Noor Zaman vs Shams-ul-Haq

2011 M L D 1252

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

NOOR ZAMAN---Petitioner

Versus

SHAMS-UL-HAQ and another---Respondents

Criminal Miscellaneous B.C.A. No.128 of 2011, decided on 29th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd and attempt to commit qatl-e-amd---Cancellation of bail, petition for---Cross case in which the place and time of occurrence was the same two persons had lost their lives, one on each side---Two accused in the case had been released on bail on the same grounds of cross versions---Bail in the cases of counter version, one given by the complainant and the other by opposite party, was normally granted on the ground of further enquiry as provided in S.497(2), Cr.P.C.--- Considerations for grant and cancellation of bail were entirely different from each other--- Once bail was granted to accused, very strong and cogent grounds were required to recall the bail granting order, like the bail granting order was patently illegal, erroneous, factually incorrect; or accused who was granted bail, had misused the concession of bail, or interfered in the course of investigation, or attempted to tamper with the prosecution evidence or threatened the witnesses or was indulged in the similar activities---Any one or more such grounds, if established on the record, the court without any hesitation could recall the concession of bail extended to accused---Court considering the bail cancellation application, could also consider any other ground which in the opinion of the court was sufficient for cancellation of bail in the peculiar circumstances of the case---Complainant in the case having failed to point out any of the said grounds, applications for cancellation of bail were dismissed, in circumstances.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 and The State/Anti-Narcotic through Director-General v. Rafiq Ahmad Channa 2010 SCMR 580 ref.

Zia-ur-Rehman Tajik for Petitioner.

Obaid Razzak, Addl. A.G. Peshawar for the State.

Sakhi Janan for Respondent No.1.

Date of hearing: 29th April, 2011.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The complainant in case F.I.R. No.343 Police Station, Karak has moved separate Bail Cancellation Applications against the accused/respondents by impugning two different bail granting orders dated 21-12-2010 and 24-11-2010 by alleging that the learned Addl. Sessions Judge, Karak while making the order of release of accused on bail has acted illegally, unlawfully and capriciously as the reasons given by the learned Judge in the circumstances of the case are not sufficient to release the accused in a case where a person has lost his life and thereby requested for recall of the impugned orders.

2.As against that the learned counsel for the accused/respondents submitted that it was a cross case of even date F.I.R. No.342 registered under sections 302/324/34, P.P.C., the place of occurrence and time of occurrence is the same in both the cases. Both the parties reached the hospital along with the bodies of their victims almost at the same time, as is established from the contents of the F.I.R. So, the bail granting order is quite in accordance with the law as the perusal of both the cases at this stage would not establish the fact that who was the assailant and who acted in defence; the only course left for the lower court was to release the accused/petitioner on bail in both the cases. The petitioner himself an accused in the above referred cross case was also released on bail on this ground. So the present application being meritless is liable to dismissal. Placed reliance on the cases of Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others (1996 SCMR 1845) and The State/Anti-Narcotic through Director-General v. Rafiq Ahmad Channa (2010 SCMR 580).

3.The learned Addl. A.-G. present in court also supported the stance of the accused/respondents.

4.Learned counsel for the parties and learned A.A.-G. for the State were heard and record of the case was perused.

My this single judgment will dispose of both the Criminal Miscellaneous Applications.

5.The perusal of the record would establish the fact that an occurrence took place between the parties wherein two persons lost their lives, one on each side. The perusal of the record of both the cases would further establish the fact that time of occurrence and place of occurrence are the same. The petitioner was also one of the accused in case F.I.R. No.342 who was released on bail on the same ground of cross version and the accused/respondent in the present case have also been released on the same grounds as the courts considering their bail applications were unable to determine about the assailing party at such an initial stage of the case. Such a situation makes the case of both the parties, as that of further inquiry and on the same ground both the parties have been dealt with by the courts accordingly. It is an established and settled law of the land that bail in the cases of counter versions, one given by the complainant and the other by the opposite party, is normally granted on the ground of further enquiry as provided in section 497(2), Cr.P.C. Reliance in this regard could be placed on the cases of Shoaib Mehmood Butt and Rafique Ahmad Channa (supra).

6.The law regulating the cancellation/recall of bail granting order has also been settled by the verdicts given by the superior courts of the land. Considerations for grant and cancellation of bail are entirely different from each other. Once bail is granted to an accused, then very strong and cogent grounds are required to recall the bail granting order like the bail granting order is patently illegal, erroneous, factually incorrect or the accused who was granted bail has misused the concession of bail or interferes in the course of investigation or attempts to tamper with the prosecution or threatens the witnesses or is indulged in the similar activities. Any one or more such grounds if established on the record, then the court without any hesitation can recall the concession of bail extended to the accused. The court considering the bail cancellation application can also consider any other ground which in the opinion of the court is sufficient for cancellation of bail in the peculiar circumstances of the

case. The complainant in the present case has failed to point out any of the above said grounds. Hence both the cancellation petitions being meritless are hereby dismissed as such.

H.B.T./179/P Petition dismissed.