2017 Y L R 658
[Balochistan]
Before Jamal Khan Mandokhail and Zaheer ud Din Kakar, JJ
NAZAR KHAN---Applicant
Versus
TARIQ KHAN and 6 others ---Respondents
Criminal Bail Cancellation Application No.203 of 2015, decided on 31st October, 2016.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497(5) ---Penal Code (XLV of 1860), Ss. 302, 324, 427, 147, 148, 149 & 109 ---Anti -
Terrorism Act (XXVII of 1997), S.7---Qatl -i-amd, attempt to commit qatl- i-amd, mischief,
rioting, rioting armed with deadly weapons, unlaw ful assembly, abetment, act of terrorism---
Petition for cancellation of bail, dismissal of ---Scope ---Provisions of S.497(5), Cr.P.C. being not
punitive there was no compulsion for the cancellation of bail unless the order of bail was patently
illegal, erro neous and factually incorrect and had resulted in miscarriage of justice ---Accused
persons, in the present case, were not found to be making efforts to misuse concession of bail by
extending threats or tampering with the prosecution case ---Strong and excep tional reasons were
required for cancellation of bail ---No such element was found in the case ---Petition for
cancellation of bail was dismissed, in circumstances.
Zia-ul-Hassan Shah and another v. The State 1996 SCMR 238 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497(5) ---Penal Code (XLV of 1860), Ss. 302, 324, 427, 147, 148, 149 & 109 ---Anti -
Terrorism Act (XXVII of 1997), S.7---Qatl -i-amd, attempt to commit qatl- i-amd, mischief,
rioting, rioting armed with deadly weapons, unlawful assembly, a betment, act of terrorism---
Petition for cancellation of bail, dismissal of ---Trial was in progress and two prosecution
witnesses had been examined in the case---Ordinarily, interference was not made with the order
relating to bail, particularly in case wh en trial had commenced, so as to avoid discussion and
remarks on merits of the case---Petition for cancellation of bail was dismissed, in circumstances.
Ehsan Akbar v. The State and 2 others 2007 SCMR 482 and Mian Dad v. The State and
another 1992 SCMR 1418 rel.
Akram Shah for Applicant.
Ameer Hamza Mengal, Deputy Prosecutor General for the State.
Date of hearing: 27th October, 2016.
ORDER
ZAHEER -UD-DIN KAKAR, J. ---Through this application, the applicant/ complainant,
Nazar Khan, has sought for the ca ncellation of the bail granted in favour of private respondents
in the case FIR No. 3 of 2015 dated 30.5.2015, registered with Police Station, Kingri, district
Musakhail, in respect of the offences under Sections 302, 324, 427, 147, 148, 149, 109, P.P.C.
read with section 7 of Anti -Terrorism Act, 1997 by the learned Special Judge, Anti -Terrorism
Court, Loralai, in Bail Application No. 42 of 2015 vide order dated 26.11.2015 "the impugned
order".
2. The prosecution story as given in the impugned order briefly stated as follows: --
"Brief facts leading to filing of the instant application are that on 30 -05-2015 complainant
Nazar Khan got registered a case at Police Station Kingri with the averments therein that
he is transporter and owner of New Afghan Super Mekhtar Daewoo service and on 29-
05-2015 at 11:30 a.m. his Daewoo coach having registration No.LES/1 boarded with
passengers started for Multan from Loralai, at 2.00 p.m. when reached at Chapp Road
between Kingri and Kajoori, the accused persons Tariq Khan, D oulat Khan, Abdul Sattar,
Fazal Khan, Khairullah, Akmal, Molvi Siraj -ud-Din duly armed were found standing on
road with a Saracha vehicle and motorcycle, who started firing upon Daewoo Bus and got
damaged the bus, while due to the said firing a F.C. personnel died and two passengers
sustained injuries, while the said crime was planned by Haji Jahangir, Jahanzeb, Zahir
Khan, Bashir, Musa, Malak Abdullah, Master Muhammad Khan, Ghulam Muhammad,
Nizam and Hayat Khan and he was informed by eye -witnesses passenge rs namely Ilyas
and Fazal Muhammad. The complainant requested for taking legal action against the
accused persons and on this report the instant case was registered."
3. The learned counsel for the applicant has contended that the bail granted in favour of
private respondents being patently illegal and erroneous, is liable to be cancelled; that while
granting bail to the respondents, the learned trial Court failed to appreciate that the offences,
allegedly, committed by the respondents, fall within the prohibitory clause, therefore, the bail
granted in their favour, is liable to be cancelled.
4. On the other hand, the learned DPG adopted the arguments advanced by the learned
counsel for the applicant.
5. We have heard the arguments advanced by the learned co unsel for the parties and also
perused the available record. After giving an ardent hearing to the learned counsel for the parties,
we have straightaway noticed that no allegation has been leveled by the applicant against
respondents, either of misusing the bail or hurling any threat on the applicant. It is also an
admitted fact that the trial has already been commenced and two prosecution witnesses have
already been examined.
6. It is settled principle of law that once bail has been granted, there must be strong and
exceptional reasons for its cancellation as has been laid down in the case reported as Ehsan
Akbar v. The State and 2 others (2007 SCMR 482), in which it has been held as under:
"7. It is well settled principle of law that this Court ordinarily does not interfere with the
order of the High Court relating to bail particularly in case of murder when the trial is to
commence so as to avoid discussion and remarks on the merits of the case. But it is also
fact that for cancellation of bail, strong and exceptional grounds are required. It is to be
seen as to whether order granting bail is patently illegal, erroneous, factually incorrect
and as resulted in miscarriage of justice."
It is brought to our notice that the trial of the case is in progress, however, the same has
not been concluded as yet. In such like situation, this Court is always reluctant to interfere with
the orders relating to bail matters particularly in a case when the trial was going to commence so
as to avoid the discussion and remarks on the merits of the case as has been held in a case
reported as Mian Dad v. The State and another {1962 SCMR 1418}, wherein it has been
observed as under: --
"During hearing of the case it transpired that challan having been submitted in Court the
trial is going to commence. The learned Advocate -General has relied on Akmal Masih
and others v. Salamal Masih and 4 others 1988 SCMR 918 in support of the contention
that this court ordinarily does not consider it appropriate at the stage as in present case to
interfere with the orders of the High Court relating to bai.... particularly in cases of
murder. So far as it goes the contention raised by the learned Advocate -General has the
support of the judgment cited by him,"
Similarly in a case titled Zia -ul-Hassan Shah and another v. The State {1996 SCMR
238}, it has been observed by the Hon'ble Supreme Court as under: --
" .It may be pointed out here that in bail matters, this Court does not ordinarily interfere
with the discretion exercised by the Courts below. I f an order pertaining to bail matter
does not suffer from any legal defect which patently shakes the prosecution story, this
Court is always slow to interfere in the discretion exercised by the Court below."
7. This case pertains to year 2015 and there is no positive progress in the trial. Nothing has
been brought on the record that the accused/respondents have misused the concession of bail.
Even otherwise, the considerations in grant of bail and cancellation of bail are different. The
provisions of subsec tion (5) of section 497, Cr.P.C., are not punitive in nature and there is no
compulsion for the cancellation of bail unless the order of bail is patently illegal, erroneous and
factually incorrect and has resulted in miscarriage of justice or where the accused/respondents
were found to be making efforts to misuse concession of bail by extending threats or tampering
with the prosecution case. We failed to find any such element from the impugned order/record.
8. Without commenting upon the merits of the case, which may prejudice the case of either
party as the trial is already in progress, the learned counsel for the applicant failed to make out a
case for cancellation of bail. Resultantly, this application is dismissed.
JK/78/Bal 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,
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