IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Criminal Revision Application No.S-07 of 2022

 

 

 

Applicant:                                          Irfan Ali, through M/s. Mehboob Ahmed Soomro and Najam-ul Hassan Soomro, Advocates.

State:                                                 Through Mr. Shafi Muhammad Mahar, Deputy Prosecutor General

Date of hearing:                                 25.03.2022.

Date of decision:                                25.03.2022.

 

 

O R D E R

 

Zulfiqar Ali Sangi, J:            Through instant Cr. Revision Application, the Applicant has assailed the impugned order dated 15.12.2021, passed by learned IVth Additional Sessions Judge, Mirpur Mathelo, in Criminal Misc. Application Case No.01/2021, whereby bail granting order dated 25.10.2021, passed by learned 2nd Judicial Magistrate-II (MTMC) Ghotki, was recalled. 

 

2.                 The allegation against the applicant as per FIR is that he caused lathi blow upon the Complainant which hit him on his head, hence this FIR.

 

3.                 Learned counsel for the applicant, at the very outset, submits that learned trial Court has wrongly assumed the jurisdiction by entertaining the application under Section 497(5) Cr.P.C for cancellation of bail; that learned trial Court has passed the impugned order on the basis of misrepresentation as well as wrong presumptions as strong and exceptional grounds are required for cancelling the same; that the impugned order dated 15.12.2021, whereby bail granting order passed by learned 2nd Judicial Magistrate-II (MTMC) Ghotki was recalled, appears to be illegal and coram non-judice; that there is delay of 38 days in lodgment of FIR, which has not properly been explained by the prosecution; that while passing the impugned order, learned trial Court did not follow the ingredients of Section 497 (5) Cr.P.C, hence impugned order is not sustainable under the law and is liable to be set-aside.    

 

4.                 Learned DPG has supported the impugned order and submits that as per ingredients of Section 497(5), a High Court or Court of Sessions may cause any person, who has been released under Section 497 Cr.P.C to be arrested; moreover, applicant is nominated in FIR with specific role of causing injury, hence learned Additional Sessions Judge has rightly passed the impugned order by cancelling the bail granted to him by learned 2nd Judicial Magistrate, Mirpur Mathelo. 

 

5.                I have heard learned Counsel for the Applicant as well as learned DPG and have gone through the material available on record.

 

6.                The learned Judicial Magistrate-II (MTMC) Ghotki while granting bail to the applicant has observed as under:-

“3.        I have gone through the material available on record and also heard the arguments of learned DDPP for State. Bare perusal of FIR reveals that FIR is registered with delay of about 38 days and previous dispute in between the complainant and the accused is also admitted therein. The allegations upon accused is to house tress pass, use of abusive language and to inflict injuries upon the complainant with lathy and Medico Legal Certificate of the complainant discloses his injury of section 337-Aii, and therefore the applicant / accused is facing trial for offences under sections 452, 337-Aii, 504 PPC. The offence under section 504 PPC is also bailable as per second schedule of the Code of Criminal Procedure, 1898; however offence under section 452, 337-Aii PPC do not fall within the ambit of prohibitory clause of section 497(1) Cr.P.C. and in such like cases the grant of bail is a rule while its refusal is an exception as was reported in Tariq Bashir versus The State, PLD 1995 Supreme Court 34. Besides that the complainant and accused party being relatives, the application of section 452 PPC could be better decided after evidence and therefore is of further enquiry. Leaned counsel for the applicant / accused has submitted statement alongwith CTC of order dated 02.09.2021, passed by Honourable IIIrd Additional Sessions Judge, Mirpur Mathelo, wherein bail of co-accused lmran Ali is confirmed, hence rule of consistency is also applicable upon the present applicant / accused.

 

4.         The applicant/accused has been remanded to judicial custody and no more required for further investigation. Keeping the applicant/accused behind the bars for indefinite period would serve no fruitful purpose and when there is need for further inquiry the applicant/accused cannot be kept behind the bars as a punishment as was observed in P.L.D. 2002 Supreme Court 572 (Ch. Tanveer Khan versus Chairmen NAB and others) and 2011 S.C.M.R. 1405 (Re-Jamshaid Asmat alias Sheedu V/s The state & others).

 

5.         So far as the case law cited by learned counsel for the complainant. With due respect to the principle laid down by the Honourable Apex Courts. I am of the view that the circumstances prevalent in the present case are quite different in view of foregoing discussion from those cases, and therefore, are not applicable.

 

6.         In view of the supra discussion, I am of the opinion that the applicant/accused is entitled to the grant of bail. Therefore, the instant bail application is allowed. The above named applicant/accused is ordered to be released on bail subject to furnishing surety in sum of Rs.50,000/- along with P.R. Bond in the like amount to the satisfaction of this Court”.

 

7.                The learned IV-Additional Session Judge, Mirpur Mathelo while cancelling the bail of applicant has observed in the impugned order as under:-

 

“After hearing learned counsel for parties at length and having gone through case file. I find that the learned II Judicial Magistrate, Mirpur Mathelo had erred in making out that the case of present accused is identical to that of co-accused Imran Ali and rule of consistency applies to the case or Imran Ali but perusal of record reveals that the latter has been assigned specific role of causing injury to the complainant on his head
i.e. vital part of body falling within the ambit of section (337-A(i) PPC, while as per FIR, role of co-accused Imran is of causing injury to P.W. Saleem on head falling within the ambit of section 337-A(i) PPC which is simple in nature and bailable. Delay as explained by learned Counsel for the complainant before court is reasonable. Besides it is settled law that delay is no ground for bail if otherwise the case does not warrant grant of bail under peculiar circumstances on merits. The learned counsel for Complainant has also alleged misuse of concession of bail by the accused and such application/complaint was also filed by the complainant before SSP, Mirpur Mathelo. The case laws on which learned counsel for accused/ respondent has placed reliance, are differentiated from facts and circumstances of the present case.

 

In light of the above discussion, I find that the grounds raised by learned Counsel for the complainant through the instant application are worth consideration. Consequently, bail granted to accused Irfan Ali son of Gul Muhammad Naich by the learned Il-Judicial Magistrate, Mirpur Mathelo vide order dated 25.10.2021 is hereby cancelled”.

 

8.                From the above orders and the perusal of the FIR it appears that the allegation against the applicant in the case is that he caused lathi below to complainant which injury is declared by the doctor as punishable under section 337-A(ii) PPC which provides punishment as Qisas, or arsh, and imprisonment of either description for five years and does not fall within the ambit of section 497(1) Cr.P.C and besides on that ground, on the ground of 38 days delay in registration of FIR which has not been explained by the complainant as well as on the ground of rule of consistency the bail was granted to the applicant by the learned Magistrate. However while cancelling the bail of applicant the IV-Additional Session Judge, Mirpur Mathelo in the impugned order has distinguished the roll of both the accused only on the basis of punishment. However learned IV-Additional Session Judge ignored the principle settled by the Honourable Supreme Court in numerous pronouncements in respect of grant of bail in the cases which fall within the prohibitory clause of section 497 Cr.P.C.

 

9.                 The Honourable Supreme Court in cases of Tariq Bashir v. The State (PLD 1995 SC 34) and Sheikh Abdul Raheem v. The State and another (2021 SCMR 822), held that grant of bail in these cases is a rule and refusal is an exception, however, strong reasons for refusal are required. Subsequently the Honourable Supreme Court in the case of Muhammad Imran v. The State (PLD 2021 SC 903), has categorically settled the grounds for the case to fall within the exceptions meriting denial of bail as (a) the likelihood of the petitioner’s abscondence to escape trial; (b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or (c) his repeating the offence keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offence alleged. Apparently there appears no ground to bring the case of applicant in the exceptions for refusal of the bail as settled by the Supreme Court. Further the Honourable Supreme Court in the case of Muhammad Tanveer v. The State and another (PLD 2017 SC 733)  has held that “Once this court has held in categorical terms that grant of bail in offences not falling within the prohibitory limb of section 497 Cr.P.C shall be a rule and refusal shall be an exception then the courts of the country  shall  follow this principle in its’ letter and spirit because principles of law  enunciated by this court are constitutionally binding on all courts throughout  the country including the Special Tribunals and Special Courts.”  Further the said principle has been affirmed by the Honourable Supreme Court in the case of Abdul Saboor v. The State and another (2022 SCMR 592).

 

10.              The consideration for the grant of bail and for cancellation of the same are altogether different. Once the bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation thereof. To deprive a person on post arrest bail of the liberty is a most serious step to be taken. There is no legal compulsion to cancel the bail of the accused who allegedly has committed crime punishable with death, imprisonment for life or imprisonment for ten years as has been held by the Honourable Supreme Court in case of Tariq Bashir and 05 others v. The State (PLD 1995 SC 34). Ordinarily the superior courts are hesitant to interfere into the order extending concession of bail; rather they have shown reluctance to intervene in such like matters. The intent behind is that once concession of bail is granted by a court of competent jurisdiction then very strong and exceptional grounds would be required to hamper with the concession extended to an accused who is otherwise clothed with free life, as a consequent of concession and if any view taken by the court it would be synonymous to curtailing the liberty of said accused prior to completion of trial, which otherwise is a precious right guaranteed under the Constitution of our country. The Honourable Supreme Court in case of Sami Ullah and another v. Laiq Zada and others (2020 SCMR 1115), Sharif Khan v. The State and another (2021 SCMR 87) and Zafar Iqbal, Mazahar Hussain and Muhammad Saleh v. The State and others (2021 SCMR 1909) approved and settled the principles for cancellation of bail which are reproduced as under: -

i)          If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice.

ii)          That the accused has misused the concession of bail in any manner.

iii)         That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses.

iv)         That there is likelihood of absconsion of the accused beyond the jurisdiction of court.

v)         That the accused has attempted to interfere with the smooth course of investigation.

vi)         That accused misused his liberty while indulging into similar offence.

vii)        That some fresh facts and material has been collected during the course of investigation which tends to establish guilt of the accused.

 

11.              I have gone through the memo of application for cancellation of bail filed before the trial court where besides other grounds (which are discussed in bail granting order), in para No.12 it is mentioned that the accused had issued threats to complainant after his release on bail. It is observed that ordinarily where the accused after release on bail misuses the same, interferes in the proceedings of the trial, extends threats to the witnesses or creates any sort of hindrance in conclusion of the trial, the Court granting bail can cancel the same on the basis of evidence before him by exercising jurisdiction under section 497(5), Cr.P.C., but if the bail granting order is without jurisdiction and without observing the mandatory provision of law or authorities of the Superior Courts then the same can be challenged before the courts having jurisdiction conferred by section 497 (5) Cr.P.C. The section 497 (5) is very much clear in this respect where it is mentioned that “A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.” The bail granting order dated: 25-10-2021 passed by the Judicial Magistrate-II (MCTC) Ghotki is carefully perused and the same found in accordance with the settled principles of law and the same was passed by following the dicta laid down by the Honourable Supreme Court in cases of Tariq Bashir v. The State (PLD 1995 SC 34), Sheikh Abdul Raheem v. The State and another (2021 SCMR 822), and Muhammad Tanveer v. The State and another (PLD 2017 SC 733), further followed by the Honourable Supreme Court in cases of Muhammad Imran and Abdul Saboor (supra). However, the order dated: 15-12-2021 passed by IV-Additional Session Judge, Mirpur Mathelo wherein bail granting order was set-aside and bail was cancelled, is not in accordance with the principles settled by the Honourable Supreme Court of Pakistan hence the same is set-aside by maintaining the order of learned Judicial Magistrate-II (MTMC) Ghotki.

 

12.              The above Cr. Revision application is allowed in the above terms.

 

J U D G E