondents is assigned by the complainant, in spite of that trial Court has granted bail, thus, same order is against the settled principles of criminal administration of justice; medical evidence is in corroboration of ocular evidence; after grant of bail both respondents have misused the same and issued threats to the complainant and the witnesses with attempt to tamper their evidence. He further contended that applicant had moved application in regard to the threats issued by the both respondents before D.I.G, simultaneously such N.C. was also recorded. In support of his contention, learned counsel has relied upon WAZIR v. GHULAM MUSTAFA and 2 others (2003 Y L R 1884), TAGHIAL v. GHOUS BUX and another (2003 Y L R 1989), NAUKAF v. SHER ALI and another (2003 Y L R 3172), LIAQUAT ALI BHURGRI v. NAVEED and another (2005 Y L R 2069), Mst. ISMA BIBI v. THE STATE and another (2005 M L D 484) and DUR MUHAMMAD v. BASHIR AND 2 others (1983 P Cr. L J 2053).

3. While refuting the contentions, raised by learned counsel for applicant, counsel for respondent argued that place of incident was thickly populated, in spite of that no independent witness was joined; respondents were implicated due to matrimonial dispute; about two years have passed and in such period both respondents have not misused the concession of bail granted to them by the trial Court.

4. Learned A.P.G. contended that since it is for adjudication of trial Court of both respondents and they are on bail, thus, direction may be issued to the trial Court for conclusion of the trial; moreover, there is three days’ delay in lodging the F.I.R, which has not been explained.

5. Heard counsel and perused the record.

6. After careful consideration of contentions, raised by respective counsel and material available on record, suffice to say that criteria for grant of bail and cancellation of bail is entirely different. While deciding the application for cancellation of bail it is material to see whether impugned order is perverse, capricious, shocking and against the settled principles of law. Keeping in view the said touchstone, it is manifested that F.I.R. is delayed for about three days though it is settled principle of law that the delay per se no ground for cancellation of bail, however, such ground can be looked into with other material collected by investigating agency. It will be conducive to refer the relevant portion of impugned order, which reads as under:-

“The above incident has taken place on 7.4.2011, whereas the FIR was lodged on 10.4.2011. The place of incident is the house of deceased. The motive behind such incident is illicit relation of wife of deceased with accused Khan Muhammad, which resulted differences between the complainant and accused Mst. Fozia and in the result of which a wall was erected whereby separate portion was made. As per contents of FIR the complainant heard the voice of deceased, immediately reached at the place of wardat where he saw accused Khan Muhammad and Arbab, holding the deceased, whereas accused Mst. Fozia was found putting the pesticides in the mouth of deceased.

If this statement of complainant is taken as true, certain other documents available in the police papers negates the situation, particularly mashirnamas of dead body, which does not suggest any sort of injury, found on the body of deceased and the post mortem report also suggests that not a single injury or scratch was found on the body of deceased. If a young person was giving anything forcibly, his resistance cannot be ruled out.”

7. From bare perusal of said contention and pleas raised by learned counsel for applicant, it is pertinent to say that learned counsel has failed to point out any illegality in the said contention or negate the same with any substance. According to impugned order, there is no evidence of exotica or any injury caused to the deceased or even any scratch was found on the body of the deceased. Moreover, respondents are on bail since two years and with regard to the allegation that respondents have tried to tamper with the prosecution case thereby they have issued threats to the complainant and witnesses, it is enough to say that in that regard applicant is at liberty to move application for cancellation of bail before the same Court and concerned Court if comes to conclusion that there is sufficient evidence with regard to the attempt of tampering with the prosecution case, it may cancel the bail, but such ground cannot be agitated at this stage before this Court.

8. In view of above, learned counsel for applicant has failed to point out any illegality or irregularity in impugned order, thus, instant criminal miscellaneous application is dismissed, alongwith listed application.

While parting, the case law relied by learned counsel for applicant is distinguishable to the facts of instant case and it is also settled principle of law that in criminal administration of justice each case is to be decided on its own peculiar facts and circumstances.

JUDGE