Fazal Rabi vs Nasim Akhtar

2013 P Cr. L J 595

[Peshawar]

Before Waqar Ahmad Seth, J

FAZAL RABI---Petitioner

Versus

NASIM AKHTAR and another---Respondents

Criminal Miscellaneous Bail Cancellation Application No.132-P of 2012, decided on 2nd November, 2012.

(a)Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 452, 427, 380, 148 & 149---House trespass after preparation for hurt, assault or wrongful restraint, mischief causing damage to the amount of fifty rupees, theft in dwelling house, rioting armed with deadly weapons, unlawful assembly--- Petition for cancellation of bail, dismissal of---Accused had been granted bail by Trial Court on the basis that no recovery of any article had been made from his direct possession; that neither any independent witness of the occurrence nor anyone else had seen the accused taking away the articles or destroying them, and that the offence did not attract the prohibitory clause of S.497, Cr.P.C---Reasons recorded by Trial Court for granting bail seemed to be reasonable and same were tentative in nature, which established a case of further inquiry---No document or record had been produced to show that accused had misused his bail---Investigation of the case was finalized and challan had been submitted, therefore, physical custody of accused was no more required for purposes of investigation---Petition for cancellation of bail was dismissed in circumstances.

Muzaffar Iqbal v. Muhammad Imran Aziz 2004 SCMR 231; 2009 SCMR 786 and 2008 SCMR 1715 ref.

(b)Criminal Procedure Code (V of 1898)---

----S. 497(5)---Bail, cancellation of---Grounds and principles.

The bail can be cancelled when;-

(i)Exceptionally strong grounds such as abuse/misuse of concession of bail exist;

(ii)A Court cannot cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under section 497(1), Cr.P.C. the discretion is left in the Court under section 497(5), Cr.P.C.

(iii)Grounds for cancellation of bail are pari materia with the principles which apply to setting aside the orders of acquittal.

(iv)Bail can be recalled where the person on bail repeats the offence;

(v)Hampers the investigation;

(vi)Makes some efforts to tamper with the evidence;

(vii)Commits some acts of violence against the police;

(viii)Prosecutes the witnesses;

(ix)Manages to flee away from the country or beyond the control of sureties;

(x)Order of bail has been obtained through misrepresentation or suppression of facts.

The grounds and principle for grant of bail are totally different from the ground and principle for cancellation of bail already granted to an accused.

Wali Khan Afridi for Petitioner.

Sahib Zada Riazatul Haq for Respondents.

Date of hearing: 2nd November, 2012.

JUDGMENT

WAQAR AHMAD SETH, J.---Petitioner Fazal Rabi filed this application for cancellation of bail of accused/respondent Nasim Akhtar who was granted bail vide order dated 16-8-2011 of learned Additional Sessions Judge-XI, Peshawar in case F.I.R. No.504 dated 7-12- 2010 under sections 380/452/427/148/149, P.P.C. Police Station, Mattani, Peshawar.

Arguments heard and record perused.

2.The accused/respondent was granted bail on tentative assessment made by competent court of law and on the facts/merits that no recovery of single article has been made from the direct possession of the accused/respondent and that there is no independent eye-witness of the occurrence nor anyone has seen the accused/respondent taking away the alleged articles or its destruction coupled with usurpation of the articles. The offence for which the accused/respondent has been charged does not attract the prohibitory clause of section 497, Cr.P.C.

3.According to legal maxim "in favorem vitae, libertatis et, innocientiae omnia preasumuntur" (all presumptions are in favour of life, liberty and innocence), moreover, unless and until the charge is proved everyone is innocent and no one can be put behind the bars as punishment.

4.The reasons recorded by the trial Court for the grant of bail seems to be reasonable and the same are tentative in nature which establish a case of further inquiry, thus, the learned trial Court allowed the concession of bail on the basis of further inquiry, lawfully.

5.Even otherwise, once discretion has been exercised by the court of competent jurisdiction, then the same cannot be reversed or recalled until and unless the same is either perverse or illegal. For cancellation of bail, strong and cogent reasons are required to be furnished, which are lacking in the instant case. In such like cases, evidence is appreciated in different perspective as compared to those, wherein, bail is sought.

6.The bail can be cancelled when;-

(i)Exceptionally strong grounds such as abuse/misuse of concession of bail exist;

(ii)A Court cannot cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under section 497(1), Cr.P.C. the discretion is left in the Court under section 497(5), Cr.P.C.

(iii)Grounds for cancellation of bail are pari materia with the principles which apply to setting aside the orders of acquittal.

(iv)Bail can be recalled where the person on bail repeats the offence;

(v)Hampers the investigation;

(vi)Makes some efforts to tamper with the evidence;

(vii)Commits some acts of violence against the police;

(viii)Prosecutes the witnesses;

(ix)Manages to flee away from the country or beyond the control of sureties;

(x)Order of bail has been obtained through misrepresentation or suppression of facts.

7.In view of the above, now it is a settled proposition of law that the grounds and principle for grant of bail are totally different from the ground and principle for cancellation of bail already granted to an accused. The only point required to be considered in the instant cancellation petition is that the bail concession is misused or there is apprehension of tampering of evidence by the accused. Strong and exceptional grounds are to be proved for cancellation. The Hon'ble Supreme Court of Pakistan in the case of Muzaffar Iqbal v. Muhammad Imran Aziz etc., reported in 2004 SCMR 231 has held as under:--

"It is well-settled by now that "considerations for the cancellation of bail are different from the considerations for the grant of bail. Section 497(1), Cr.P.C. prohibits the grant of bail for offences punishable with death or imprisonment of ten years or over. Section 497(5), Cr.P.C. does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under section 497(1), Cr.P.C. the discretion is left with the Court under section 497(5), Cr.P.C. which is pari materia with the principles which apply to the setting aside of the orders of acquittal". (Mian Dad v. The State 1992 SCMR 1289). In view of what has been mentioned hereinabove, it is not a fit case for cancellation of bail as strong and exceptional grounds are needed to get it cancelled which are not available."

8.Similar principles have been laid down in 2009 SCMR 786. The observations of the Apex Court as follows:--

"It needs no reiteration that the considerations for the grant of bail are quite distinct from

the considerations for the cancellation of bail. Once bail has been granted by a competent Court of law strong and exceptional grounds are required for cancelling the same as held by this Court on a number of occasions. It is to be' seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice."

9.The same principles are adopted by the apex Court in 2008 SCMR 1715 wherein it has been held that:--

"It needs no reiteration that for cancellation of bail, strong and exceptional grounds are required. 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. It is to he seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice."

10.Learned counsel for the petitioner has not produced any record or document showing that the accused/respondent has misused the bail. I have gone through the record according to which the investigation of the case had been finalized and challan has been submitted, therefore physical custody of the accused is not required for the purpose of investigation.

11.Learned counsel for the petitioner has not been able to point out any illegality, or jurisdictional defect in the bail granting order, therefore, I do not find any good ground/justification to cancel the bail already granted to the accused-respondent by the court of competent jurisdiction, hence this petitions being devoid of any legal merit is dismissed accordingly.

12.It is, however, clarified that observations made herein are just tentative in nature and strictly confined to the disposal of this petition in near future, if at all, petitioner lay his hands on any document showing that respondent has misused the concession of bail, during the trial proceedings, he may file fresh petition.

MWA/397/P Petition dismissed.