Muhammad Hanif (Applicant) VS Muhammad Nasir & another (Respondent)

ORDER SHEET

ORDER SHEET.

IN

THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

Cr. Misc. A. No.95/2008.

Date Order with Signature of Judge.

FOR HEARING.

Mr. Nandan A. Kella, Advocate for the applicant.

Mr. S. Waseem Shah, Advocate for respondent No.1.

Mr. Anwar H. Ansari, State counsel.

This application is directed against the order dated 9.6.2008 passed by learned III-Additional Sessions Judge, Hyderabad, whereby the respondent No.1 has been granted post arrest bail in case F.I.R. No.17 of 2008 of Police Station Sakhipir.

The facts in nutshell are that on 20.10.2007 Muhammad Ramzan, the brother of complainant went for working at National Biscuit Factory and did not return back. On next day complainant Muhammad Hanif alongwith his brothers Yasin and Yameen went to said Factory and enquired from watchman, who informed them that Muhammad Ramzan after finishing his work at 1700 hours left the Factory alongwith Muhammad Nasir. Thereafter complainant made private search but did not find any clue. They met with Nasir who told them that on 20.10.2007 Muhammad Ramzan accompanied him from Factory to Kachi Mohalla. Since no clue came out therefore complainant lodged F.I.R. suspecting Nasir to be the accused.

The learned counsel for applicant/complainant submitted that the respondent No.1 is nominated in F.I.R. and role of taking deceased from Factory is alleged against him. Challan has been submitted for offence under Section 302 PPC which comes within prohibitory clause of Section 497(1) Cr.P.C. He lastly submitted that respondent No.1 has made confession therefore, learned trial court ought to have abstained from granting bail to the respondent No.1 at premature stage.

Learned counsel appearing on behalf of State assisted by Syed Muhammad Waseem Shah, counsel for respondent No.1 opposed the instant application and supported the impugned order and submitted that incident is unseen. There is unexplained delay of more than 4 months in lodging the FIR. Charge has been framed and the case is fixed for trial. He further submitted that the confessional statement was not voluntary because respondent No.1 was arrested on 28.2.2008 and confession was recorded on 4.3.2008. He lastly submitted that the case against respondent No.1 is identical to that of co-accused Danish who has been granted bail by this Court. Therefore, he submitted that respondent No.1 has rightly been granted bail by trial court. He relied upon P.L.D. 1996 SC 241 and 2004 S.C.M.R. 231 wherein cancellation of bail has been declined by Honourable Apex Court in similar circumstances.

I have given due attention to the submissions of learned counsel for the parties and have gone through the material placed on record. The perusal of impugned order shows that the trial court granted bail to respondent No.1 mainly on the ground that the case against the respondent is on same footing to that of co-accused Danish who has been granted bail by this Court on 22.4.2008 in Criminal Bail Application No.247 of 2008. For convenience I reproduce the operative part of order:

“I

have observed from the record that there is abnormal delay in lodging F.I.R. while the deceased was brother of the complainant and the report would have been lodged immediately but that has not been done. According to the post mortem report the death has been caused due to drowning in water channel in which the deceased was pushed but that does not have much water as confirmed by both the counsels. There are two versions one is drowning in the water and second is through the capsules while there is no direct evidence as evidence of Sohail Rehan is to be considered keeping in view the statement of Nasir while evidence of Nasir needs further scrutiny as he himself is accused and his statement can not be relied upon straight away without sorting it out. It has also come on record that the applicant had affair with the wife of the deceased, therefore, there was less probability for both of them to remain together so closely for hours.”

On inquiry the learned advocate for applicant replied that his client has not challenged the order dated 22.4.2008 passed by this Court before Honourable Apex Court. Further more it is admitted that now the charge has been framed and the case is fixed for trial.

Apart from that it is pertinent to mention here that this is an application for cancellation of bail and it is well settled law that consideration for cancellation of bail are different from the consideration of grant of bail. The learned counsel for applicant has not alleged that the respondent No.1 after release on bail misused the concession of bail, issued threats to complainant party not to depose against him, remained absent from trial court or repeated the offence.

In view of above discussion I am of the view that the learned trial court has rightly granted bail to respondent No.1 which needs no interference by this Court and there are no strong and exceptional grounds for cancellation of bail.

These are reasons for my short order dated

JUDGE

A.