2025 PLP 1946 (YLR)

Nisar Ahmed BhanbHro, J.

Through the instant Application filed under Section 497(5) of the Code of Criminal Procedure, the applicant Deedar Ali seeks indulgence of this Court to cancel the bail granted to accused Attaullah, Fareed alias Ghulam Fareed and Piyar Ali alias Piyaral by the Court of Learned Additional Sessions Judge, Kashmore (the Trial Court) vide orders dated 26.06.2024 and 04.11.2024 (the impugned orders) in crime No 40 of year 2024 for offences punishable under Sections 365-B,452,337-H2,494,506/ 2, 147, 148, 149 P.P.C. of Police Station Buxapur District Kashmore.

2. Per prosecution story set out in the FIR, it is alleged by the Complainant Deedar Ali that on 07.05.2024 at about 1630 hours the accused namely1) Fahmeed son of Ali Akber having TT pistol, 2) Muhammad Ismail, 3) Ali Akbar both sons of Shadi Khan, 4) Attaullah, 5) Fareed both sons of Bahadur having guns, 6) Barkat son of Loung having TT Pistol, 7) Lashar son of Sachlo, 8) Mast Ali, 9) Piyar Ali both sons of Mir Khan having KK all by caste Golo and three unidentified accused entered into the house of complainant and shouted that the complainant party had refused the proposal for marriage of Shahla therefore they would abduct her. The accused persons namely Fahmeed and Mohammed Ismail dragged daughter of complainant Afia Naz aged about 18 years, and accused Barkat Ali and Ali Akber dragged niece of Complainant Mst. Shehla, aged about 12/13 years with intention to abduct and solemnize marriage with them. The complainant party resisted abduction but could not succeed as the accused persons resorted to aerial firing and threatened to kill them. Complainant alleged that his daughter Afia Naz was already married with one Sukhan Ali Golo and having pregnancy of six months. The investigation followed and a report under section 173 Cr.P.C filed before the Court of concerned Magistrate.

3. After registration of FIR the accused / Respondents Nos. 1 to 3 surrendered before the Court of Learned District and Sessions Judge, Kashmore at Kandhkot seeking pre arrest bail. The applications of the Accused/Respondents Nos. 1 to 3 were assigned to the Court of Learned Additional Sessions Judge, Kashmore (the Trial Court) for disposal in accordance with law. The Trial Court after hearing parties through their Learned Counsel granted pre arrest bail to the Respondents Nos. 1 and 2 vide order dated 26.06.2024 in Criminal Bail Application No 423 of 2024 and to the Respondent No 3 vide order dated 04.11.2024 in Criminal Bail Application No. 954 of 2024.

4. Mr. Ashfaq Hussain Abro Learned Counsel for the Applicant / Complainant contended that the Trial Court granted pre arrest bail to the Respondents No. 1 to 3 in contravention to the settled principles of law. The discretion of granting pre arrest bail has been exercised in a slipshod manner, without rendering deliberations on the merits of the case. Two young ladies were abducted from house with intention to solemnize forced marriage. The pre requisite for grant of pre arrest bail being mala fides and ulterior motives were not looked into, the Respondents Nos. 1 to 3 were granted bail through a non-speaking order. The abductees after release from the captivity appeared before the concerned Magistrate and recorded statements under Section 164 Cr.P.C in which they fully supported the prosecution case. The Respondents Nos. 1 to 3 were involved in a heinous offence of abduction and were not entitled for the extra ordinary concession of pre arrest bail. He prayed for cancellation of the bail and issuance of notices to the Respondents Nos. 1 and 3.

5. Conversely Mr. Mohammed Noonari Learned Deputy Prosecutor General, Sindh opposed the submissions of the Counsel for Applicant. He contended that the complainant in FIR alleged the abduction of both girls from his house but the said version did not find support from the statements of alleged abductees. The case of the Respondents Nos. 1 to 3 fell within the ambit of subsection (2) of section 497 Cr.P.C. calling for further inquiry into their guilt, they were entitled for grant of bail as a matter of right in the given circumstances of the case. The Trial Court exercised its discretion in favour of the accused on the basis of material collected during investigation, the bail granting orders did not suffer from any illegality, thus did not warrant interference by this Court. He prayed for dismissal of the application.

6. Heard learned counsel for the parties and perused the material available on record.

7. The incident allegedly took place on 07.05.2024 whereas the matter was reported to police on 17.05.2024 after a delay of 10 days for which no plausible reason was accounted for. The alleged abductees were produced before the Court of learned II Civil Judge and Judicial Magistrate Kashmore (the Magistrate) for recording of their statements under section 164 Cr.P.C., but record is silent about the mode of recovery and captivity of the alleged abductees by the accused persons. The alleged abductee Afia Naz in her statement recorded under Section 164 Cr.P.C. before the Magistrate disclosed that she was abducted by accused Fahmeed about 5 / 6 months ago while accused Akbar, Ismail, Fareed and Attaullah resorted to aerial firing and accused Khan Muhammad robed gold ornaments. She desired to join her parents. The alleged abductee Shehla in her 164 Cr.P.C statement stated that she was abducted by accused Barkat Ali, while accused Piyar Ali, Mast Ali, Ahmeddeen and Lashar maltreated her and accused Muqadam robbed gold ornaments. Nowhere in their statements, had the alleged abductees mentioned that were they abducted by all the accused persons from the house of Complainant. Rather tentative assessment of the statement of the alleged abductees leads to an inference that separate incidents of the abduction took place. The factum of robbery of gold ornaments as narrated by the alleged abductees in their statements before the Magistrate does not conform to the prosecution narration of FIR. The alleged abductees even did not allege their forceful marriage with the accused persons as suspected by the Complainant in the FIR. The statements of abductees are also silent regarding their captivity and recovery and production before the Magistrate. There is no allegation of zina against accused persons. In such a situation the determination of the culpability of the accused/ Respondents for offence punishable under Sections 365-B, 494 required recording of evidence, calling for further probe into the guilt, in particular when the parties are related to each other and engaged in a feud over matrimonial affairs the mala fides and ulterior motives to concoct a story of abduction cannot be ruled out at this stage.

8. The grounds urged for cancellation of bail do not find support from the material collected during investigation. The Trial Court granted bail to the accused/ Respondents Nos. 1 to 3 on the strength of the material available on record. The principles for cancellation of bail are quite different, once the Trial Court grants bail to the accused by exercising well-reasoned discretion, than the scope for interference under appellate or revisional jurisdiction of this Court is very limited and restricted. The Constitution of the Country guarantees the liberty of a person as fundamental right and grant of bail is nothing but shifting of the custody of the accused in the hands of surety to secure his attendance during trial. The grant of bail during pendency of Trial is not a vested and qualified right of the accused, such a concession can be withdrawn when misused. The Court would not hesitate to exercise its discretion to cancel bail, if it is established on record that the accused, after securing bail, involves in a mischief that undermines the administration of justice, attempts to influence or intimidate witnesses, tampers with evidence, repeats the offence while on bail, or violates the conditions imposed by the court, fails to appear before the court without just cause, or if new facts come to light that controvert the facts on which bail was granted, the court may in such a situation revoke the concession of bail.

9. The Court may interfere and cancel the bail when it transpires that bail granting order was perverse on the face of it, or the bail was granted in clear disregard and contravention to the settled proposition of law, the bail was granted against the weight of material available on record, or the court while granting bail entered into a deeper analysis of material available which prejudiced the case of either side, the bail granting order was capricious, whimsical or arbitrary in nature and was based upon some erroneous conclusions. Though the bail application cannot be decided in vacuum but the Courts while dealing with a bail application are required to make a tentative assessment of the material on record to form an opinion that whether or not there existed any "reasonable grounds" for believing that the accused person is guilty of the alleged offence.

10. The Honorable Supreme Court of Pakistan in the case of Sami Ullah and another v. Laiq Zada and another reported in 2020 SCMR 1115 while dealing with identical issue has been pleased to hold as under: "The Crux of the grievance invoked under section 497(5) Cr.P.C. by the Complainant before the Peshawar High Court was that the order passed by the Learned Trial Court was in defiance of the material available on the record hence the same was not sustainable in the eye of law. Bare perusal of provision of section 497(5) Cr.P.C., it do not demonstrate any specific ground to press into the pretense of said provision of law, however superior courts of the country from time to time have enunciated certain principles governing cancellation of bail and those are in field with unanimous concurrence since considerable time. Those are enumerated as under: (i) If the bail granting order is patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice; (ii) That the accused has misused the concession of bail in any manner; (iii) That the accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses; (iv) That there is likelihood of abscondment of the accused. (v) That the accused has attempted to interfere with the smooth course of investigation. (vi) That accused misused his liberty while indulging into similar offence. (vii) That some fresh facts and material has been collected during the course of investigation which tends to establish guilt of the accused.

11. In the present case, no any illegality or infirmity has been pointed out in the impugned orders to attract any of the grounds for cancellation of bail. Consequently, this Court is not inclined to interfere in the impugned orders of the Trial Court. Accordingly, this application fails and is dismissed in liminie. JK/D-3/Sindh Application dismissed.