2016 MLD 99

2016 M L D 99

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD IBRAHIM—Applicant

Versus

Mst. RASHEEDA and another—Respondents

Cr. Misc. A. Nos.377 of 2014 and 35 of 2015, decided on 26th May, 2015.

Criminal Procedure Code (V of 1898)—

—-S. 497(5)—Penal Code (XLV of 1860), Ss.364, 380, 506, 337-A(i) & 34—Kidnapping or abducting in order to murder, theft in dwelling house, criminal intimidation, causing Shajjah-i-Khafifah, common intention—Applications for cancellation of bail—Statement of the injured, was recorded after 24 days of the incident, and no explanation had been furnished for such delay—Prosecution story was doubtful and there were also other discrepancies therein—Considerations for cancellation of bail were different from the grounds for grant of bail—Bail granted by a court of competent jurisdiction could only be cancelled if the bail granting order had been passed in capricious manner, either without assigning reasons, or on the basis of perverse or invalid reasons; if accused attempted to tamper with the evidence, or hampered the investigation; if accused committed or attempted to commit the same offence; if accused absconded after grant of bail; if the bail granting order was patently illegal, erroneous, factually incorrect, and had resulted in miscarriage of justice—Applicant/complainant, in the present case, could not point out any such legal flaws in the impugned order, or any circumstance, which could justify the cancellation of bail, granted to accused—Mere verbal assertion of the complainant that accused, were misusing the concession of bail and that after release accused persons were extending threats to the complainant party and the witnesses, was not enough, but for establishing such plea, strong and tangible material must be produced by the complainant—-Applications for cancellation of bail being without merit, were dismissed, in circumstances.

2004 SCMR 1160; 2004 SCMR 231; 2004 PCr.LJ 1447; 2008 PCr.LJ 1565; 2008 PCr.LJ 514 and 2006 PCr.LJ 252 ref.

Javed Iqbal Malik for the Applicant.

Dur Mohammad for Respondents.

Mohammad Saleem Akhtar, A.P.G. for the State.

Date of hearing: 22nd May, 2015.

ORDER

AFTAB AHMED GORAR, J.—By this single order I propose to dispose of abovesaid two Cr. Misc. Applications filed under section 497(5), Cr.P.C. as both the cases arise out of one and the same F.I.R. The applicant complainant Mohammad Ibrahim in both the cases has prayed for setting aside of orders dated 06.11.2014 and 06.01.2015 whereby Mst.Rasheeda, respondent in Cr. M.A. No.377/2014, and Saifal and Ali Mohammad respondents in Cr. M.A. No.35/2015, respectively were granted post arrest bail.

Brief facts of the case, giving rise to the filing of instant Cr. Misc. Applications are that on 25.02.2014 complainant Mohammad Ibrahim lodged FIR No.129/2014 at P.S. Korangi Industrial Area for offences under sections 364/380/506-B/337-A(i)/34, P.P.C. alleging therein that on 01.02.2014 he went to his duties and on receiving a telephonic call from Jinnah Hospital that his wife Mir Zadi was admitted in hospital, he reached there where his wife disclosed that his second wife Mst. Rasheeda, her mother Mst. Naazan, Ali Mohammad and Saifal came in a car when she was standing alongwith her son Abdul Ghafoor aged about 8 years at Saturday Bazar, Sector 6-D, Mehran Town. The accused hit something on her head whereupon she became injured and the culprits kidnapped her son Abdul Ghafoor. She further stated that accused Saifal had extended threat to her. It was further stated that about one and a half month back complainant had got Rs.5,00,000/- by selling his land for the purpose of purchasing a house but the accused after administering intoxication drug in tea to his wife committed theft of Rs.5,00,000/- and gold ornaments weighing about three tolas. It appears that complainant had moved an application before the learned Sessions Judge, Karachi East and on the basis of his orders, police registered the abovesaid case.

The respondents/accused moved application for grant of post-arrest bail and vide aforesaid two orders they were admitted to bail, hence these Cr.Misc. Applications for cancellation of bail.

Learned counsel for the applicant/complainant contended that the impugned orders are illegal and unlawful and the same are liable to be set aside. He further contended that the accused are involved in heinous crime of kidnapping of minor and most of the offences are punishable with imprisonment of 7/10 years. He further contended that after grant of bail, the accused persons have been extending threats to the complainant party, as such they are misusing the concession of bail and in the circumstances, the witnesses of the case have great apprehension at the hands of the accused persons. He lastly prayed for setting aside the impugned orders and cancelling the bail granted to the respondents/ accused.

Conversely, learned counsel for the respondents contended that the trial Court while granting bail to the accused/respondents has discussed each and every point involved in the case and thereafter speaking and well-reasoned orders have been passed which require no interference by this Court. He further contended that considerations for cancellation of bail are different from the considerations for grant of bail and in the absence of strong and exceptional grounds warranting interference, bail granted to the accused cannot be canceled which grounds are not available in the instant case. He prayed for dismissal of Cr. Misc. Applications.

Learned A.P.G., while adopting the arguments advanced by the learned counsel for the respondents supported the impugned orders and contended that the Cr. Misc. Applications are liable to be dismissed.

I have heard the arguments advanced by the learned counsel for the parties and perused the material available on the record.

From the perusal of the material available on the record it transpires that the injured lady, Mst.Ameer Zadi, was brought at the hospital on 02.01.2014 where she was medically treated, however in the F.I.R. the date of incident has been shown as 01.02.2014. This creates serious doubts because if the incident, as alleged in the F.I.R., took place on 1st February, 2014, then how the injured was taken to hospital about one month prior to the date of incident. One may think that there might be a human error in writing the date and the concerned staff of the hospital might have wrongly written the date as “2/01/14” instead of “01/02/14” but this does appeal to mind that one would commit such mistake four times as in the medical certificate date of arrival being 02/01/14 has been shown at four different places. Besides, the certificate shows that the injured lady had a lacerated wound 2.7 cm x 0.3 cm, however bone was not exposed over left perital region of skull and the injury was declared as “Shujjah-i-Khafifah” in nature having been inflicted by sharp edged weapon, however, in the FIR there is no mention of any sharp edged weapon having been used for inflicting the injury. The Statement of the injured Ameer Zadi is said to have been recorded on 25-2-2014 i.e. after 24 days of the incident but no explanation has been furnished for such delay. Besides, it is also mentioned in the police papers that on 02.01.2014 the injured was brought at the hospital by the complainant which belies the statement of the complainant that on 01.02.2014 after receiving a telephonic call from the hospital he reached there where his wife was admitted. It is also worthwhile to point out that although in the FIR the complainant has also alleged that about one and a half month back he had got Rs.5,00,000/- by selling his land for the purpose of purchasing a house but the accused after administering intoxication drug in tea to his wife committed theft of Rs.5,00,000/- and gold ornaments weighing about three tolas, but he has miserably failed to explain as to why he did not lodge FIR one and a half month ago in relation to such incident. This also casts serious doubts on the prosecution story. There are also other discrepancies which, for the sake of brevity, are not mentioned here as it may prejudice the case of applicant/complainant.

Apart from the merits of the case, it may be observed that the considerations for cancellation of bail are different from the grounds for grant of bail and the bail granted by a court of competent jurisdiction can only be cancelled in exceptional circumstances, which may be summarized as under:–

(i) if the bail granting order has been passed in capricious manner either without assigning reasons, or on the basis of perverse or invalid reasons;

(ii) if the accused attempts to tamper with the evidence or if he hampers the investigation;

(iii) if the accused commits or attempts to commit same offence;

(iv) if the accused absconds after grant of bail;

(v) if the bail granting order is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice;

For above legal proposition, reference could be made to the pronouncements of superior courts reported in 2004 SCMR 1160, 2004 SCMR 231, 2004 PCr.LJ 1447, 2008 PCr.LJ 1565, 2008 PCr.LJ 514 and 2006 PCr.LJ 252.

The learned counsel for the applicant/complainant could not point any such legal flaw in the impugned orders or any such circumstance which could justify the cancellation of bail granted to the respondents/accused. So far as the assertion of the complainant that the accused are misusing the concession of bail, inasmuch after release they are extending threats to the complainant party and the witnesses of the case have great apprehension at the hands of the accused persons is concerned, mere verbal assertion in this respect is not enough but for establishing such plea, strong and tangible material must be produced by the complainant which is lacking in the instant case.

The upshot of above discussion is that the Cr. Misc. Applications, being without merits, are dismissed in limine.

HBT/M-58/Sindh Application dismissed.

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