ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Misc. Application No. 206 of 2013

                                                                                                                                                            Date                                         Order with Signature of the Judge                                   

FOR KATCHA PESHI.

 

13th November, 2013.

Mr. Habib Ahmed, Advocate a/w Applicant.

Mr. Rajal  Das Baltistani, Advocate respondent No. 1.

Mr. Abdullah Rajput, A.P.G, Sindh.

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SYED MUHAMMAD FAROOQ SHAH, J.:-   Through captioned application under section 497(5) Cr.P.C. the applicant has sought cancellation of bail granted to respondent No. 1 in Crime No. 437/2012,  under section 302, 114, 120-B and 34 PPC, registered with PS Darakhshan, Karachi, vide order dated 25.7.2013, passed by learned Incharge Sessions Judge South-Karachi.

 

2.                 Heard the contentions advanced by both learned counsel, representing the parties and learned Assistant Prosecutor General, Sindh as well. Record has also been perused.

 

3.                 The relevant facts as narrated in the FIR lodged by SIP Mehmood Ahmed are that he found a dead body of a male person aged about 45/50 years wrapped in cloth with plastic cover, which was shifted to hospital for autopsy and thereafter handed over to the Edhi Home, Sohrab Goth. The death was found due to bullet injuries hence during investigation the respondent No. 1 and co-accused were arrested on 12.10.2012 and on completion of investigation they were charge sheeted on 30.11.2012. At the trial charge has been framed and it is averred that prosecution have examined two PWs.

 

4.                 From perusal of the record it appears that the respondent No. 1 was involved in this case after when co-accused Akbar in his statement under section 164 Cr.P.C. involved him in commission of offence.   It is also alleged that the firearm weapon was recovered from co-accused Akbar Dhedhi and Vehicle used in the commission of offence was belonged to him and the house where the incident allegedly took place was in occupation of co-accused, who has been granted bail. Co-accused Muazzam and Fazal Ahmed have also been granted bail.

 

5.                 Mr. Habib Ahmed at the very outset contended that PWs Tahir and Imran identified the respondent No.1/accused before the Magistrate and there is no reason to discard the confessional statement of co-accused Akbar who has fully implicated the present accused/respondent No. 1 in commission of offence.               

 

6.                 The learned Sessions Judge in penultimate para of impugned bail order, observed and held that:

 

“ The record shows that co-accused Syed Moazzam Hamid was admitted to bail by this court vide order dated 28.5.2013. The bail application of co-accused Fazal Ahmed Samtio was rejected by this court whereafter bail application was moved before the Honourable Sindh High Court Karachi. His lordship Mr. Justice Ghulam Sarwar Korai vide order dated 6.5.2013 has granted bail to accused Fazal Ahmed Samtio. As pointed out by learned counsel for complainant that deceased was last seen in the vehicle with applicant/accused. Such last seen evidence requires corroboration through PWs Tahir & Imran at the evidence, thus it is a case of further inquiry. As pointed out by learned counsel for complainant that co-accused Akbar who has been admitted to pre-arrest bail his 164 Criminal Procedure Code statement was recorded. Such statement requires further inquiry as to whether it is inculpatory confession or statement of pardoned accused. As contended by learned counsel for complainant that vehicle of co-accused Akbar was used in the crime but admitted fact is that he has been admitted to interim pre-arrest bail. As pointed out by learned counsel for complainant that applicant/accused was identified by PWs Imran and Tahir before learned Magistrate. This contention requires further inquiry as to whether applicant/accused in league with other co-accused did commit the murder of deceased and what was the motive behind it I am of the humble opinion that case of applicant/accused is at par with balied out accused Moazzam & Fazal Ahmed Samtio. I therefore grant bail to appellant/accused subject to furnishing of surety in the sum of Rs. 2,00,000/- (two lacs) and PR bond I the like amount.”

 

7.                 It is settled that bail can only be cancelled if bail granting order appears to be perverse and gross illegality has been done, reliance in this respect may be placed on Apex Court’s ruling reported in the case of MUHAMMAD ANEES V/S ABDUL QAYUM @ KALLA KHAN (2013 YLR 720). In the case of GHULAM RASOOL V/S KHADIM HUSSAIN & 5 OTHERS (2004 SCR 209), it has been held that provisions of subsection (5) of section 497 Cr.P.C. are not punitive in nature and there is no compulsion for cancelling the bail unless the order of bail is patently illegal, erroneous and factually incorrect and has resulted in miscarriage of justice or where the accused/respondents were found to be making efforts to misuse the concession of bail by extending threats or tempering with prosecution case.

 

8.                 In the case titled as MUZAFFAR IQBAL V/S MUHAMMAD  IMRAN AZIZ & OTHERS (2004 SCMR 231) relevant para 3, the Hon’ble Apex court has held that section 497(5) Cr.P.C. does not command the court to cancel the bail even when the offence is punishable with death or imprisonment for life and even if grant of bail is prohibited under section 497(1) Cr.P.C., the discretion is left in the court under section 497(5) Cr.P.C. which is para materia  with the principles which applied to setting aside of the orders of acquittal. Reliance in this respect is being placed on the case of  MIAN DAD V/S THE STATE (1992 SCMR 1289). Reliance in this context may also conveniently be placed on the cases reported as MUHAMMAD ABID V/S THE STATE (2012 SCMR 1691) and EHSAN AKBAR V/S THE STATE & 2 OTHERS (2007 SCMR 482). In the case title as MUHAMMAD ANEES V/S QAYUM (2013 YLR 720) , Supreme Court (AJ&K) has been pleased to observe at para No. 7, that in a case where the trial is in progress, this court is always very slow in interfering with the order. If in a case, the trial is in progress and a number of prosecution witnesses have been examined and few are left to be examined, it would not be appropriate to send the accused behind the bars as it would not serve any useful purpose, specially so when there is no allegation of misuse of concession of bail granted to the accused.

 

9.                 In view of whatever mentioned above, particularly in the light of case law of Apex Court mentioned herein above, it is not a fit case for cancellation of bail as strong and exceptional grounds are needed to get it cancelled under section 497(5) Cr.P.C.

 

10.               In the light of forgoing discussion, the captioned application being devoid of merits is dismissed.

 

11.               It needs not to iterate that the observation made hereinabove is tentative in nature, shall not affect the merits of the case.

 

 

 

 

*Aamir/PS*                                                                                             J U D G E