Asimullah Vs The State,

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.