Ajab Noor Vs Aftab Alam, etc.

A- Judgment Sheet

(Judicial Department)

Cr.Misc.BCA No.09-B/2025

Ajab Noor v Aftab Alam, etc.

ORDER

For oetitioner: Mr. Nandar Khan Advocate

For respondents: Mr. Sakhi Ullah Khan Wazir Advocate For State: Mr. Abdul Waheed, A.A.G.

Date of hearing: 18.04.2025

***d(d(

MUHAMMAD TARIO AFRIDI. J.- The petitioner / complainant Ajab Noor seeks cancellation of pre-arrest bail allowed to the respondents / accused Aftab Alam, Kamran, and Waleed by the Additional Sessions Judge-II, Bannu, vide order dated 07.02.2025, 4 rendered in case FIR No.40, dated 27.01.2025, registered under sections 352 / 506 I 337-F(iii) / 337-A(i) / 337-L(ii) I 34 PPC, at Police Station Domel, Bannu.

2.On27.01.2025, at 10:00 hours, the complainant Ajab Khan, in injured condition, lodged a report at the Emergency Ward of KGN Hospital, Bannu, stating that on the same day, at 08:30 hours, while he was inigating his land in the village, the accused Aftab and Waleed, both armed with sticks, and accused Kamran, armed with a pistol, arrived at the scene and attacked him. Resultantly, the complainant sustained injuries on his head and other body parts. The accused Kamran also resorted to aerial firing in order to criminally intimidate the complainant. After the occurrence, the accused decamped from the scene. The complainant stated that accused had no prior hostility, but alleged that the accused were dawdlers and arrogants and would often tease him. The complainant charged the

A accused for the offence, leading to registration of aforementioned

FIR.

3.Arguments heard. Record perused.

4.As per the Schedule II to the Code of Criminal Procedure, 1898, the offences under Sections 352,337-A(i), and 337-L(iD PPC are bailable, while the respondent / accused Kamran allegedly fired shots in the air seemingly intended to intimidate rather than causing death or grievous hurt to the complainant, therefore, the offence of criminal intimidation falls under First Paragraph of Section 506 PPC, which is bailable. It is a settled principle of law that in the case of bailable offences, the grant of bail is the absolute right of the accused as per the clear provisions of Section 496 Cr.P.C. Reference can also be made to the judgment rendered in the case of Naseer Ahmed and another v. The State (2009 PCT.LJ 1430 Lahore), wherein it was observed:

5.Section 496, Cr.P.C. deals with bail of the accused in bailable offences. This is an absolute legal principle subject to no exception that under the mandatory provisions of section 496, Cr.P.C., the 4 accused of bailable offence is entitled to bail as a matter of right without any application for bail. This provision of law is of no avail to the petitioners as they stand charged with non-bailable provisions of P.P.C.

5.'fhe complainant was examined by Dr. Muhammad Rehman at RHC, Domel, Bannu on January 27,2025. The medical evaluation revealed lacerations and bruises on the nasal bridge, left elbow and knee as well as swollen eye with a laceration. The Brain CT Scan showed normal result, indicating no severe head trauma. The police added Section 337-F(iii) PPC to FIR, making the case cognizable and non-bailable despite the injuries not meeting the criteria for Ghayr Jaifah (mutalahimah). This insertion of wrong section of law in the FIR suggests potential mala fide intentions on the part of the police and complainant.

6.Accused / respondent Waleed, born on March 21, 2009, is considered a Juvenile based on his educational testimonials. As a result, he is entitled to the protection and benefits afforded by the

n Juvenile Justice System Act, 2018, particularly its Section 6(3), which is reproduced for convenience and reads as under:

6.Release of a juvenile on bail. [...1

(3)Where a juvenile is arrested or detained for commission of a minor or a major offence for the purposes of this Act, he shall be treated as if he was accused of commission of a bailable offence.

7.The definitions of "major offence" and "minor offence" are outlined in Sections 2(m) and 2(o) of the Act, which are reproduced as under:

2.Definitions.---In this Act, unless there is anything repugnant in the subject or context,-

t...1

(m)"major offence" means an offence for which punishment under the Pakistan Penal Code, 1860 (Act XIV of 1860) or any other law fr for the time being in force is more than three years and up to seven years imprisonment with or without fine;

t...1

(o)"minor offence" means an offence for which maximum punishment under the Pakistan Penal Code, 1860 (XLV of 1860)or any other law for the time being in force is imprisonment up to three years with or without fine;

8.Given the legal and factual context, the application for cancellation of bail for the Juvenile accused appears to lack merit. Reliance is placed on a judgment reported as Sahib Ullah v. The State through Advocate-General Khltber Pakhtunkhwa and another

Q022 SCMR 1806).

9.The Disability Certificate dated 17.03.2023 issued by the Chairman, Medical Assessment Board / Hospital Director (MTI), Bannu, confirms that the accused Kamran's right arm was amputated above the elbow, which was also observed in Court. This physical limitation raises doubts about the aerial firing charge, suggesting it may be unfounded.

n 10. Apart from the above, the complainant has made generalized allegations against the accused, and it is yet to be determined which accused caused which specific injury to the complainant. Moreover, the question of sharing common intention by the respondents / accused cannot be determined at this stage in the attending circumstances, and this aspect is yet to be thrashed out at the trial.

11.In addition, the courts have always been slow to cancel bail already granted, as the liberty of a person cannot be curtailed on flimsy grounds. No interference with a bail granting order is required to be made unless the order is lacking in reasons or is perfunctory in nature. Once bail is granted, then, the prosecution would be required to make out a sfiong case for its cancellation by giving substantive proof of the allegations leveled. The cancellation of bail is a harsh order, because it interferes with the liberty of an individual. Hence, it shall not be resorted to lightly and power to take back an accused in I custody is to be exercised with due care and circumspection. Wisdom may be derived from Mst. Noor Habib v. Saleem Raza and others (2009 SCMR 786); Nazir Ahmad v. Muhammad Ismail and another (2004 SCMR 1160); Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others (2005 SCMR 1539); Muhammad Nawaz Khan v. Ghulam Ahmad alias Jalal Khan and another (1994 SCMR 1064); and Muzaffar lqbal v. Muhammad Imran Aziz and others (2004 SCMR 231). The principle laid down in these cases is that the considerations for cancellation of bail are quite distinct from the considerations for grant of bail.

12.In Abdul Rashid Khan v. Zalwor Ahmad Mali and others (PLD 2011 SC 2010), the Supreme Court of Pakistan has observed that once bail has been granted on merits by a competent Court, its cancellation requires strong and exceptional circumstances. In Abdul Majid Afridi v. The State and another (2022 SCMR 676), the Supreme court held that for the purpose of cancellation of bail, the following considerations are to be satisfied:

A i. If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage ofjustice.

ii. That the accused has misused the concession of bail in any manner.

iii. That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses.

lv That there is likelihood of absconsion of the accused beyond the jurisdiction of court.

v That the accused has attempted to interfere with the smooth course of investigation.

vi. That accused misused his liberty while indulging into similar offence.

vii. That some fresh facts and material have been collected during the course of investigation which tends to establish guilt of the accused.

13.Reference may also be made to the case of Muhammad Saifullah Cheema v. Umer Hayat ond others (2022 PCrLJ 1327 Lahore), in rvhich as many as five grounds, similar to the above, have been delineated.

14.As none of the above conditions is satisfied in the instant case, and the impugned order has been found to be correct in all respects, therefore, this petition is found devoid of any merit and is consequently dismissed.

Announced ul-

(Ghafoor Zaman)

JADGE

? I

(S.8.) Justice Muhammad Tariq Afridi