2016 PLP 818 (MLD)

ZAFAR AHMED RAJPUT, J.

Through the instant Criminal Misc. Application under subsection (5) of section 497, Cr.P.C., the applicant/complainant seeks cancellation of post-arrest bail, granted to accused/respondent No. 1 Muhammad Fayyaz Khan by the learned IIIrd Additional Sessions Judge Karachi (West) vide order dated 29-09-2014 in case/FIR No.39 of 2014, lodged by the applicant/ complainant on 26-01-2014 under sections 302/34, P.P.C., at Police Station Itehad Town, Karachi.

2. Facts, in brief, leading to the present application are that on 26.01.2014 about 1115 hours, the sister-in-law of the complainant informed him on phone that on that day someone called Muhammad Saeed Khan on telephone and he after some time returned back and told her that there was a "JIRGA" of some people Gulistan-e-Ghazi and he had gone there. Meanwhile, he received a telephone call and he went out from his house; she was watching him while standing at the door of the house. Some people were standing in the street, who were resident of Mohallah and she knew them; among them Haji Aslam and Fayyaz caught hold Muhammad Saeed Khan whereas Riaz and his other brothers and relative committed his murder by firing through fire arms. Upon such information, the complainant reached the place of occurrence and then Abbassi Shaheed Hospital where dead body of his brother was lying in mortuary, which was handed over to him by the police for funeral after completing procedural formalities.

3. After registration of the FIR, the respondent No.1/accused applied for pre-arrest bail vide Bail Application No. 430 of 2014, which was dismissed by the said trial Court vide order dated 15.04.2014. Thereafter, the respondent No.1 filed Criminal Bail Application No. 1224 of 2014 for grant of post-arrest bail, which was allowed on medical ground by the trial Court vide order dated 29.09.2014. Feeling aggrieved, the applicant/complainant has approached this Court through instant application for cancellation of bail.

4. I have heard the learned counsel for the parties and perused the material available on record.

5. Mr. Umar Farooq Khan, the learned counsel for the applicant/ complainant, has mainly contended that the impugned order is illegal as the medical ground taken by the respondent No.1 in his second post-arrest bail application was available to him at the time of filing his first pre-arrest bail application, but the same was not taken by him; therefore, the learned trial Court has erred under the law in granting bail to respondent No.1. He has further contended that the respondent No.1 is serving in Pakistan Navy and he has manipulated medical certificate, issued by PNS Shifa, which does not disclose that his illness is hazardous and dangerous to his life and his treatment is not possible in jail.

6. Conversely, Mr. Fazal-ur-Rehman, the learned counsel for the respondent No.1, has opposed the instant application by submitting that the first bail application filed by the respondent No.1 for pre-arrest bail was dismissed by the trial Court in his absence vide order dated 15.04.2014, on the ground that in her subsequent statement recorded under section 161, Cr.P.C., the widow of deceased has attributed a role to respondent No.1 of making fire upon the deceased; thereafter, the respondent No.1 was arrested by the police on 23.06.2014 and then he filed post-arrest bail application before the trial Court with medical record. He has further contended that the respondent No.1 is a chronic patient of epilepsy and other psychological diseases and his condition started getting worst day by day after obtaining interim pre-arrest bail, which resulted in his hospitalisation and in his absence, his pre-arrest bail was dismissed. But later on, he was admitted to post-arrest bail through impugned order by the trial Court, considering his medical report submitted by the Jail Superintendent, report of Neuro Physician Dr. Amin, and the medical record of PNS Shifa, Karachi. He has also contended that there is no illegality in the impugned order, which is liable to be maintained by this Court. In support of his contention, the learned counsel has relied upon the case of Muzaffar Iqbal v. Muhammad Imran Aziz and others (2004 SCMR 231) and Ghulam Rasool v. Khadim Hussain and others (1991 PCr.LJ 241).

7. Mr. Abdullah Rajput, the learned A.P.G., appearing on behalf of the State, has conceded the arguments advanced by Mr. Fazal-ur-Rehman, the learned counsel for the respondent No.1.

8. I have given due consideration to the arguments advanced by the learned counsel for the parties.

9. Principles governing the grant of bail and the cancellation of bail substantially stand on different footings and there is no compulsion for cancelling the bail unless the bail granted order is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice or where accused is found to be misusing the concession of bail by extending threats or tampering with the prosecution case. Courts have always been slow to cancel bail already granted, as the liberty of a person cannot be curtailed on flimsy grounds. The grounds for cancellation of bail are pari materia with the principles which apply to setting aside the order of acquittal. Once bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation thereof.

10. In the instant case, though the post-arrest bail has been granted to respondent No.1 by the trial Court on medical grounds, yet it appears that in FIR the respondent No.1 and co-accused Haji Muhammad Aslam were attributed the role of catching hold the deceased when co-accused Riaz and others committed his murder by making fire through fire arms. Co-accused Haji Muhammad Aslam has also been extended concession of bail vide order dated 06.03.2014 by the trial Court. But in her subsequent/further statements, recorded by police on 26.02.2014, the sister-in-law of applicant/complainant (the widow of deceased), who is the sole eye-witness of the occurrence as per FIR, has changed her version by stating that the respondent No.1, on the Lalkara of co-accused Haji Muhammad Aslam, had also made fire upon deceased. As such, her further statement does not support the sequence of events taking place in the occurrence.

11. It is an admitted position that the earlier application of respondent No.1 for grant of pre-arrest bail was dismissed by the Court below in his absence, although an application was filed for condonation of his absence along with hospital record of PNS Shifa. As such, the ground of ill health of respondent No.1 for grant of bail was available to him at the time of second bail application, which he filed after his arrest. As per report of Dr. Sabih Ahmed, Lt. Commander of PNS Shifa, submitted by him before the trial Court, the respondent No.1 has headache, dizziness, forgetfulness, nightmares, palpitations, fearfulness and etc. and the trial Court admitted the respondent No.1 after receiving the report of psychiatrist/ Neuro physician Dr. Amir, who had examined the respondent No.1 in the jail, describing his condition as serious.

12. For the foregoing facts and reason, no occasion has been found by this Court for interfering with the lawful exercising of the jurisdiction in the matter of bail granted by the learned trial Court. Under the circumstances, this Criminal Misc. Application for cancellation of bail is dismissed being devoid of merit, along with listed application. HBT/M-29/Sindh Application dismissed.