SALIM DAD vs POLICE INSPECTOR, KANSON DEAN and 2 others
This is an application filed under section 497(5) read with section 561-A of the Code of Criminal Procedure 1898 seeking the cancellation of pre-arrest bail granted to respondents Nos. 1 and 2 by the IV Additional Sessions Judge, Karachi East, in respect of a case registered under sections 365, 302, and 34 of the Pakistan Penal Code 1860 at Police Station Aziz Bhatti. The core legal question concerns whether the pre-arrest bail granted to the respondents was wrongly confirmed despite allegations of involvement in a fake encounter resulting in murder. The Sindh High Court held that no specific role or overt act was attributed to the respondents in the relevant first information reports, and the impugned bail-granting order contained no legal infirmity. Consequently, the court dismissed the criminal miscellaneous application, laying down the principle that bail will not be cancelled in the absence of extraordinary grounds or where no overt acts are attributed to the accused.
- Whether pre-arrest bail granted by a Sessions Court can be cancelled under section 497(5) of the Code of Criminal Procedure 1898 when no overt act is attributed to the accused?
- Does the absence of specific role assignment in the first information report justify the refusal or cancellation of bail?
- Is interference warranted against a well-reasoned bail confirmation order passed by an Additional Sessions Judge?
- Section 497(5), Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 365, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' MUHAMMAD TASNIM, J.---This is an application under section 497(5), Cr.P.C. Read with section 561- A, Cr.P.C. For cancellation of bail granted by the learned IV Additional Sessions Judge, Karachi East in Crirhinal Bail Application No,1526 of 2011 on 20-9-2011, whereby interim pre-arrest bail of respondents Nos.1 and 2 was confirmed in Crime No,331 of 2011, under sections 365/302/34, P.P.C., Police Station Aziz Bhatti.
2. Precisely, the facts of the prosecution case are that the complainant is president of Awami National Party (ANP), Dalmia Ward. On 15-5-2011 a public gathering (JALSA) of ANP was held at KDA ground North Nazimabad Intermediate Board Office, in which complainant, his son namely Sahib Dad and other workers of ANP had participated. At about 10'O Clock said (JALSA) was over, the complainant through his car moved towards his house, while son of the complainant Sahib Dad on his own motorcycle along with other party members of ANP namely Faiq, Aijaz Ahmed, Gul Nabi and Fazal Bahadur who were on their motorcycles, when they reached at T & T office, University Road, opposite Urdu Science College, Sahib Dad was going ahead of them, at about 10-15 p.m. a black car appeared in which five persons were sitting, one of them was driving the vehicle, one person was sitting on the front seat having T.T. Pistol, whereas three persons were sitting on the rear seat who were having Kalashinkoves and hit the motorcycle of Sahib Dad who fell down and four persons from car came down and on force of weapons had taken Sahib Dad away along with them in the said car towards Sardar Ali Sabri Road. The other persons along with Sahib Dad reached to the house of complainant and disclosed the occurrence, on which the complainant along with others reached to Police Station Aziz Bhatti and thereafter to Police Station Gulshan-e- Iqbal there he found that dead body of his son was lying in the ambulance in front of B.S. Gulshan- e-Iqbal. On enquiry it transpired that police officials had murdered the son of the complainant and dead body was being taken to Jinnah Hospital. It is further alleged that it came to the knowledge of the complainant that son of the complainant has been murdered due to political rivalry at the behest of one Syed Salman Raza by S.H.O. Police Station Gulshan-e-Iqbal, A.S.-I. Muhammad Ali Shah, H.C. Asif and Suraish. Accordingly F.I.R. Was lodged.
3. Learned counsel for the applicant has submitted that respondents Nos.1 and 2 are fully connected with the commission of the offence and in a fake encounter they have killed the son of the applicant. He says that interim bail of the respondents Nos.1 and 2 was wrongly confirmed and the same may be cancelled.
4. On the other hand learned counsel for the respondents Nos.1 and 2 have submitted that no role has been assigned to the respondents Nos.1 and 2 and respondent No,2 was the complainant in Crime No,359 of 2011, even in the F.I.R. No overt act has been assigned to respondent No,2. They further submitted that respondents are regularly, attending the trial Court. They further submitted that charge against the respondents was framed on 27-4-2012 but no prosecution witness has been examined.
5. I have heard the learned counsel for the parties and have perused the record and the case-law cited at the bar.
6. Perusal of F.I,R. No,359 of 2011 shows that during the encounter specific role has been assigned to accused Muhammad Ali Shah, Muhammad Asif and Suraish, but no role of whatsoever has been assigned to the respondents Nos.1 and 2. Perusal of F.I.R. No, 331 of 2011 shows that name of respondents Nos.1 and 2 appears but no overt act has been attributed to them. The impugned order passed by the learned IV Additional Sessions Judge., Karachi East dated 20-9-2011 has been perused. Learned counsel for applicant/complainant could not point out any illegality therein and such order appears to have been passed after going through the material available on record in accordance with law. In the circumstances, no interference is called for, hence this criminal miscellaneous application is dismissed.