2017 PLP 450 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned miscellaneous application, applicant Shamsuddin Kalhoro has impugned order dated 20.06.2014, passed by the Court of learned 1st Additional Sessions Judge, Sukkur, whereby respondents Nos.2 to 5 were granted bail by the learned trial Court.

2. Necessary facts spelt out from instant application are that applicant Shamsuddin lodged FIR No.43/2013 on 01.07.2013 at about 1330 hours at Police Station, Baiji Sharif regarding incident occurred on 01.07.2013 at 0800 hours. The averments of FIR are reproduced as under:- "That my daughter Mst. Safia was married with Shahzeb, step-son of Ameer Bux, and was residing with him in the same house. Today, I along with my son Hakim and cousin Azeem, was standing near the house of Ameer Bux. At about 08.00 a.m., we heard cries of Mst. Safia from her house, and rushed there and saw that accused Ameer Bux, Mst. Samina, Rahib, Qamruddin, Sahib Din and Shahzeb, had forced down Mst. Safia on the ground and Mst. Samina was sitting over the chest of my daughter and she was forcibly administering agriculture pesticide to her with intention of murder and she was trembling. We entreated the accused not to do such cruel act and they fled away along with pesticide. My daughter was unconscious and frothing. We shifted her to Civil Hospital, hence instant FIR."

3. Learned counsel for applicant contended that a young lady aged about 22 years was murdered by the respondents Nos.2 to 5 in company of co-accused Mst. Samina and Shahzeb; that per medical report poisonous substance was administered to the deceased, which is sufficient to prove the common intention for murder; that accused were available at the spot and participated in the commission of alleged offence, hence common intention is spelt out from their act; that learned trial Court has not passed a proper order while granting bail to respondents Nos.2 to 5, which is liable to be cancelled.

4. While controverting the above submissions, learned counsel for respondents Nos.2 to 5 contended that learned trial Court has properly discussed the averments of FIR as well as merits of the case; that main allegations have been leveled against co-accused Mst. Samina, who is absconding and there are general allegations against the respondents, which require serious consideration; that respondents have not misused the concession of bail; hence instant application for cancellation of bail is liable to be dismissed. Learned counsel relied on 2009 SCMR 1202, 2010 PCr.LJ 783, 2010 MLD 1530, 2000 PCr.LJ 716, 2008 PCr.LJ 1565 and 2008 YLR 330.

5. Learned APG supported the impugned order passed by learned trial Court and adopted the arguments advanced by the counsel for respondents and further contended that main role has been assigned to Mst. Samina, and no specific roles have been assigned to the respondents.

6. Heard the arguments advanced by learned counsel for the parties and perused the material available on record, which reflects that Mst. Safia daughter of applicant was married with accused Shahzeb and she was residing in the house of her husband which is not adjacent to the house of complainant. It is significant to mention that when complainant and his witnesses entered into the house of accused, they noticed that Mst. Safia was forcibly got down by six nominated accused persons and Mst. Samina was sitting on her chest and administering her poisonous substance forcibly, while no specific roles have been assigned to the respondents regarding the commission of alleged offence. It is also worthwhile to mention that on the same date and time FIRs Nos.43/2015 and 45/2015 were lodged at 0800 hours by both the parties against each other with similar allegations of administering poisonous substance to different ladies namely Mst. Safia and Mst. Faiza respectively, however, FIR No. 45/2013 was disposed in "C" Class. During investigation, Investigating Officer visited place of wardat but neither the bottle of poisonous substance nor any other incriminating articles was recovered. No dying declaration of deceased was recorded by Medical Officer, while she expired in hospital during treatment on 02.07.2013 and per post mortem report no marks of violence were available at her neck. Indeed, charge has been framed in the year 2014, but since then complainant has not produced any witness to substantiate the allegations leveled against the accused, and prosecution has examined Investigating Officer only before the trial Court despite issuance of notices for procuring the attendance of witnesses. The demeanor of complainant reflects that he is not interested for early disposal of the case and he only wants to drag accused party in litigation. Moreover, applicant has failed to point out any tangible evidence which was not considered by the trial Court while passing impugned order.

7. It is well settled that mere nomination of accused with general allegations in wake of admitted animosity would not debarred or prohibited him to avail concession of bail if he deserved for such relief on merits. Bare perusal of impugned emanates that learned trial Court has granted bail to respondents strictly on merits and no miscarriage of justice or injustice has been committed by the Court while enlarging respondents on bail, thus in absence any sound and reasonable grounds, bail granted on merits could not be interfered with mere on the wish and whim of the complainant. After enlargement on bail by the learned trial Court, respondents have been facing their trial regularly and they neither misused the concession of bail nor frustrated the trial by using delaying tactics, thus no case for cancellation bail under section 497(5), Cr.P.C. is made out.

8. Considering the facts and circumstances referred supra, applicant has failed to point any illegality or infirmity committed by the Court of learned 1st Additional Sessions Judge, Sukkur, while passing impugned order dated 20.06.2014. Consequently, impugned order does not call for any interference by this Court, hence same stands maintained, and instant miscellaneous application is dismissed being devoid of legal substance. JK/S-3/Sindh Petition dismissed.