Muhammad Shakil vs Chanzeb etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Cr.Misc. (BCA) No.355 -A/2014.

JUDGMENT

Date of hearing..................05.05.2016................................................

Petitioner__________________________________________________________ Respondents. ___________________________________________________ IKRAMULLAH KHAN, J.- Through the instant petition, petitioner seeks cancellation of bail granted to the accused- respondents by the learned Additional Sessions Judge-II, Mansehra vide order dated 04.07.2014 in case FIR No. 102 dated: 26.04.2014 under Sections 302 / 34 PPC registered at Police Station Saddar, Mansehra.

2.According to the FIR, the accused-respondents have been charged for causing death of deceased Ahsan.

3.I have heard learned counsel for the parties and the learned state counsel, in light of law and evidence on record.

4.Accused were charged in the case FIR in hand, only on the basis of that, on one hand, the deceased was strong sentiment to marry the daughter of the accused, while on the other hand, the dead body was found on the ground path leading to the village, but nearer to the residential house of the accused

and also, that accused Chanzeb had threatened the complainant for dire consequences in order to murder his son, the deceased.

5.No one had witnessed the occurrence, which had taken place at odd hours of the night as per post mortem report. The weapon of offence found at the place of occurrence was found to be in non-workable condition. The complainant party did not come to search his son though the whole night had passed, while the deceased was lying at the open and visible place, which was the main useable path leading to the house of complainant party also. No empty had been found on the place of occurrence, while the person, who had recognized the dead body, had stated that he had recovered a letter therefrom the deceased which had missing, while the charring and blackening marks on the sole entry wound resulted into death of the deceased has made the case against the accused that of further inquiry, despite the fact that no any finger print on the weapon of offense was detected to be either of the deceased or accused, while the same was found by the expert to be in non-workable condition.

6.The consideration for bail and its cancellation, once granted by a court of competent jurisdiction on reasonable grounds are altogether different.

7.It is settled law that provisions of section 497 (5) Cr.P.C were not punitive in nature and there is no compulsion for

cancelling bail, unless bail granting order was patently illegal, erroneous, factually incorrect and had resulted into miscarriage of justice or where accused was found to be making efforts to misuse the concession of bail by either extending of threats or likelihood of tempering with persecution evidence.

8.Bail should never be withheld as a punishment, however, in peculiar facts and circumstances of a case, if the bail granting order on the face of the available record was found to be perverse, erroneous, factually incorrect resulting into gross miscarriage of justice or has been extended in violation of the established principle for grant of bail, enunciated by Apex Court where exceptional grounds were palpable on the face of it, the Court may recall or cancel the same to fulfill the end of justice.

9.In case in hand, the investigation has already been completed and the bail cancellation petition is pending before this court for the last more than two years, without any progress and for such reason, the regular trial has not been commenced, which otherwise, has crossed the statutory period, prescribed for conclusion of trial. At this belated stage , where the case against the accused is otherwise that of further inquiry, while not an iota of evidence on record suggest that the accused either have misused the concession of bail or they have made any attempt to temper with the prosecution evidence, while on the

contrary, the learned court below has granted bail to the accused thereafter, proper appreciation of law and evidence on record, the bail granted to the accused by competent court of law could not be cancelled, where, the learned counsel for the complainant as well as the learned state counsel did not point out any illegality in the bail granting order.

10.For the afore-stated reasons this bail cancellation petition is dismissed accordingly

Announced:

JUDGE

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