2011 P Cr. L J 1166
[Quetta]
Before Muhammad Noor Meskanzai, J
ASIMULLAH ---Applicant
Versus
Haji ABDUL BARI and 5 others ---Respondents
Criminal Bail Cancellation Application No. 197 of 2009, decided on 23rd October, 2009.
Criminal Procedure Code (V of 1898) ---
----S. 497(5) ---Penal Code (XLV of 1860), Ss.337 -A, 337 -D & 337 -F---Causing Shajjah,
Jaifa and Ghair -Jaifa ---Cancellation of ba il, application for ---F.I.R. having been lodged with
inordinate and considerable delay, possibility of lodging of F.I.R. after consultation and
deliberation, could not be ruled out ---Mere nomination of accused, in the F.I.R. in such
circumstances, would no t disentitle him to the relief of bail, if otherwise he was found
entitled for concession of bail ---No documentary proof was available to the effect that
accused had misused the concession of bail and there was no complaint to any competent
forum in that respect ---Affidavits filed in that connection seemed an attempt to justify
cancellation of bail, which were not sufficient to warrant cancellation of bail ---Bail had been
granted to accused on merits and Trial Court had correctly concluded that no case fo r
cancellation of bail had been made out ---Even otherwise once bail was granted by a
competent court then strong and exceptional circumstances were required for its
cancellation ---All ingredients requiring cancellation of bail were lacking and missing in t he
case---No reason being available to interfere with legal orders passed by courts below,
application for cancellation of bail was dismissed, in circumstances.
Abdul Sattar Kakar for Applicant.
Abdul Ahad Kakar and Abdullah Kurd for Respondents.
Date of hearing: 9th October, 2009.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J .---This application for cancellation of bail has
been filed by complainant Asimullah.
Facts giving rise for filing of this application for cancellation of bail are that F.I.R.
No.29 of 2009 was lodged under section 337 -ADF of Qisas and Diyat Ordinance read with
section 34, P.P.C. on 5 -7-2009 with Police Station Muslim Bagh. Allegations levelled
against accused/respondents in the F.I.R. are that on 26 -6-2009 at about 8 -00 p.m .
younger brother of complainant namely Muhammad Khalid was coming towards his house
situated at Shin Kharh, where some persons were hidden, out of those one Abdul Bari
Mardanzai was having stick in his hand, while two other sons of Abdul Bari names whereo f
were not known by the complainant were duly armed with weapons, besides Atta
Muhammad, Din Muhammad and Raz Muhammad also attacked upon brother of
complainant, who sustained head injury. Abdul Bari and Atta Muhammad hit the victim on
waist and Raz Muhamm ad hit the victim on his hands, and Raz Muhammad hit brother of
complainant with stone on his liver. It was further alleged in the F.I.R. that in consequence of
said incident victim sustained grievous injuries and one Noor Gul was stated to be eye -
witness. Motive behind the incident was claimed to be civil dispute between the parties. At
strength of this report F.I.R. was lodged and accused/respondents were arrested. The
statements of P.Ws. were recorded by police and challan of the case was submitted befor e the
court of learned Judicial Magistrate, Muslim Bagh to face trial under section 337 -ADF Q&D
R/W 34, P.P.C.
After arrest of accused/respondents, Application No.21 of 2009 for grant of bail was
moved before learned Judicial Magistrate, Muslim Bagh, whic h was allowed vide order dated
22-7-2009. Applicant feeling dissatisfied with the bail granting order passed by Judicial
Magistrate, Muslim Bagh, filed application for cancellation of bail before Additional
Sessions Judge, Killa Saifullah which was dismissed vide order dated 12 -8-2009, hence this
application for cancellation of bail on the same grounds which pressed into service before
learned Additional Sessions Judge, has been filed before this court.
Mr. Abdul Sattar Kakar learned counsel for th e applicant/ complainant contended that
the accused persons have been nominated with specific role in the F.I.R. Learned counsel
further contended that accused/respondents are misusing the concession of bail. Third
submission was that injuries sustained by victim are serious in nature and fall under the
definition of Shajjah -i-Mudiha. "The punishment for such injury may extend 5 years and
shall also liable to Arsh". Learned counsel for the applicant/complainant further contended
that while granting bail lea rned Judicial Magistrate did not provide opportunity of hearing,
therefore, bail was illegally granted. Lastly it was contended that the learned Additional
Sessions Judge also did not take into account the nature of offence and non -entitlement of
bail to r espondents.
Mr. Abdul Ahad Kakar Advocate for respondents submitted that F.I.R. has been
lodged with unexplained delay of more than 7 days. Secondly it was contended that
statements of P.Ws. were recorded at a belated stage. He further argued that without
prejudice above grounds prosecution has failed to make out a case disentitling accused/
respondents for grant of bail. Even otherwise case against accused does not fall within ambit
of prohibitory clause. According to the learned counsel for the responden ts both orders have
been passed by competent forum as such are unexceptionable.
Mr. Abdullah Kurd Advocate for State supported the impugned orders and submitted
that accused/respondents have been granted bail by competent court of law, therefore, for
canc ellation of such order extra ordinary circumstances are required, which are missing in
this case.
I have heard arguments of learned counsel for the parties and with their help perused
available record.
In F.I.R. it has been stated by the SHO that written application for lodging of F.I.R.
has been moved on 26 -6-2009 but victim was not produced in police station on the day of
incident, therefore, complainant was asked to produce medical certificate, which according to
police report was produced on 8 -10-2009 . So this delay apparently is attributable to
prosecution and the statements of P.Ws. were recorded a day after lodging of F.I.R.
First ground pressed into service by learned counsel of applicant is of no avail, as the
F.I.R. has been lodged with inordina te and considerable delay, so the possibility of lodging
of F.I.R. after consultation and deliberation cannot be ruled out. In such circumstances mere
nomination of someone in F.I.R./complaint does not disentitle an accused to the relief of bail,
if otherw ise he/they is/are found entitled for such concession. Second ground also does not
justify cancellation, as there is no documentary proof to that effect. There is no complaint to
any competent forum disclosing any such grievance. Affidavits so filed appare ntly seem an
attempt to justify cancellation, which in my considered opinion are not sufficient to warrant
cancellation. Third submission of learned counsel is also of no help as record reveals that
State has been heard, therefore, this grievance stands re dressed.
Perusal of record reflects that learned Judicial Magistrate has exercised jurisdiction
vested in him within the framework of law, bail has been granted on merit. Learned
Additional Sessions Judge, after due application of mind, correctly conclude d that no case
for cancellation has been made out. Even otherwise once bail is granted by a competent court
then strong and exceptional circumstances are required for cancellation of bail. All
ingredients requiring cancellation of bail are lacking and miss ing in present case. I see no
reason to interfere with legal orders passed by courts below, hence application is dismissed.
The observations made hereinabove are tentative in nature, which are not to influence
merits of the case.
H.B.T./25/Q Application 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,
let us know.