IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Misc. Application No.S-151 of 2020

Applicant: Tasleem Ahmed Mashori, through Syed Jaffar Ali Shah, Advocate.

Respondents No.1 to 4: Mr. Manzoor Hussain A. Ansari, Advocate.

State: Through Mr. Shafi Muhammad Mahar, D.P.G.

Date of hearing: 18.10.2021

Date of decision: 18.10.2021

O R D E R

Zulfiqar Ali Sangi, J: This application has been filed against the order dated 01.11.2019 (impugned herein), passed by learned Additional Sessions Judge, Gambat, whereby post-arrest bail was granted to the Respondents No.1 to 4.

2. Learned Counsel for the Applicant, at the very outset, contended that learned trial Court has not appreciated the material available on record; that incriminating material was available against the accused, which connected the Respondents with the commission of offence; that there is admitted enmity in between the parties; that there is motive for committing murder; that on the application of applicant dead body of the deceased was exhumed and Medical Board in this regard was constituted, after examining the dead body board found some injuries on it, therefore, according to him, ocular evidence is supported by medical evidence. He submitted that bail granting order reflects that there is no cause of death as stated by Doctor; however subsequently board has determined the cause of death, therefore, Respondents were not entitled for grant of bail and their bail granting order may be set-aside and they may be taken into custody.

3. Learned counsel representing the Respondents No.1 to 4 submits that there is delay of two days in registration of FIR, which has not been explained; that as per FIR complainant was present at the time when his son was abducted but he has not chased them and went towards his house and sleep. He further submits that even after recovery of the dead body, he did not lodge FIR on the same day; no any incriminating weapon has been recovered from the possession of Respondents; that the Respondents were rightly bailed out by learned trial Court and the bail granting order does not require any interference by this Court. Lastly, he prayed that application may be dismissed.

4. Learned DPG has opposed the grant of bail on the ground that medical evidence is supported by ocular evidence; that delay has been explained by the applicant; that both PWs has also supported the version of Complainant/Applicant in their statements recorded under Section 161 Cr.P.C; that the offence is heinous in nature; that offence falls within prohibitory clause of Section 497 Cr.P.C.

5. I have heard learned Counsel for the parties and have gone through the material available on record.

6. Record reflects that learned trial Court while granting bail to the Respondents/accused has elaborately mentioned the reasons in penultimate paragraph of the impugned order, which is reproduced as under:-

“Perusal of record shows that there is delay of 2 days in lodgment of FIR. No recovery of weapon etc. is effected from possession of the applicants/accused. The medical officer has not mentioned cause of death in the post mortem report. There are general allegations against the applicants/accused. It is matter of record that father of applicant/accused Shahwal namely Dhani Bux lodged FIR bearing Crime No.42/2019 against brother of the Complainant and the same case is pending in Court of law. It is pertinent to mention that according to the FIR, the applicants/accused abducted son of complainant on the force of weapons in his presence and in presence of witnesses but the Complainant waited for result of offence and after murder of his son, lodged FIR one day after the murder. The incident is unseen and un-witnessed; it seems that the Complainant, after consultation, lodged FIR against his enemies.”

7. It is a settled proposition of law that the grounds for grant of bail are totally different from the ground for cancellation of bail already granted to an accused. The only point required to be considered in the instant cancellation application is that the bail concession is misused or there is apprehension of tampering of evidence by the accused, which both are missing. Learned counsel for the applicant has not been able to point out any illegality, or jurisdictional defect in the bail granting order, therefore, I do not find any good ground/justification to cancel the bail already granted to the accused-respondents by the court of competent jurisdiction, hence application is hereby dismissed.

8. It is, however, clarified that observations made hereinabove are just tentative in nature and strictly confined to the disposal of captioned Miscellaneous applications.

JUDGE

Faisal Mumtaz/PS