2020 P Cr. L J 338
[Balochistan]
Before Rozi Khan Barrech, J
AMAN UD DIN---Applicant
Versus
MUHAMMAD KHAN and others ---Respondents
Criminal Bail Cancellation Application No. 462 of 2019, decided on 24th September, 2019.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497(5) ---Penal Code (XLV of 1860), Ss. 324, 337- F(ii), 147, 148 & 149---Attempt to
commit qatl- i-amd, badi'ah, rioting, armed with deadly weapon, common object ---
Cancellation of bail, application for ---Accused did not intend to commit qatl -i-amd---
Completion of investigation ---Scope ---Allegation against accused persons was that they
forcibly tried to take their uncle with them and started firing ---Complainant, his brother and
other people intervened and main accused opened fire with pistol a nd caused bullet injuries
on the right foot ankle of the complainant while the other accused persons beaten him with
fists and kicks ---Accused though had been charged directly in the FIR but he had only been
charged for firing one shot at the victim and specific role had been attributed to the main
accused ---Accused had not repeated the fire when the victim was completely at his mercy ---
Prima facie there appeared to be no intention on the part of the accused to cause death of the victim--- Injuries were not caused on the vital parts of the body ---Question of applicability of
S. 324, P.P.C. or that of S. 337- F(ii), P.P.C. had to be determined after examination of
complainant and prosecution witnesses ---Investigation had been completed ---No recovery,
whatsoever had been effected and challan of the case had already been submitted before the
Trial Court ---Incarceration of accused would serve no useful purpose especially when there
was no allegation of mis -use of concession of bail granted to the accused persons ---
Discretion exercised by the trial court in granting post arrest bail to the accused persons was not arbitrary or against the settled principles of law, hence, did not require interference by High Court ---Application for cancellation of bail was dismissed.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497(5) ---Cancellation of bail--- Principles ---Bail can only be cancelled if bail granting
order appears to be perverse and gross illegality has been committed--- 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 an order of bail is required to be made whe n
the same lacks reasons or is perfunctory in nature---Once bail has been granted, the prosecution was 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 cancella tion 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.
2009 SCMR 786; 2004 SCMR 1160; 2005 SCMR 1539; 1994 SCMR 1064 and 2004
SCMR 231 ref.
Khushal Khan Kasi for Appellant.
Saeed Ahmed Kakar and Wajahat Khan Ghaznavi, State counsel for PG.
Date of hearing: 20th September, 2019.
ORDER
ROZI KHAN BARRECH, J. ---By means of this application, the
applicant/complainant has challenged the order dated 04.04.2019 (hereinafter "the impugned Order") passed by learned Sessions Judge Killa Abdullah, Chaman, (hereinafter "the trial Court"), whereby the respondents Nos.1 and 2 were granted post arrest bail in Crime No.25
of 2019 for an offence under sections 324, 147, 148 and 149, P.P.C. registered at Levies Thana, Chaman.
2. The facts - in brief necessary for disposal of the instant application are that the
complainant/applicant is residing at Bye -pass Road Chaman. On 01.03.2019 the NADRA
Van came to his house and one Mehrban who is uncle of accused persons along with other accused persons were receiving tokens for processing their CNICs, in the meanwhile at about 1:45 p.m., t he accused/respondents Nos.1 and 2 along with other persons who were heavily
armed came and forcibly tried to take Mehrban with them and started fighting. The complainant, his brother and other people intervened and respondent No.1 opened fire with pistol and caused bullet injuries on the right foot ankle of applicant while the other accused
persons beaten him with fists and kicks.
3. After registration of FIR, the accused/respondent Nos.1 and 2 were arrested, who
moved an application for grant of bail afte r arrest and the same was granted on 04.04.2019.
Hence this application.
4. I have heard the learned counsel for the applicant/complainant and learned State
Counsel and perused the available record with their assistance.
5. It is settled that bail can only be cancelled if bail granting order appears to be
perverse and gross illegality has been done. 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 a lready granted as the liberty of a person cannot be curtailed on flimsy
grounds. No interference with an order of bail is required to be made unless the order lacks in reasons or is perfunctory in nature. Once bail has been granted, the prosecution should
make out strong case for cancellation not by making allegation alone but by giving
substantive proof of such allegation. The cancellation of bail is harsh order because it interferes with liberty of and individual hence it must not be restored to lightly a nd power to
take back in custody is to be exercised with due care and circumspection. In this behalf, I am also fortified by the dictums laid down by the Hon'ble Supreme Court reported in 2009
SCMR 786, 2004 SCMR 1160, 2005 SCMR 1539, 1994 SCMR 1064 and 2004 SCMR 231 in
which it was held that considerations for cancellation of bail are quite distinct from the
considerations for grant of bail. Once bail has been granted by a competent Court of law, strong and exceptional grounds are required for canceling 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.
6. No doubt, the accused/respondents have been charged directly in the FIR and specific
role has been attributed to the accused/respondent No.1, but he has been only charged of firing one shot at the victim. He has not repeated the fire when the victim was completely at his mercy. Prima facie there appears no intention on the part of accused/respondents to cause death or Qatl -i-amd of the victim. The injuries have been found on the right foot ankle of the
victim which is not vital part of the body. It is yet to be seen if the accused intended to kill
the victim. The question of applicability of section 324 or that of 337- F(ii), P.P.C. is still to
be determined at the trial stage after examination of the complainant and prosecution
witnesses. The investigation has already been completed. No recovery whatsoever has been effected and challan of the case has a lready been submitted before the trial Court, thus, it
would not be proper to send the accused behind the bars as it cannot serve any useful purpose, specially when there is no allegation of mis -exercise of concession of bail granted
to the accused/respond ents. The discretion exercised by the learned Sessions Judge, Killa
Abdullah at Chaman in granting post arrest bail to the accused/respondents Nos.1 and 2 is not arbitrary or against the settled principle of law, hence does not require interference by this Court.
In view of the above discussion, the instant application being devoid of merits is
dismissed.
It needs not to iterate that the observation made herein above are tentative in nature
and shall not affect the merits of the case.
SA/108/Bal. Petitio n 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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