MUHAMMAD PERVAIZ KHAN Versus State

ORDER

1. This application for cancellation of pre-arrest bail granted to respondent No.2, Ghulam Rabbani, by the learned VI-Additional Sessions Judge, Karachi-South, has been filed by Muhammad Pervaiz complainant in Crime No.92 of 2001 registered at Police Station Mahmoodabad, Karachi-South on 9-5-2001 at 21-30 hours under section 365/34 read with section 109, P.P.C.

2. It has been alleged by the complainant in his F.I.R. that his son by name Adnan aged about 15 years who is a healthy young man requested his mother on 6-4-2001 at about 10-30 p.m. to give him Rs.150 which he had to deposit somewhere and after receiving such money he went out of the house and did not return during the whole night. He was not traced though searched as such a report regarding his disappearance was lodged. In the F.I.R. complainant stated that he suspected his tenant Pervaiz Gulzar who had left away his house after one week of the incident. He has further shown his suspicion in his neighbourers, namely, Mst. Hameeda and Ghulam Rabbani (respondent No.2) to have abducted his son Adnan and concealed him somewhere in order to cause him physical and mental torture.

3. It is the case of the prosecution that despite efforts Adnan was not traced but on 20-5-2001 Adnan came back to his house and stated that he has reached home safely after having escaped from the custody of a truck driver, namely, K2 Ustad from Sanghar Sindh. Police recorded 161, Cr.P.C. statement of the alleged abductee and so also his 164, Cr.P.C. statement was got recorded before the Magistrate.

4. Bail was granted to the respondent No.2 by the learned VI-Additional Sessions Judge, Karachi-South on 18-6-2001 mainly on the ground that from the record of the case and the police papers it transpires that Adnan the alleged abductee, had left the house of his father at his own. A reference has been made to some news item which appeared in a newspaper giving a different version of the alleged abduction.

5. Mr. Sami Ahsan, learned counsel for the applicant/complainant, has mainly argued that there is sufficient evidence against the respondent/accused as such the learned trial Court was not justified in exercising the jurisdiction of granting pre-arrest bail.

6. Mr. M. Sarfraz Khan, learned counsel for the accused/ respondent, has argued that the material on record particularly the 161 and 164, Cr.P.C. statements of alleged abductee recorded by the police clearly show that the alleged abductee was himself roaming here and there in various towns of the Province of Sindh. Some time he was serving at some hotel and some times he was working with some drivers on trucks. He was all along moving freely and there do not appear to be any restraints upon him. The learned counsel has, therefore, argued that the applicant/complainant has involved the present respondent with ulterior motive and mala fide intentions in this false case due to enmity. He has further argued that the order passed by the learned trial Court is neither perverse nor without jurisdiction, hence the application is liable to be rejected.

7. I have heard the learned counsel for the parties and perused the police papers. It appears that alleged abductee Adnan left his house at his own on 6-4-2001 . Report regarding his disappearance was lodged on 4-5-2001 which was entered in the Roznamcha as Entry No.72 of 2001 at 00-15 hours at Police Station Mahmoodabad and in that report no suspicion was shown in anybody by complainant Muhammad Parvaiz Khan for alleged abduction of his son Adnan. It was after five days of the above report that F.I.R. was lodged and the names of the suspects were mentioned there in. 161, Cr.P.C. statement of Adnan was recorded by police on 20-5-2001 and his 164, Cr.P.C. statement was got recorded through V-Judicial Magistrate, Karachi-South. The two statements of the alleged abductee are at variance. I would like to observe here that the learned Judicial Magistrate has recorded the 164, Cr.P.C. statement of the alleged abductee in English language though he is shown to be speaking Urdu language as well as Hindko. Such practice on the part of the Magistrates recording the 164, Cr.P.C. statements cannot be approved. A Magistrate is expected to know the basic requirement of law.

8. The principles for cancellation of bail are altogether different from the principles for grant or refusal of a bail by a Court. In view of the material available on record it appears that the impugned order cannot be considered to be illegal, perverse or without jurisdiction. There is no harm in granting pre-arrest bail to an accused if otherwise his case is fit and appropriate for being enlarged on bail after arrest. As held in the case of Muhammad Ramzan v. Zafarullah and another 1986 SCMR 1380 no useful purpose will be served if bail to an accused (respondents) was cancelled on any technical ground, if he could be allowed bail on merits after his arrest. Under the circumstances no case is made out for cancellation of pre-arrest bail granted by the trial Court to respondent No.2.

9. H.B.T./M-188/K Application dismissed.