2021 C L C 444 (PLP)

IRSHAD ALI SHAH, J.

It is alleged that the private respondent with rest of culprits, after having formed an unlawful assembly and in prosecution of their common object, committed Qatl-e-Amd of Saeed Ahmed, by causing him dagger injuries, for that the present case was registered. On investigation, the private respondent was found to be innocent, consequently, his name was placed in Column No.2 of the charge sheet, he was joined in trial by learned trial Magistrate, subsequently, he was admitted to bail by learned 5th Additional Sessions Judge, Larkana and the same now has been sought to be cancelled by the applicant/complainant by way of instant Criminal Miscellaneous Application under section 497(5), Cr.P.C.

2. It is contended by learned counsel for the applicant/complainant that the private respondent was nominated in the FIR with specific role of causing dagger injury to the deceased, he was let off by the police, on the basis of dishonest investigation and was joined in trial by learned trial Magistrate, therefore, learned trial Judge ought not to have granted bail to the applicant by making irrelevant discussion. By contending so, he sought for cancellation of bail to the private respondent. In support of his contention, he has relied upon cases of Sardar Munir Ahmed Dogar v. The State (2005 Cr.LJ 23) and Ehsan Akbar v. The State and 2 others (2007 SCMR 482).

3. Learned D.P.G for the State and learned counsel for the private respondent by supporting the impugned order have sought for dismissal of instant Criminal Miscellaneous Application by contending that the private respondent has been granted bail by learned trial Judge on point of further enquiry and he has never misused such concession, which may call for its cancellation. In support of their contention, they relied upon unreported order dated 08.11.2010, passed by this Court in Criminal Miscellaneous Application No.S-165 of 2010 (Re: Loung Khan and others v. The State), whereby NBWs issued against the applicants on their joining in trial were quashed with direction to the applicants to join the trial.

4. I have considered the above arguments and perused the record.

5. No doubt, the private respondent is named in the FIR with specific role of causing dagger injury to deceased Saeed Ahmed but there could be made no denial to the fact that he on investigation was found to be innocent by the police, consequently, his name was placed in Column No.2 of the charge sheet. On joining in trial by learned trial Magistrate, the private respondent was granted bail by learned trial Judge on point of further inquiry and such inquiry has yet to commence in shape of trial. The applicant it is said has never misused the concession of bail at trial. The principles for grant and cancellation of bail are totally different. In these circumstances, it would be harsh to recall concession of bail which is granted to the private respondent by learned trial Judge.

6. In case of Meeran Bux v. The State and another (PLD 1989 SC 347), it has been held by the Honourable Apex Court that; "Accused remained on bail for more than one year without abusing the concession in any manner before the bail was cancelled by the High Court

Order of High Court cancelling pre-arrest bail granted to accused was set aside by the Supreme Court in circumstances"

7. The case law which is relied upon by learned counsel for the applicant/complainant is on distinguishable facts and circumstances. In case of Sardar Munir Ahmed Dogar (supra), the accused sought for his release on bail, which was declined. In the instant case, the applicant is seeking cancellation of bail to the private respondent, which is already granted to him. In case of Ehsan Akbar (supra), the bail was granted to the accused by High Court mainly for the reason that there was no recovery of crime weapon from him; it was cancelled by the honourable Supreme Court by making an observation that the ground which weighed with High Court for grant of bail to the accused was not valid. In the instant case, the private respondent on investigation was found to be innocent and his name was placed in Column No.2 of the charge sheet by the police and was joined in trial subsequently by learned trial Magistrate.

8. In view of above, the instant Criminal Miscellaneous Application is dismissed accordingly. JK/W-13/Sindh Application dismissed.