' IRFAN SAADAT KHAN, J.---This criminal miscellaneous application has been filed against the order dated 24-1-2012 passed by III-Additional Sessions Judge, Hyderabad.
2. Briefly stated the facts of the case are that the complainant is a labourer. He stated that on 17-11- 2011 when he and his brother Kesro were going to their home on their motorcycle at about 6-15 hours. When they reached near katchi patri adjacent to sugarcane crop, two persons came on a motorcycle, one of whom was muffled face. The said motorcycle came in front of them and stopped them. The person with the open face then took out his pistol pointed out the same at them and directed them to leave the motorcycle. However, the complainant and his companions resisted and raised cries. The accused persons, as per the complainant, then started beating them and they in this regard received injuries. In the meantime on their cries the villagers came and with.
The help of the villagers they were able to apprehend both these culprits along with the pistol. The complainant thereafter disclosed the facts to his zamindar on telephone, who informed the police and both the zamindar and police thereafter reached at the spot. The complainant and his companions then handed over the accused persons, along with the pistol and motorcycle, to the police. Upon inquiry the accused persons disclosed their names as Ghulam Hussain son of Soomar alias Jogi Mallah and Ghulam Muhammad son of Niaz Hussain Ghanglo. From the possession of the applicant/accused police found pistol with five live bullets. Thereafter police prepared mashirnama and took the accused, pistol and.The motorcycle into its custody.
3. Mr. Jahangir Khan Pathan, appeared on behalf of the complainant and stated that the learned court was not justified in enlarging the applicant/accused on bail, as according to him these persons are habitual criminals and a number of cases were registered against them in which they are facing trial. He stated that the accused admittedly tried to commit a dacoity and were arrested red handed from the spot. He further stated that from their possession one pistol and five live bullets were recovered. He stated that the accused persons filed an application under section 22- A, Cr.P.C. Before the Ex-Officio Justice of Peace, which was also dismissed. He stated that the order passed by the learned trial Court is based upon-conjectures and surmises. He further stated that it is apparent from the F.I.R. That the date and time of report has been mentioned at 18-11-2011 at 1300 hours at Police Station Sultanabad whereas it has also been mentioned the date and time of report to be at 1500 hours at Police Station Tando Allahyar meaning thereby that firstly the report was made at Police Station Sultanabad, which is an unnotified Police Station, and subsequently the report was made at Police Station Tando Allahyar, which is a notified Police Station. He stated that the name of the political figure mentioned in the is not a Minister as such the learned trial Court was not justified in observing that the said F.I.R. Has been registered on the influence used by the said political figure. He, in the end, submitted that the bail granted by the learned court may be cancelled.
4. Mr. Hidayatullah Abbassi, learned Senior counsel, representing the accused persons on the other hand has submitted that he will point wise answer the replies of the allegations made by the counsel for the complainant. He firstly submitted that the counsel for the complainant has stated that the name of the political figure mentioned in the F.I.R., if was different from the one mentioned by the complainant, then why no description etc was given of the said person and why he was never produced in the court. He stated that it has been admitted by the complainant that the accused persons came with the intention to commit dacoity but it is strange to note that no description of the motorcycle was given. He further stated that it is also strange to note that the motorcycle, which is a case property, has never been produced in the court. He states that it is a trite proposition of law that alleged case property is always produced before the court, which has not been done.
' He further stated that it is admitted in the F.I.R. That the said F.I.R. Has been lodged after consultation meaning thereby that the complainant himself was not sure whether to lodge F.I.R.
Against the applicant/accused or not and upon the instigation of the political figure, whose name is mentioned in the F.I.R., the said F.I.R. Was registered. He stated that there was an enmity between the said political figure and the applicant/accused, who on the designated day went to discuss some financial matter with him, but the said alleged case was foisted upon them and they were handed over to the police by levelling false charges against them. He further stated that the counsel for the complainant has alleged that the accused are habitual criminals and there were a number of F.I.Rs, registered against them but the question is have they ever produced any of such F.I.R. Against those persons. He stated that the answer to this question is in emphatic No, The counsel for the complainant, according to him, has failed to produce a single document before the trial Court in respect of this submission hence no adverse inference in this regard could be drawn against the accused persons. He further stated that when the accused were admittedly red handed apprehended on the spot, why the second F.I.R. Was lodged after a delay of 18 hours, which has not been explained. He further stated that the applicant/accused were shifted from Police Station Sultanabad to Police Station Tando Allahyar, for which no record is available with the prosecution. He further stated that while granting the bail no detailed discussion, deliberations are to be made and only a tentative assessment is to be made and the trial Court was thus fully justified in enlarging the applicant/accused on bail after finding that the case is that of further inquiry. He submitted that this criminal miscellaneous application is bereft of any merit and is liable to be dismissed. In support of his above contentions the learned counsel has relied upon the cases of (1) TARIQ BASHIR and 5 others v. THE STATE (PLD 1995 Supreme Court 34) and (2) THE STATE/ANTI NARCOTIC through Director General v. RAFIQ AHMAD CHANNA (2010 SCM R 580).
5. Mr. Muhammad Iqbal Kalhoro, learned A.P.-G. On the other hand has adopted the arguments of learned Senior Counsel stated that exceptional and strong grounds are required for cancellation of bail and the learned counsel for the complainant has failed to demonstrate that what are the exceptional and strong grounds for cancellation of the bail. He states that there is a delay in F.I.R.
And there are other contradictions and irregularities apparent from the record hence according to him the learned trial Court was fully justified in enlarging the applicant/accused on bail.
6. I have heard all the learned counsel at considerable length and perused the record and the decisions relied upon.
7. In my view, it is an admitted fact that the motorcycle has never been produced in the court. It is also admitted by the complainant that the accused came at the spot with the intention of dacoity to rob the motorcycle but the said motorcycle, being the case property, has never been produced in the court. I have further observed that if the accused are habitual criminals, as stated by the learned counsel, why no F.I.R. And other relevant material was produced by him before the trial Court. It have also noted that the delay of 18 hours in lodging the F.I.R. Has not been satisfactorily explained as when admittedly the accused were arrested from the spot why it took 18 hours to the police to lodge an F.I.R. It is a settled proposition of law that in the matter of cancellation of bail the con- 'rations for granting the bail are totally different from the consideration of cancellation of bail.
The bail can be cancelled if the order apparently is perverse or has been passed by totally ignoring the facts and in violation of the law and has resulted in miscarriage of justice, whereas in the instant case in my view, the learned counsel for the complainant has failed to demonstrate that what patent illegality has been committed by the learned trial Court in enlarging the applicant/accused on bail as the learned trial Court has categorically observed that in view of the facts of the case, the case is a fit case of further inquiry. At this juncture, I would like to reproduce herein below the observations made by honourable Supreme Court of Pakistan in the case of TARIQ BASHIR wherein the Honourable Apex Court has observed as under:-- "The considerations for the grant of bail and for cancellation of the same are altogether different.
Once the bail is granted by a Court of competent jurisdiction, then strong and .Exceptional grounds would be required for cancellation thereof. To deprive a person on post arrest bail of the liberty is a most serious .Step to be taken."
8. In view of the facts noted above, I am of the view that no case of interference in the order passed by the learned trial Court is made out. The application is found to be devoid of any merit and is hereby dismissed.
' Above are the reasons of the short Order passed in Court today.