Ahmad Ali Jan vs Irfan

2012 P Cr. L J 1119

[Peshawar]

Before Waqar Ahmad Seth, J

AHMAD ALI JAN---Applicant

versus

IRFAN and another---Respondents

Criminal Miscellaneous Bail Cancellation Application No.1802 of 2010, decided on 16th March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(5)--- Penal Code (XLV of 1860), Ss. 302/324/337-F(vi)/34---Qatl-e-amd, ghayr- jaifah munaqqillah, attempt to commit qatl-e-amd, common intention---Application for cancellation of bail---Bail granting order and cancellation of bail were to be dealt with different yardsticks---Accused, in the present case, had been on bail since the last about fifteen (15) months and since then there was not a single document showing that accused had misused the concession of bail, nor there was anything on record which showed that some new facts and circumstances existed which could implicate the accused---One of the co- accused was on bail, while the other had been acquitted by the court below under S.265-K, Cr.P.C., and accused was similarly charged as the said co-accused--- Accused had remained an absconder but abscondence itself could not be a ground for conviction---Complainant had contended that no notice was given to him for the hearing of grant of bail proceedings, but bail granting order revealed that complainant was issued notice and he remained absent---Accused was not required by the prosecution for further investigation, challan against him was complete and he had been granted bail by a competent court of law-- -High Court found no reason to recall the bail granting order, therefore, bail cancellation application was dismissed.

Khaled Rehman for Petitioner.

Atiqur Rehman and Qazi Baber Irshad for Respondents.

Ms. Abida Safdar for the State.

Date of hearing: 16th March, 2012.

JUDGMENT

WAQAR AHMAD SETH, J.---The instant bail cancellation petition under section 497(5), Cr.P.C. against the order dated 20-10-2010 of learned Additional Sessions Judge-III, Peshawar whereby Irfan son of Noor Muhammad respondent was allowed bail in case F.I.R. No.147 dated 10-4-2006 for commission of an offence punishable under sections 302/337-F(vi)/324/34, P.P.C. Police Station, Pishtakhera, Peshawar.

2.According to prosecution story, petitioner/complainant charged the accused/respondent along with two co-accused for committing murder of one Rahmat Ali and also for ineffective firing upon him, who however, escaped unhurt. Motive behind the occurrence is stated to be an altercation between the parties over the children quarrel.

3.Learned counsel for the petitioner contended that the bail granting order of respondent No.1 passed by the learned Additional Sessions Judge-III, Peshawar is factually incorrect and legally not sustainable hence liable to be set aside; that respondent No.1 is charged with heinous crime of murder and attempt to commit murder which is punishable with death, hence the learned lower court while granting bail has dealt with the case in a very light and cursory manner which is against the judicial dispensation of justice; that the respondent No.1 is threatening the petitioner with death and the life of the petitioner is in serious danger due

to the release of respondent No.1, who is misusing the concession of bail; that respondent No.1 remained absconder for nearly four and a half year and it is a settled principle of law that fugitive looses his normal rights and unexplained notable abscondence disentitles accused for the concession of bail; that the accused/respondent No.1 is directly charged and the petitioner/complainant is the eye-witness of the occurrence, thus the bail granting order is perverse.

4.As against this, learned counsel for respondent No.1 contended that the allegations against the respondent No.1 are evasive in nature and the present application is after 15 months from the bail granting order and during this time respondent No.1 has not misused his bail and there is nothing on record to this effect; that one of the co-accused namely Riaz Ahmad with identical role has already been acquitted under section 265-K, Cr.P.C. while another co-accused namely Noor Muhammad with similar role was allowed bail, thus the rule of consistency existed, therefore, the learned lower court very rightly allowed the bail to the respondent No.1. Learned counsel for the State supported the arguments of learned counsel for respondent No.1.

5.Arguments heard and record perused.

6.Without dilating upon the evidence and material on record, it is observed that bail granting order and bail cancellation are to be dealt with different yardstick. The respondent No. 1 was allowed bail on 20-10-2010 and since then till today there is not even a single document showing that respondent No.1 has misused the concession of bail nor there is anything on record that there exist some new facts and circumstances which can implicate the respondent No.l. Riaz Muhammad one of the co-accused in the case filed an application under section 265-K, Cr.P.C. and the learned Additional Sessions Judge, in chair allowed the said application vide order dated 12-9-2008 while thrashing out the evidence against the said accused whereby he acquitted him from the charge. Respondent No.1 is similarly charged.

7.Learned counsel for the petitioner also contended that no notice to the aggrieved/complainant party was given as notice in such cases at bail stage is mandatory while relying on 2004 PCr.LJ 968 and referred to the abscondence period of the respondent No.1 that the fugitive from law who deliberately avoid to face investigation, should not be granted bail liberally while relying on 1999 PCr.LJ 616. As per record, the complainant was issued notice but he remained absent, first two lines of the bail granting order dated 20-10- 2010 are referred and the correctness of the court order is there. As regarding the abscondence, no doubt respondent No.1 remained absconder but abscondence itself cannot be a ground for conviction. Moreover, in the instant case, respondent is not required to the prosecution for further investigation etc, specially in the circumstances when there is no evidence of misuse of concession of bail, challan is complete and bail was granted by competent court of law and other two co-accused one is on bail and the other one is acquitted under section 265-K, Cr.P.C.

8.I feel no reason to recall the bail granting order, therefore, the instant bail cancellation application is dismissed.

M.W.A./96/P Application dismissed.