2001 P Cr (PLP)

Muhammad Azeem Panhwar for the State. Date of hearing: 17th January, 2001. This application under section 497(5), Cr.P.C. has been filed on behalf of applicant Mst. Rahiman, seeking cancellation of the bail granted to respondent Mohsin Ali in Criminal Bail Application No.619 of 1998 (Hyderabad), on 16‑2‑1999, by Mr. Justice Amanullah Abbasi, (as he then was) on the ground of statutory delay. The facts in brief are that on 5‑8‑1996 at 23‑00 hours a report under sections 302/201, P.P.C. was lodged at Police Station Loonikot, District Thatta, by complainant Qurban Ali Magsi, S.I.P./S.H.O. of the said Police Station on behalf of the State. It was alleged in the F.I.R. by the complainant that he received information that one car whose colour and number could not be ascertained came from Hyderabad side and went towards jungle and after sometime again the said car went back towards Hyderabad Tool Plaza. The complainant alleged to have tracked the tyre marks of the car and at some distance he saw dead body of one person lying on the ground whose eves were closed. There was hole on his chest and blood was oozing out. There were some black marks on the neck of dead body. The complainant firstly sent the dead body to L.M.C.H. Jamshoro and thereafter, returned to police station, where he lodged a report against unknown assailant for committing the said offence. Respondent/accused Mohsin Ali Siddiqui was arrested on 11‑9‑1996 and he was produced before S.D.M., Thatta for judicial confession on 12‑9‑1996. It is alleged that in his confessional statement as well as in his statement under section 161, Cr.P.C. he admitted that he had a licensed pistol which was picked up by the deceased who had come to meet him and due to a mistake while the accused was trying to take out the stuck up bullet from the chamber of the pistol, the pistol went on and hit on the back of deceased Sanaullah who died then and there. Thereafter the accused removed the dead body of the deceased after borrowing a car from his friend and threw the same in the jungle. Accused was sent up for trial after submission of his challan. His bail application on merits was rejected by the trial Court and thereafter by this Court. However, after completion of the statutory period of two years from the date of his arrest, the accused applied for bail which was rejected on 24‑9‑1998 by the trial Court. Thereafter, his Bail Application No. 1258 of 1998 was heard by Mr. Justice Amanullah Abbasi, J. on 16‑2‑1999 and on the ground of statutory delay, bail was granted to the applicant in the sum of Rs.2,00,000 and P.R. Bond in the like amount. It is against the said order that applicant Mst. Rahiman who is mother of the deceased Sanaullah has filed this application for cancellation of bail. I have heard Mr. Hidayatullah Abbasi, Advocate for the applicant, Mr. Qurban Ali Chohan, Advocate for accused Mohsin Ali and Mr. Muhammad Azeem Panhwar, counsel for the State. It has been mainly contended by the learned counsel for the applicant that before granting the bail to the accused on 16‑2‑1999, the complainant was not heard and that she was also not impleaded as a party in that bail application, hence the order passed is against the law and corum non judice. It has beers further argued that after release on bail accused celebrated his release by taking out a procession with drums and "Shahnais"' in front of the house of the applicant and also issued threats to the applicant. An affidavit has been filed in support of the application. The learned counsel for the applicant has, therefore, prayed that the bail granted to the accused be recalled and he should be remanded o custody. In support of his contention that applicant should have been heard by this Court before passing any order on bail application and that she should have been impleaded as a party in the bail application, the learned counsel has relied upon the case of Faqirullah v Khaliluzzaman and others 1999 SCMR 2203. So far the ground of threats is concerned, the learned counsel has placed reliance upon the case of Hyder Ali v. Nasir Khan alias Gudoo 1999 MLD 2185 He has further contended that the accused is a desperate and dangerous person within the meaning of proviso IV to section 497, Cr.P.C. In rebuttal, Mr. Qurban Ali Chohan, the learned counsel for the respondent has argued that in fact it is a blind murder and there is no eye witness of the incident. Even if the judicial confession is considered to be true, correct and voluntary, it being the only piece of evidence against the applicant, is to be believed or rejected as a whole. If it is believed then a case under section 302, P.P.C. does not stand made out and at the most it will be a case of an accident and screening of the evidence. He has further argued that in his counter‑affidavit accused Mohsin Ali has denied the allegations regarding taking out of the procession or issuing any threats. He has further stated that house of the applicant is situated in old University Campus which is a thickly‑populated area. Had there been any such thing, at least somebody would have been cited as a witness of taking out the procession or issuance of the alleged threats. He has also submitted that accused was arrested on 11‑9‑1996 and he was granted bail on 16‑2‑1999 after 47 months of his arrest. The jail and the police reports do not show that accused is a desperate or dangerous person, a hardened criminal, or a previous convict so as to bring his case within the ambit of proviso IV to section 497, Cr.P.C. He has, therefore, prayed that no case for cancellation of bail has been made out. Mr. Muhammad Azeem Panhwar, learned State Counsel has supported the order, dated 16‑2‑1999 and he has further stated that there is no proof regarding the misuse of the concession of the bail by the accused which was granted about 2 years back on the ground of statutory delay after considering the relevant aspects of the case. He has further argued that either the applicant should have been vigilant enough to pursue her case at the relevant time, or should have gone to Supreme Court for cancellation of bail. The learned State Counsel has further argued that in view of Chapter XXXVIII of the Code of Criminal Procedure, 1898, it is the prosecution which has to conduct a case and to plead on behalf of the State. However, under section 495, Cr.P.C. the Court may permit any other person to conduct the prosecution. In fact the Courts are liberally permitting the private counsel to put up the case on behalf of the complainant and heirs of deceased in such type of cases, but nobody came forward to oppose the bail at that stage. I have considered the arguments of the learned counsel for the parties and gone through record as well as the case‑law cited by the learned Advocates in support of their respective contentions. The principles for cancellation of bail are somewhat different from the principles for grant of bail: Bail was granted to the accused only on the ground of statutory delay. As held in PI ‑D 1995 SC 49, bail on the ground of statutory delay is a right of an accused, however, subject to the bar contained in proviso (iv) to section 497(1), Cr.P.C. In this case there is no material to hold that the accused is a dangerous, desperate or hardened criminal or a previous convict or a terrorist. The allegation that the applicant took out a procession to celebrate his release on bail, or that has issued threats to the applicant, is simply on allegations and it has been denied by the accused on oath. There is nothing on record to substantiate these allegations of the applicant. I agree with the State Counsel that the applicant should have been vigilant enough and should have kept an eye over the proceedings in Court, if she was having interest in the same. Courts are not expected to issue notice to the complainant or the legal heirs to come and contest the proceedings. The facts of the cases cited by the learned counsel for the applicant in support of his contentions are different from the facts of the case in hand. In criminal cases each of the case is to be considered and decided on its own merits. Under the circumstances, I do not find any force in this application which is rejected accordingly. The trial Court is directed to make efforts to proceed with the case without any unreasonable delay. N.H.Q./R‑34/K Petition dismissed.