Noor Khan vs State

2012 P Cr. L J 1519

[Peshawar]

Before Qaiser Rashid Khan, J

NOOR KHAN---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous B.C.A. No.22-D of 2012, decided on 24th February, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 497(2)--- Penal Code (XLV of 1860), Ss.379/427/447/506/34---Theft, mischief causing damage to the amount of fifty rupees, criminal trespass, criminal intimidation, common intention---Application for cancellation of bail---Allegation against accused and co-accused (respondents) was that they took away construction material from a land which was the subject of civil litigation between the parties---Contentions of complainant were that accused and co- accused were directly charged for the occurrence; that report had been lodged with reasonable promptitude, and that circumstances depicted the commission of offence---Validity---Main dispute between the parties was the disputed property for which both the parties were engaged in civil litigation, and alleged occurrence was a direct offshoot of the same---Charging a rival in a criminal case was not a rare phenomenon so as to extract a benefit from a civil dispute---Neither the complainant nor anybody else was a witness of the alleged theft and trespass committed by the accused and co-accused---No recovery had been effected from the accused and co-accused--- Element of mala fide on part of the complainant was evident, in circumstances, and made the matter one of further inquiry---Where bail was granted by a competent court of law, then strong and exceptional grounds were required for its cancellation, which were lacking in the present case---Neither there was any charge against the accused and co-accused for misuse of the concession of bail nor any allegation of tampering with prosecution evidence existed--- Application for cancellation of bail was dismissed, in circumstances.

Muzzafer Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 rel.

Muhammad Ismail Khan Alizai for Petitioner.

Shujaullah Khan for Respondents.

Sanaullah Shamim, D.A.-G. for the State.

Date of hearing: 24th February, 2012.

JUDGMENT

QAISER RASHID KHAN J.---Noor Khan, complainant/ petitioner, has filed this application for the cancellation of pre-arrest bail granted to Muhammad Yar and Allah Wasaya, accused/respondents Nos.1 and 2, by the learned Additional Sessions Judge-IV, D.I. Khan vide order dated 14-1-2012 in case F.I.R. No.394 dated 24-12-2011 of Police Station Paroa, District D.I. Khan registered under sections 379/427/447/506/34, P.P.C.

2.According to the report lodged Noor Khan; complainant/ petitioner, land measuring 99 kanals situated in Thatta Solhan originally belonged to Haji Shah Jehan which was in possession of Javed Iqbal and Muhammad Yar who vide, agreement deed dated 15-10-2011 had relinquished the possession in favour of Haji Shah Jehan and delivered possession of 50 kanals to him. In order to construct a room thereon, different construction materials including 900 cemented blocks valuing Rs.22,500, sand worth Rs.1,400, seven bags cement valuing Rs.2,905 and a water-tap for irrigation valuing Rs. 3,500 were placed on 18-10-2011 at 1100 hours on the spot in identified by Muhammad Yar. Habib Khan and Hussain along with five labourers were also present on the spot. On the following day, a water-tap was installed and on the third day, all the said articles were taken away by the accused/respondents and on the failure of negotiations through jirga, the complainant as special attorney of Shah Jehan reported the matter to the police on the fifth day of the occurrence i.e., on 25-10-2011. On the inaction of the police, the complainant moved an application under section 22-A, Cr.P.C. before the learned Additional Sessions Judge/Justice of Peace, who in turn directed the police to proceed under section 154, Cr.P.C. and then the F.I.R. ibid.

3.Learned counsel for the complainant/petitioner vehemently criticized the grant of pre- arrest bail to the accused/respondents by the learned court, inter alia, on the grounds that both the accused/ respondents were directly charged by the complainant, the report after negotiations was lodged with all reasonable promptitude and the circumstances depicted the commission of offence by the accused/ respondents. He, therefore, urged that the accused/respondents were not entitled to the grant of extraordinary concession of pre-arrest bail which is liable to be recalled.

4.Learned D.A.-G. supported the arguments of learned counsel for the petitioner.

5.Conversely, learned counsel for the accused/respondents defended the impugned order on the grounds that civil litigations between the parties are pending adjudication over the possession of the same land which is presently in possession of Muhammad Yar accused/respondent, while the complainant Noor Khan and Shah Jehan have claimed that Muhammad Yar accused/respondent and his son Javed Iqbal had given possession of the disputed land to Shah Jehan through deed dated 15-10-2011. They thus argued that reasonable grounds exist for believing that the accused/respondents have been falsely charged by the complainant as there are sufficient grounds for further inquiry into their matter.

6.I have carefully gone through the record of the case and considered the arguments of the learned counsel for the parties.

7.Perusal of the record depicts that the main bone of contention is the disputed property over which Shah Jehan (through Noor Khan) and the accused/respondents have locked horns and are engaged in civil litigations. The alleged occurrence is prima facie the direct offshoot of the same. In such cases, charging a rival, in a criminal case is not a rare phenomenon so as to armtwist him and extract benefit in the civil dispute. Given the fact that neither the complainant nor for that matter anybody else is a witness of the alleged theft and trespass committed by the accused/respondents nor the recovery of the alleged items have been effected from them, the element of mala fide on the part of the complainant becomes evident and thus safely takes the matter to one of further inquiry.

8.Furthermore, principles for grant of bail and its cancellation are quite different from each other. Once bail is granted by a competent court of law, then strong and exceptional grounds are needed for its cancellation which are lacking in the case in hand. Neither there is any charge of misuse of the concession of bail by the accused/respondents nor there is any allegation of tampering with the prosecution evidence against them. Therefore, the impugned order is neither perverse nor fanciful which is accordingly upheld. Wisdom is sought from Muzzafer Iqbal v. Muhammad Imran Aziz and others (2004 SCMR 231).

9.Finding no substance in this bail cancellation application, the same is hereby dismissed.

10.Before parting with this judgment, it is observed that the observations made in this order are tentative in nature and shall in no manner prejudice the proceedings during the trial of the case.

M.W.A./162/P Application dismissed.