ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Misc. Appln. No.S-23 of 2009.
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
26.01.2010.
For Katcha Peshi.
Messrs Safdar Ali Bhutto and Altaf Hussain Surahio, advocates for the applicant.
Mr. Ahsan Ahmed Qureshi, advocate for respondents No.2 & 3 and Mr. Habibullah G. Ghori, advocate for respondent No.1.
Mr. Naimatullah Bhurgri, State Counsel.
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Shahid Anwar Bajwa:- F.I.R. No.113/2008 was registered at Police Station Market, Larkana on 30.3.2008, at 0430 hours, for an offence allegedly committed at 0345 hours. Two persons, one Suhrab Ali brother of the applicant/complainant and another Altaf Hussain Brohi, a friend of the deceased, were murdered.
2. It was stated by the complainant that he went to locate his brother at the Otaq of Altaf Hussain Brohi, where he found his brother. He asked his brother to accompany him. At that time four persons duly armed entered the Otaq. One accused Zohaib pointed his pistol towards Suhrab Ali and stated that the latter would not be left alive as he had previously scuffled with him. Saying so he made straight fire at Suhrab Ali. The fire hit his right hand and chest and he fell down. Thereafter, accused Zohaib again fired at Suhrab Ali. Upon this, deceased Altaf Hussain and the complainant challenged the accused. Altaf Hussain tried to catch hold of the accused, upon which the accused Zohaib made straight fires upon him, which hit him on chest and abdomen and he also fell down. Thereafter, the accused persons giving ‘hakals’ fled away from the Otaq. Suhrab Ali and Altaf Hussain succumbed to the injuries. Since in the F.I.R. only Zohaib was named, he was sent up for trial and interim challan was submitted.
3. Learned Counsel for the applicant/complainant submitted that the applicant stated names of other three accused persons (all three being the present three respondents) to police, but the police with malafide intentions did not record their names in the F.I.R. Consequently, the complainant made an application to higher police authorities and investigation was transferred to Crime Branch. On 10.7.2008 further statement of complainant u/s 154, Cr.P.C was recorded. Crime Branch also got recorded statements u/s 164, Cr.P.C of P.Ws Asif and Ghulam Abbas. Thereafter final challan was submitted, in which present respondents No.1, 2 & 3 were shown as absconders. Protective bail was declined by this Court (Circuit Court, at Larkana) on 13.10.2008 and by Bench at Sukkur on 15.10.2008. Pre-arrest interim bail was granted to respondents No.1 & 2 vide order, dated 11.10.2008 and it was confirmed vide order, dated 05.01.2009. Bail after arrest was granted to respondent No.3 vide an other order, dated 05.01.2009. Learned Counsel referred to his statement submitted in this Court on 17.9.2009, with which statement he has enclosed documents from the record of the lower Court, wherein it is alleged that during pendency of interim bail the accused had threatened the complainant that they would kill him. Statements to the same effect were filed on behalf of Ghulam Sarwar and Ghulam Abbas. It is further submitted by the learned Counsel that no counter-affidavit to this statement and affidavits were filed by the respondents in the Court below. Learned Counsel while concluding submitted that the police has conducted dishonest investigation and that is the reason that it had not included the present respondents in the first challan. He further submitted that there are three entry wound injuries on deceased Altaf Hussain and four entry wound injuries on deceased Suhrab Ali and all the four persons are equally involved in the heinous crime of double murder. He, therefore, submitted that not only on the ground of their involvement in the crime but also on the ground of misuse of facility of bail application under Section 497(5), Cr.P.C should be accepted and bail granted to the respondents No.1 to 3 be cancelled. Learned Counsel relied upon Raza Mohsin Qazilbash v. Muhammad Usman Malik (1999 SCMR 1794), Shahzaman v. The State (PLD 1994 S.C 65), and Zulfiqar Ali v. Azizullah (2004 P.Cr.R. 106).
4. Mr. Ahsan Ahmed Qureshi, learned Counsel for respondents No.2 & 3 submitted that F.I.R. was promptly lodged. In the F.I.R., no overt act and firing was attributed to any of the respondents. There is no body description in the F.I.R. or in the 161, Cr.P.C statements of witnesses. Co-accused Zohaib’s statement under Section 164, Cr.P.C was recorded and he confessed his guilt. It was after recording of said statement and after three months of recording of F.I.R. that the complainant, who is a law-graduate and U.C. Nazim, woke up and named the three respondents in letter written to higher authorities. He submitted that the accused and the complainant are neighbourers and are known to each other for umpteen years. Referring to the statements and the affidavits filed by the learned Counsel in the Court below regarding misuse of facility of bail, learned Counsel submitted that firstly no such ground has been taken in this application under Section 497 (5), Cr.P.C and secondly counter-affidavits denying the allegations of misuse of facility of bail have been filed in this Court and no rejoinder has been filed to such affidavits. He further submitted that the complainant party has been repeatedly making adjournment applications in the trial Court. He relied upon Khalid Javed v. The State (2003 SCMR 1419) and Shabbir-ul-Hassan v. Zahid Hussain (2008 MLD 449).
5. Mr. Habibullah G. Ghori, learned advocate for respondent No.1, supported contentions advanced by Mr. Ahsan Ahmed Qureshi.
6. I have considered the submissions made by the learned Counsel and have also gone through the case law, as well as the record.
7. In Raza Mohsin Qazilbash’s case (supra), the facts were that the complainant, who was a practicing advocate, stated that his brother Abid Mohsin was standing outside his house alongwith his friend Hyder Shah. At that time one Raja passed that way in a motorcar with blaring music. Deceased Abid Mohsin told him to drive slowly and to play music at lower volume. Raja and his companions left the scene while giving threats. Sometime later, Raja returned to the place of occurrence in the same car armed with a pistol accompanied by a gunman carrying a pump action gun and another friend of Raja was armed with a baseball bat and yet another friend was armed with a Danda. They stopped the car. Those armed with firearms fired their weapons. Danda and baseball bat blows were also given. Dying declaration was made by the deceased before his mother, in which he implicated co-accused persons. Bail application was dismissed by the trial Court, but bail was allowed by the High Court. Matter was taken to the Supreme Court. Supreme Court noticed that while granting bail what prevailed with the High Court was that the respondent was not named in the F.I.R. and his features and particulars were not indicated in the F.I.R. It was also observed by the High Court that no role, as far as motive for the commission of crime was concerned, was attributed to the applicant. The Supreme Court observed that F.I.R. was lodged through a written application by the complainant, a practicing advocate and at that time victim of attack was struggling for life lying in the operation theatre. The Supreme Court further observed that there was no background of enmity between the first informant and the respondent. The omission of name not only the respondent but others was held to be natural in the circumstances.
8. In Shahzaman’s case (supra), bail was cancelled by the High Court. The facts were that an F.I.R. was registered for offence under Sections 325/34, PPC. It was stated that there were differences between injured and assailants, on account of which exchange of harsh words took place between them on several occasions. Four persons named in the F.I.R. as eyewitnesses had taken the injured to the hospital. Complainant himself was not an eye-witness to the incident, but was informed by another person. F.I.R. was later converted into an F.I.R. under Sections 324/34, PPC after Abdul Zaman succumbed to injuries. It was observed by the Supreme Court that while deciding bail application only tentative assessment is to be made and it is not permissible for the Court deciding bail application to go into the details of the evidence one way or the other because that might prejudice case of one party or the other. Thereafter, the Supreme Court observed as under :-
“5. The third and the most important point upon which bail appears to have been granted by the trial Court is that evidence collected during investigation did not show clearly as to who caused the fatal injury. In this context it was argued before us on behalf of appellants that though eye-witnesses are named in F.I.R., but even then it is not mentioned in F.I.R. as to which appellant was armed with what weapon and caused injury at which place of the deceased and further such omission leaves room for inference that eye-witnesses so named have not seen the incident. Answer to this question is that in the material collected during investigation there is F.I.R. to which reference can be made and perusal of which shows that F.I.R. is dictated by the complainant who is himself not an eye-witness. He gained knowledge of incident from Ashraf and it is not clear whether Ashraf is eye-witness or not but his statement is not recorded by the Investigating Officer and he is not shown in the list of witnesses. Fate of the case heavily depends upon evidence of four eye-witnesses named in F.I.R., who took the injured first to the police station and then to the hospital. These eye-witnesses will be subjected to cross-examination in the trial Court at the stage when their evidence would be recorded. Trial Court would consider each piece of evidence and would make overall appraisement of evidence in order to come to a final conclusion. Meanwhile prosecution has claimed that when injured was brought to the police station, he made a dying declaration in which he had named his assailants. It would be for the trial Court to evaluate this piece of evidence also. At the stage of bail and before recording of evidence in the trial Court, only tentative assessment is to made for the purpose of deciding bail application and it is not permissible to go into the details of the evidence one way or the other because that might prejudice that case of one party or the other.”
9. The third case, which is more to the point, is case of Zulfiqar Ali (supra). It is a case of double murder relating to cancellation of bail. It was pleaded by the complainant that after grant of bail the respondent had misused concession of bail by issuing threats to the applicant in presence of one Ali Gul and such report was lodged at the police station and these allegations were supported by the affidavits of the witnesses. The Hon’ble Bench observed that allegations leveled by the applicant have been prima facie established and, therefore, the respondent No.1 has misused concession of bail and the bail granted to him was cancelled by the High Court.
10. On the other hand, learned Counsel for respondents No.2 & 3 firstly relied upon Khalid Javed’s case (supra), which is in respect of recording of supplementary statement. It is a case which arose out of a criminal appeal against conviction and sentence of death awarded by the Court below. Obviously, the grounds and scope of assessment in a criminal appeal are vastly different than the grounds and scope of assessment in a bail application and, therefore, the case law is clearly distinguishable. However, Shabbir-ul-Hassan’s case relates to cancellation of bail and in that case following observations were made by an Hon’ble Single bench of this Court:-
“It is a settled principle of law that once an accused is admitted to bail, then very strong circumstances need for the purpose of cancellation, of such order of grant of bail, and that the same cannot be directed on the basis of evidence which is yet to be properly appraised by the trial Court itself at the conclusion of the trial.”
11. In the present case, first question that is to be seen is the question relating to misuse of facility of bail. What is more important in an application for cancellation of bail is conduct of the party after bail was granted to it. Has the party misused the facility of bail? Has the party abused the facility of bail? Is the party likely to abscond from Pakistan or outside the control of the surety and thus jump the bail? Has the party hampered investigation or threatened the witnesses or in any other way obstructed the course of justice? These are the grounds and there may be other grounds of the same ilk, which have to be taken into consideration by a Court considering cancellation of bail. In the present case, it is stated in the statements and affidavits filed in the Court below that threats had been given that if the bail is confirmed then the accused persons/present respondents would kill the complainant. This statement was filed on 4.12.2008. On that date at-least, as far as respondent No.3 is concerned, he was behind bars and he could not have in any case given any such threats: at-least, therefore, statement that such threats were given by him when he was behind bar, is not, prima facie, credible. Another fact which cannot be lost sight of is that in the grounds for cancellation of bail although as many as 14 grounds are stated but there is no statement whatsoever that facility of bail granted to the respondents has been misused. Even otherwise, the bail was granted on 5.1.2009 and there is no material whatsoever before this Court or allegations that facility of bail has been misused. Zulfiqar Ali’s case is a case, which turns on its own peculiar facts. In that case it was stated that the report regarding such threats had been lodged with the police. That was a specific step taken by the complainant and it was in view of this step that the Court held that, prima facie, allegations are established. In Shabbir-ul-Hassan’s case settled principle of law has been stated that once a person is admitted to bail, then there must be very strong and exceptional circumstances to deny him that facility of bail and withdraw the concession extended to him.
12. I have deliberately refrained from commenting upon merits of the case, because these have been considered by the trial Court where the trial is pending and trial Court has given reasons for allowing the facility of bail to the present respondents. If trial Court has granted concession of bail on grounds which it considers valid, this Court should be the most reluctant in cancelling the bail unless exceptional circumstances are shown to exist. Paradigms for consideration of cancellation of bail are vastly different than the paradigms for consideration in grant of bail. Consequently, Crl. Misc. Application No.23/2009 is dismissed.
JUDGE