2025 M L D 109
[Balochistan]
Before Iqbal Ahmed Kasi, J
Mst. SAMINA BIBI ---Petitioner
Versus
ABDUL KHALIQ and another ---Respondents
Criminal Revision Petition No. 37 of 2024, decided on 16th August, 2024.
Criminal Procedure Code (V of 1898) ---
----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss. 302(b) & 34--- Qatl-i-amd, common
intention--- Petition for cancellation of bail dismissal of ---Scope ---Accused -respondents were
charged for committing murder of the husband of the complainant ---Record of the case
revealed that prior to lodgment of the present FIR and the alleged murder of the deceased one
nominated accused in the present case lodged FIR under S.365- B, P.P.C, against "M" and
deceased and two others wherein, the complainant alleged that her wife "M" without obtaining talak contracted marriage with deceased ---Perusal of record revealed that with
regard to extending threats to deceased, by the complainant of that FIR and others, a complaint under Ss. 107 & 151, Cr.P.C., was filed, but perusal of the same revealed that in
said complaint, respondent No.l was neither nominated in any manner, nor had he been alleged to have extended threats to deceased ---In the application under S.498, Cr.P.C., for
grant of pre -arrest bail, the respondent No. 1 had specifically taken the plea of alibi and
stated that at the date and time of occurrence, he was present in a meeting in the office of Chief Secretary, and in that respect he also produced the CCTV footages and certificate to the Investigating Officer coupled with the attendance certificate of meeting held on 07.03.2024, wherein, his name was mentioned at serial No.07 of the attendance sheet ---
Nothing was found to show that accused/respondent had misused the concession of bail ---
Consideration for the grant of bail and cancellation thereof is entirely on different footings ---
Generally speaking, the Courts are reluctant to interfere in the order of grant of bail and even in cases, where it is apparently found that the bail granting order is not sustainable in the eyes of law, the Courts restrain from interfering in such matters, if it is found that there is nothing to show that respondent/accused has misused the concession of bail ---Petitioner
could not point out on record as to whether respondent No.1 had violated any of the conditions, which could become basis for cancellation of bail granted to him ---Accumulative
effect was that the impugned order was in accordance with law and petitioner had failed to justify that Trial Court had erred in law, which by any stretch of imagination could be termed as perverse, arbitrary and fanciful ---Petition for cancellation of bail was dismissed.
Zaigham Ashraf v. The State 2016 SCMR 18 and Samiullah v. Laiq Zada 2020
SCMR 1115 rel.
Alamzaib Kakar for the Petitioner.
Date of hearing: 9th August, 2024.
ORDER
IQBAL AHMED KASI, J .---Through this petition, petitioner Mst. Samina bibi
widow of Samiullah, has challenged the validity of the order dated 09.05.2024 ("the impugned order") passed by the learned Additional Sessions Judge -I, Quetta ("the trial
Court") whereby, the application under Section 498, Cr.P.C. for grant of pre -arrest bail, filed
by the respondent No.1, was allowed and the ad- interim order of the respondent
No.1/accused dated 06.02.2024 was confirmed.
2. Facts in brief leading to file the instant criminal revision petition are that the
petitioner lodged report vide FIR No.23 of 2024, dated 07.03.2024, under Sections 302, 34,
P.P.C. with Police Station Jinnah Town, Quetta, against the respondent No.1/accused and
four others with the allegations that on the fateful day she received information from her sister -in-law, namely, Madiha through cell phone that her husband Samiullah (deceased) has
sustained injuries by firing. Upon such information, she rushed towards hospital where she found the body of her husband lying in a pool of blood. She further alleged that her husband
contracted a Court marriage with one Maira daughter of Sohail in the year 2023, owing to
that, the brothers, cousins and uncle of Maira were repeatedly extending threats and in this
respect her husband also lodged a complaint at Police Station, Airport, Quetta. She also alleged that on 07.03.2024, when her husband went to Sessions Court, there, threats were also extended to him for his murder, thus, she mentioned in her complaint that the present accused and four others have committed the murder of her husband at Samungli Housing Quetta. Consequently, the FIR was lodged.
3. After registration of FIR, the respondent No.1/accused on 11.03.2024, surrendered
himself before the trial Court by filing an application under Section 498, Cr.P.C. for grant of pre-arrest bail, whereby, ad -interim pre -arrest bail, in the sum of Rs.3,00,000/ - (rupees three
hundred thousand) was admitted to the respondent No.1/accused, which was later on confirmed through the impugned order by the trial Court, hence this revision petition.
4. Learned counsel for the petitioner inter alia contended that the impugned order of the
trial Court is contrary to law and facts; that the respondent No.1/accused was admitted to bail solely on the ground of plea of alibi, whereas, as per judgments of the apex Courts, plea of alibi could not be judged at bail stage; that the prosecution's investigation is incomplete without arrest of the prime accused, but the trial Court has failed to consider such aspect of the matter; that the respondent No.1 is the main accused in the case and has been charged in
the promptly lodged FIR; that there is a prima facie case against the respondent No.1 and he was an active participant while passing threat to the victim/deceased; that there is every apprehension of tempering the prosecution evidence by respondent No.1; that the order passed by the trial Court is based on surmises and conjectures, as such, is liable to be set aside.
5. I have heard learned counsel for the petitioner at length and perused the available
record with his able assistance. At the very outset, while hearing of the instant petition, the learned counsel for the petitioner was put a query that how the instant petition is maintainability, while the law provides a specific provision under Section 497(5), Cr.P.C. seeking cancellation of bail, granted to an accused, he failed to satisfy the Court. Be that as it may, record of the case reveals that prior to lodgment of the instant FIR and the alleged murder of the deceased, one Muhammad Ibrahim (nominated accused in the present case) lodged FIR No.203 of 2023 under Section 365- B, P.P.C. against Maira and Samiullah
(deceased) and two others at Police Station Satellite Town, Quetta, wherein, the complainant alleged that her wife Maira without obtaining talak contracted marriage with Samiullah (deceased). It further depicts from the perusal of record that with regard to extending threats to deceased Samiullah, by the complainant of FIR No.203/2023 and others, a complaint bearing No.6- 3/2023, under Sections 107, 151, Cr.P.C., was filed, but perusal of the same
reveals that in such complaint, the respondent No.1 is neither nominated in any manner, nor has he been alleged to have extend threats to deceased. It further appears that in the application under Section 498, Cr.P.C., for grant of pre -arrest bail, the respondent No.1 has
specifically taken the plea of alibi and stated that at the date and time of occurrence, he was present in a meeting in the office of Chief Secretary Balochistan, and in this respect he also produced the CCTV footages and certificate to the Investigating Officer coupled with the attendance certificate of meeting held on 07.03.2024, wherein, his name is mentioned at serial No.07 of the attendance sheet.
6. As far as the contention of learned counsel for the petitioner that plea of alibi could
not be considered at bail stage, I am not in agreement with the learned counsel. With regards to the assessment of the plea of alibi at the bail stage, the case of "Zaigham Ashraf v. The State" (2016 SCMR 18) is instructive. There it was held that"
"6. There is no hard and fast rule that plea of alibi shall not be considered at bail stage because while granting or refusing to grant bail to an accused person, the Court is not required to see and consider the materials/evidence, collected in favour of the Prosecution but also to give proper attention to the defence plea, taken by an accused person.
9. To curtail the liberty of a person is a serious step in law, therefore, the Judges shall
apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively however, this exercise shall not to be carried out in vacuum or in a flimsy and casual manner as that will defeat the ends of justice because if the accused charged, is ultimately acquitted at the trial then no reparation or compensation can be awarded to him for the long incarceration, as the provisions of Criminal Procedure Code and the scheme of law on the subject do not provide for such arrangements to repair the loss caused to an accused person, detaining him in Jail without just cause and reasonable ground. Therefore, extraordinary care and caution shall be exercised by the Judges in the course of granting or refusing to grant bail to an accused person, charged for offence(s), punishable with capital punishment. The Courts are equally required to make tentative assessment with pure judicial approach of all the materials available on record, whether it goes in favour of the Prosecution or in favour of the defence before making a decision.
10. In the case of Amir v. The State (PLD 1972 SC 277) it was held that, "For purposes of bail, law is not to be stretched in favour of prosecution. Benefit of doubt,
if any arising, must go to accused even on bail stage." Similar view was taken in the
case of Manzoor v. The State (PLD 1972 SC 81). These principles so laid down, are
based on enunciation of law in interpreting the provision of section 497, Cr.P.C. and broader principle of justice. Till date, no departure or deviation has been made therefrom by this Court. These are the principles of law and have binding effect and
shall be construed as guiding principles by all the Courts in the matter of grant or
refusal of bail."
7. Keeping in view the guideline of the Supreme Court in the case supra, and on a
tentative assessment of the circumstances discussed above, I am of the view that
notwithstanding that even at the stage of bail, the plea of alibi cannot be ignored, when there
is nothing to suggest that the confirmation of the alibi is doubtful.
8. It is now established without any hesitation that consideration for the grant of bail and
cancellation whereof are entirely on different footings. Generally speaking, the Courts are
reluctant to interfere in the order of grant of bail and even in cases, where it is apparently found that the bail granting order is not sustainable in the eyes of law, the Courts restrain to interfere in such matters, if it is found that there was nothing to show that respondent/accused has misused the concession of bail. Reliance is placed on the case of "Samiullah v. Laiq Zada" 2020 SCMR 1115, whereby, the Hon'ble Supreme Court also held that in Criminal Petitions Nos.1459/2020, 1523/2020, has held that for the purpose of cancellation of bail, following considerations are to be satisfied: -
" i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice.
ii) That the accused has misused the concession of bail in any manner.
iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses.
iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of Court.
v) That the accused has attempted to interfere with the smooth course of investigation.
vi) That accused misused his liberty while indulging into similar offence.
vii) That some fresh facts and material have been collected during the course of investigation which tends to establish guilt of the accused."
9. When I confronted learned counsel for the petitioner with the above said guidelines,
he could not point out on record as to whether the respondent No.1 has violated any of the aforereferred conditions, which could become basis for cancellation of bail granted to him.
The accumulative effect of the reasons given above is that the impugned order before me is
in accordance with law and learned counsel for the petitioner has failed to justify that the trial Court has erred in law, which by any stretch of imagination could be termed as perverse, arbitrary and fanciful.
Thus, in view of the above facts and circumstances, I am not inclined to allow the
instant petition, resultantly, the same is hereby dismissed in limine.
JK/113/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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