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