Nisar Ahmed V. The State and others,

2024 M L D 238 [Balochistan] Before Iqbal Ahmed Kasi, J NISAR AHMED---Applicant Versus The STATE and others ---Respondents Criminal Bail Cancellation Application No. 484 of 2022, decided on 4th April, 2023. (a) Criminal Procedure Code (V of 1898) --- ----S. 497(5) ---Bail, cancellation of ---Principle ---Bail can only be cancelled if bail granting order appears to be perverse and gross illegality has been committed. (b) Criminal Procedure Code (V of 1898) --- ----S. 497(5) ---Penal Code (XLV of 1860), Ss. 337- A(i), 337- D & 337- F---Murderous assault ---Petition for cancellation of bail ---Complainant mentioned the time of occurrence as 01:00 p.m., whereas, the FIR was registered at 05:20 p.m., which showed delay of about 04 hours and 20 minutes without giving any explanation, as such, element of due deliberation and consultation in nomination of accused persons by the complainant could not be ruled out ---Record further indicated that a civil dispute over the construction of wall/house existed between the parties --- Medical certificate of injured showed that only one injury was observed and the same at the most came under definition of S. 337- A(i), P.P.C., which was bailable in nature ---Prima facie Ss. 337 -D & 337- F, P.P.C. were not attracted in the present case--- Trial Court had given valid reasons for confirmation of ad -interim pre -arrest bail of accused persons ---Allegation of abusing or misusing the concession of bail by the accused persons was not supported by affidavit of any witness --- Petition for cancellation of bail was dismissed, in circumstances. 2005 SCMR 1539; 2009 SCMR 786; Jamal -ud-Din's case 1983 SCMR 1979 and Meeran Bux v. State PLD 1989 SC 347 rel. Amanullah Tareen for Applicant. Nasrullah, Deputy Prosecutor General for the State/ Respondent No. 1. Mirwais Khan Tareen for Respondents Nos. 2 to 4. Date of hearing: 17th March, 2023. ORDER IQBAL AHMED KASI, J. ---In the instant application, the following relief has been sought by the applicant: - "It is, therefore, most humbly and respectfully prayed that the order dated 13.06.2022 passed by learned Sessions Judge, Khanozai, District Pishin may kindly be set aside and the respondents Nos.2 to 4 be handed over to the Investigating Officer for proper investigation of case in the interest of justice."

2. Brief facts giving rise to file the instant bail cancellation application are that on 28.07.2021, the complainant namely Nisar Ahmed lodged an FIR No.12/2021, with Levies Thana, Khanozai, wherein, he alleged that on the fateful day at about 01:00 p.m., construction work was started at his house, in the meanwhile, Dafedar Abdullah, Habibullah, Najeebullah, Safi Ullah and Muhammad Yaseen sons of Master Abdul Aziz came at his house armed with spades, sticks and axe, who intentionally broken the gate, cut the line of tap, and blocked the way. He further alleged that they also stopped the construction work. When brother of complainant Samiullah came on the spot and inquired about the cause, the accused instead of stopping their act, attacked upon Samiullah with sticks, spades and axe. The accused Najeebullah hit him on his head by means of axe and caused him injured and when the complainant reached there, the accused persons also attached upon him. Consequently, the FIR was registered.

3. Thereafter two accused persons, namely, Habibullah and Abdullah were arrested, whereas, respondent 2 to 4 remained absconders.

4. After completion of investigation with regard to two accused, namely, Habibullah and Abdullah, challan was submitted before the trial Court i.e. Judicial Magistrate Karezat, at Khanozai, where charge was framed and read over to the accused facing trial, which they pleaded not guilty and opted trial.

5. The trial Court directed the prosecution to produce its evidence, who produced two witnesses.

6. In the meanwhile, respondent Nos.2 to 4, moved an application under section 498, Cr.P.C for grant of bail before arrest in the Court of Additional Sessions Judge, Khanozai.

7. After hearing arguments the learned In -charge/Additional Sessions Judge, Khanozai, granted and then confirmed bail to the referred respondents, vide order dated 13.06.2022 ('the impugned order'). Being aggrieved and dissatisfied of the impugned order of the In- charge/Additional Sessions Judge, Khanozai, District Pishin, the instant application has been filed.

8. Learned counsel for the applicant/complainant contended that the respondents Nos.2 to 4 are nominated in the prompt FIR with specific role; that the In -charge/Additional Sessions Judge, Khanozai, failed to appreciate the fact that the respondents Nos. 02 to 04 failed to bring on record material on the part of prosecution, which is mandatory.

9. Learned counsel for respondents Nos.2 to 4 and learned DPG, opposed the contention of learned counsel for the applicant and stated that the alleged time of occurrence is 01:00 p.m., whereas, FIR was lodged at 05:20 p.m., with the delay of four (04) hours and 20 minutes, that too, without giving any explanation of this delay. They further contended that the lower appellate Court rightly allowed the bail application.

10. I have heard learned counsel for parties and perused the available record with their able assistance. It is settled law that bail can only be cancelled if bail granting order appears to be perverse and gross illegality has been committed. The principles governing the grant of bail and the cancellation of bail substantially stand on different footings. Courts have always been slow to cancel bail, already granted, as the liberty of a person cannot be curtailed on flimsy grounds. Interference with any order of bail is required to be made when the same lack reasons or is perfunctory in nature. Once bail has been granted, the prosecution has to make out a strong case for cancellation of bail, not by making allegation alone, but by giving substantive proof of such allegation. Order for cancellation of bail is a harsh order because it interferes with the liberty of an individual, hence, it must not be resorted to lightly and power to take back in custody is to be exercised with due care and circumspection. In this behalf a dictum has already been laid down by the Hon'ble Supreme Court of Pakistan, reported in 2005 SCMR 1539 and 2009 SCMR 786, in which it was held that, 'considerations for cancellation of bail are quite different from the considerations for grant of bail. Once bail has been granted by the competent Court of law, strong and exceptional grounds are required for cancelling the same. It has to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice.'

11. No doubt, in the instant case the complainant Nisar Ahmed mentions the time of occurrence as 01:00 p.m., whereas, the FIR was registered at 05:20 p.m., which shows delay of about 04 hours and 20 minutes and, that is too, without giving any explanation, as such, element of due deliberation and consultation in nomination of accused persons by the complainant could not be ruled out. Record further indicates that there is a civil dispute over the construction of wall/house existed between the parties. The medical certificate of injured Samiullah shows that only one injury was observed and the same is at the most under comes definition of section 337- A(i), P.P.C., which is bail -able in nature. Prima facie sections 337- D and 337- F do not attract in the instant case. The trial Court has given valid reasons for confirmation of ad- interim pre -arrest bail of respondents.

12. The scope of pre -arrest bail was widened in Jamal -ud-Din's case reported in 1983 SCMR 1979, wherein, Hon'ble Supreme Court reiterated the principles for grant of pre -arrest bail and also held that, 'the grant or refusal of bail in criminal cases primarily depends upon the facts and circumstances of each case and no hard and fast rule can be laid down in this regard'. Similarly, in the case of Meeran Bux v. State, PLD 1989 SC 347, the cancellation of bail before arrest of the appellant by the High Court was set aside and the order passed by learned Sessions Judge granting pre -arrest bail to the appellant on the ground of further inquiry was restored by the Hon'ble Supreme Court and it was held that: - "Apart from this we find that the Sessions Judge granted that pre -arrest bail to the appellant after considering the merits of the case inasmuch as he inter alia observed that the injury alleged to have been caused by the appellant to the leg of the deceased by gunshot was according to the post -mortem note, neither fatal nor was caused on the vital part of the body and was declared to be simple and that it was a case of further inquiry so far as the appellant is concerned…………. Since the appellant remained on bail for more than one year before the bail was cancelled by the High Court without abusing the concession of bail in any manner and the reason given by the learned Sessions Judge for granting pre -arrest bail that the injury was on non- vital part of the body of the deceased i.e. thigh and was simple, was not without foundation, we would therefore, in the circumstances, set aside the impugned order of the High Court and restore the order of the Sessions Judge granting the pre -arrest bail." In view of dictum laid down by the Hon'ble Supreme Court of Pakistan, the confirmation of ad- interim pre -arrest bail of the respondents by learned Additional Sessions, in view of the scope of further inquiry cannot be termed illegal or any wrong exercise of discretion as apart from mala fide and arrest for ulterior motives such as humiliation and unjustified harassment, the scope of further inquiry can also be made a basis for grant/confirmation of pre -arrest bail, primarily depending upon the facts and circumstances of each case. The allegation of abusing or misusing the concession of bail by the respondents is not supported by affidavit of any witness. For what has been discussed hereinabove, I am inclined to dismiss the instant application for cancellation of bail. JK/137/Bal. Application dismissed.