Strong grounds are required for cancellation of bail
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This case from the Peshawar High Court dealt with a request to cancel bail that had already been granted to an accused person. The accused, Respondent No. 1, had been named in a criminal case involving allegations of theft, criminal intimidation, kidnapping, and related offences. He had been granted pre-arrest bail by a trial court. The complainant then approached the High Court asking that this bail be cancelled, arguing that the accused was specifically named in the police report, that the offences were serious in nature, and that he was still needed for further investigation.
The High Court refused to cancel the bail. It explained that cancelling bail already granted requires much stronger justification than what is needed to grant bail in the first place, since the two situations involve different legal considerations. If bail is wrongly refused, the wrongly jailed person cannot be compensated even if later found innocent, whereas if bail is wrongly granted, the situation can still be corrected through conviction after trial. The court noted there was an unexplained delay in filing the police report, no independent witnesses, no recovery of evidence from the accused, and no proof that he had misused his bail or was likely to flee, especially since he was a government servant. Simply being named in the FIR was not enough to deny bail. The petition was dismissed, reaffirming the principle that courts should rarely interfere with bail once properly granted.
پشاور ہائی کورٹ کا یہ مقدمہ ایک ایسی درخواست سے متعلق تھا جس میں ملزم کو پہلے سے دی گئی ضمانت منسوخ کرنے کی استدعا کی گئی تھی۔ ملزم، جو مدعا علیہ نمبر 1 تھا، ایک فوجداری مقدمے میں نامزد تھا جس میں چوری، مجرمانہ دھمکی، اغوا اور دیگر متعلقہ جرائم کے الزامات شامل تھے۔ اسے ٹرائل کورٹ کی جانب سے دوران گرفتاری ضمانت (پیشگی ضمانت) دی جا چکی تھی۔ مدعی نے ہائی کورٹ سے رجوع کرتے ہوئے استدعا کی کہ یہ ضمانت منسوخ کی جائے، اور دلیل دی کہ ملزم کو پولیس رپورٹ میں واضح طور پر نامزد کیا گیا ہے، جرائم کی نوعیت سنگین ہے، اور مزید تفتیش کے لیے اس کی ضرورت باقی ہے۔
ہائی کورٹ نے ضمانت منسوخ کرنے سے انکار کر دیا۔ عدالت نے وضاحت کی کہ پہلے سے دی گئی ضمانت کو منسوخ کرنے کے لیے اس سے کہیں زیادہ مضبوط جواز درکار ہوتا ہے جتنا کہ ابتدائی طور پر ضمانت دینے کے لیے درکار ہوتا ہے، کیونکہ دونوں صورتوں میں قانون
Generated from the full judgment text below — not a substitute for reading the actual opinion.
PLJ 2014 Cr.C . ( Peshawar ) 137 Present: Malik Manzoor Hussain , J. Maj. (R) MUHAMMAD HAMAD AHMAD--Petitioner versus ZIA-UR-REHMAN and another--Respondents Cr.Misc . No. (BCA) 1311-P of 2013, decided on 4.11.2013. Criminal Procedure Code, 1898 (V of 1898)-- ----S. 497(5)--Pakistan Penal Code, (XLV of 1860), Ss. 382/506/365/511/ 342/148/149--Cancellation of bail--Cancellation of bail granted by a competent Court of jurisdiction, very strong, extraordinary and cogent reasons are required as the considerations for grant of bail and cancellation of the same are totally different--Bail granted wrongly can be cured by punishing the accused after the trial but if his guilt is not proved, there cannot be any compensation if a bail is wrongly refused--This is the reason why the Courts are generally reluctant to cancel the bail as the discretion exercised in favour of accused cannot be interfered with unless there are strong and exceptional grounds warranting interference--No perversity was found in the impugned order and no exceptional circumstances has been brought to the notice of the Court--No case for cancellation of bail was made out--Mere nomination of accused in the FIR would not disentitle him from the relief of bail if otherwise, he was entitled for the concession of the same--As per record the respondent/accused was a government servant and there were no chances of his abscondence --Furthermore, the accused has not been shown to have misused the concession of bail--Petition dismissed. [P. 139] A Mr. Saif Ullah Khalil , Advocate for Petitioner. Date of hearing: 4.11.2013. Order Through instant application, the petitioner seeks cancellation of bail granting order dated 19.09.2013, passed by learned Addl : Sessions Judge-XI, Peshawar whereby the Respondent No. 1 was released on bail, in case FIR No. 956 dated 09.09.2013, u/Ss. 382/506/365/511/342/148/ 149, PPC, P.S. Hayatabad , Peshawar.
2. As per contents of FIR, the petitioner/complainant, on the strength of written application dated 5.9.2013 lodged a report against the Respondent No. 1 for committing offence under the provisions of law mentioned above.
3. The respondent moved an application for bail before arrest, which was allowed vide order dated 19.09.2013, hence the instant petition for cancellation of the same.
4. Learned counsel for petitioner contended that the Respondent No. 1 is directly charged in the FIR and a specific role has been attributed to him. He further contended that no mala fide or ulterior motive on behalf of petitioner/prosecution has been pointed out in the application as well as in the bail granting order. Thus the same is against the settled principle laid down by the Superior Courts. He further contended that co-accused are still absconder and the respondent is also required for investigation/interrogation and the offence for which the respondent is charged are of heinous nature and also comes within the definition of moral turpitude. Thus the respondent was not entitled for extra-ordinary relief. Arguments heard and with the valuable assistance of learned counsel for petitioner, the record perused.
5. From the perusal of record, it reveals that the occurrence was allegedly taken place on 3.9.2013 and as per application of complainant, the local police came to spot on that very day but astonishingly the report was lodged on 6.9.2013 with an unexplained delay of 3 days. There is a dispute between the parties and the occurrence took place at the office of respondent/accused. It is yet to be determined at the trial that who was aggressor and who has been aggressed upon, so far there is no independent witness who has narrated in support of the allegations levelled by the complainant. The District Public Prosecutor has directed the prosecution agency to complete the investigation within 14 days and ensure submission of challan but so far two months have been lapsed and not a single step has been taken by the prosecution to submit challan . No recovery has been effected from the respondent/accused and he has not been nominated by independent PWs and only there are vague allegations against the unknown persons.
6. It is by now well settled that for cancellation of bail granted by a competent Court of jurisdiction, very strong, extraordinary and cogent reasons are required as the considerations for grant of bail and cancellation of the same are totally different. Bail granted wrongly can be cured by punishing the accused after the trial but if his guilt is not proved, there cannot be any compensation if a bail is wrongly refused. This is the reason why the Courts are generally reluctant to cancel the bail as the discretion exercised in favour of accused cannot be interfered with unless there are strong and exceptional grounds warranting interference. No perversity was found in the impugned order and no exceptional circumstances has been brought to the notice of the Court. No case for cancellation of bail is made out. Mere nomination of accused in the FIR would not disentitle him from the relief of bail if otherwise, he was entitled for the concession of the same. As per record the respondent/accused is a government servant and there are no chances of his abscondence . Furthermore, the accused has not been shown to have misused the concession of bail. Under the circumstances, the instant petition being devoid of any force, is dismissed in limine . (A.S.) Petition dismissed