ORDER SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Crl. Misc. Application No.S- 192 of 2012
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DATE |
ORDER WITH SIGNATURE OF JUDGE |
24.01.2014
Mr. Rafique Ahmed K. Abro, advocate for applicant/complainant.
Mr. Ali Raza Pathan, advocate for Respondents No.1 to 3. Respondent No.1& 3 are present in person.
Miss Seema Imtiaz, APG.
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Through instant criminal misc. application filed under section 497 (5), read with Section 561-A, Cr.P.C the applicant/complainant has sought cancellation of bail before arrest which was duly confirmed by the Additional Sessions Judge, Kashmore in Bail Application No.193/2012 vide impugned order dated 22.09.2012 in respect of respondents Mehmood s/o Muhammad Saleh, 2.Ghulam Hussain s/o Muhammad Sachal, and 3.Muhammad Sachal s/o Muhammad Murad.
2. Counsel for the applicant has read out the impugned order passed by learned Additional Sessions Judge, Kashmore and submits that the respondents were not entitled to the grant of bail before arrest as they were specifically nominated in the FIR and it was not a case of their false involvement in the crime by the police. Per learned counsel, cognizable offences punishable up to seven years were reported in the F.I.R, therefore, pre-arrest bail to the respondents and its confirmation by the learned Additional Sessions Judge, Kashmore was not justified in law and facts. It has been prayed that the bail granted to the respondents may be cancelled.
3. Conversely, learned counsel for the respondents submits that the respondents are innocent and were falsely implicated in the crime on account of admitted money transaction between the complainant and respondents. It is further stated that the allegations as contained in the FIR are not supported by any evidence nor any incriminating material has so far been produced before the learned trial Court. It is further contended that even ingredients of Section 310-A, PPC are not attracted under the facts and circumstances of the case. It has been prayed that the respondents are attending the trial Court regularly and have never misused the concession of bail whereas the parameters for seeking cancellation of bail are entirely different from the parameters which are required to be considered for grant of bail. It is prayed that instant application may be dismissed.
4. Learned Assistant Prosecutor General has also opposed the maintainability of instant application which according to learned APG appears to have been filed under section 497 (5), Cr.P.C which according to learned counsel is attracted in case of bail after arrest. However she states that since reference to provisions of Section 561-A, Cr.P.C has also been made, therefore, this Court while exercising inherent powers can entertain such application. It has been stated that the bail before arrest granted to the respondents was confirmed through impugned order passed by the Additional Sessions Judge, Kashmore after examining the contents of the FIR and the material available on record which prima facie does not attract the provisions of sections incorporated in the FIR. It is further stated that since grant of bail before arrest, the respondents are attending the trial Court regularly and have not misused the concession of bail, therefore, no useful purpose will be served by canceling their bail at this stage after passing more than two years. She further states that the parameters for seeking cancellation of bail are different and the learned counsel for the applicant has not pointed out any error in the impugned order which may require any interference of this Court at this stage.
5. I have heard the learned counsel for the parties as well as APG, examined the record and the impugned order passed by Additional Sessions Judge, Kashmore. It will be advantageous to reproduce the findings of the Additional Sessions Judge, Kashmore which reads as follows:-
“ I have given due consideration to the arguments advanced by the counsel for the respective parties and have gone through the material available on record. According to FIR, no any proper date of alleged Jirga has been disclosed by the complainant, therefore, case against applicants/accused falls within the ambit of further enquiry. Word “Badal-e-Sulh” is though not defined in the PPC, yet in the context of S.310-A, PPC, the same is to be construed as giving or accepting something n compensation of right of Qisas and right of Qisas always arises at the time of commission of offence. In the present matter no any person was murdered, therefore, giving two female in lieu of Qisas as compensation requires further enquiry. Even otherwise no any independent witness of the alleged Jirga has been cited as witness. Moreover, the alleged offence is punishable up to seven years and does not fall within the prohibitory clause of Section 497 (1), Cr.P.C. Previous enmity over money matter is admitted in the FIR, therefore, false implication of applicants/accused due to malafide intention and ulterior motive cannot be ruled out.
In view of the above facts and circumstances, applicants/accused have made out their case for pre-arrest bail, therefore, their bail before arrest application is confirmed on the same terms and conditions with direction to appear in the main case till its disposal.”
6. From the perusal of FIR in the instant case the allegations as contained in the F.I.R appear to be vague which prima facie do not attract the provisions of Section 310-A PPC as admittedly there is no exchange of female; there is no explanation of delay in recording the FIR; moreover, the respondents are continuously attending the trial Court and the concession of bail has reportedly been never misused by them. The parameters seeking cancellation of bail are different from the parameters for grants of bail. Learned counsel for the applicant has not been able to point out any error in the impugned order which may require any interference by this Court at this stage. No useful purpose will be served by canceling the bail of the respondents at this stage who are attending the court regularly. In the circumstances, I do not find any substance in the instant criminal misc. application which is accordingly dismissed.
Mr. Ali Raza Pathan, advocate for respondents has filed statement seeking condonation from appearance in Court in respect of applicant Ghulam Hussain who is reportedly a man of advanced age and seriously ill. His non appearanbce is condoned. The respondents are directed to appear before the trial Court regularly without fail.
Judge