QASIM KHAN vs SHARAFAT KHAN and another
This criminal petition arises out of an order passed by the Court of Sessions upholding the grant of pre-trial bail to the respondent accused involved in a case registered under Sections 419 and 420 of the Pakistan Penal Code. The core legal question before the High Court was whether the bail granted by the lower forums warranted cancellation under Section 497(5) of the Code of Criminal Procedure. The Peshawar High Court held that once a court of competent jurisdiction has exercised its discretion to grant bail, very strong and exceptional grounds—such as misuse of concession, tampering with evidence, or fleeing—are required to recall it, which were absent in this case. The Court dismissed the petition, laying down the principle that considerations for the cancellation of bail are distinct from those for its initial grant, and that offences not falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure, coupled with a case of further inquiry, justify sustaining bail.
- What grounds are required to cancel bail once granted by a court of competent jurisdiction?
- Are the considerations for the cancellation of bail different from the considerations for the grant of bail?
- Does Section 497(5) of the Code of Criminal Procedure command the court to mandatorily cancel bail for offences punishable with death or imprisonment for life?
- Section 419, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
- Section 497(5), Code of Criminal Procedure 1898
Sharafat Khan respondent is one of the accused persons involved in Case F.I.R. No, 4 registered at Police Station Teri (Karak District) on 1.9.2002 at the instance of Qasim Khan complainant for offences under Section 419/420 PPC.
2. The respondent moved an application in the Court of Civil Judge/Judicial Magistrate Banda Daud Shah for grant of bail which was accepted through order dated 21.3.2003 and the respondent was admitted to bail. Feeling aggrieved, the complainant moved the Court of Sessions Karak for cancellation of bail granted to the respondent per the order dated 21.3.2003 which was rejected by virtue of order dated 4.4.2003 on the ground that case of the respondent is that of further inquiry and none of the sections of law with which the respondent is charged falls within the prohibitory clause of Section 497 Cr.P.C.
3. Qasim Khan petitioner has approached this Court with the similar prayer and in support of the application it is submitted by Haji Muhammad Zahir Shah, Advocate for the petitioner that sufficient material was available on the file to show that the respondent had a hand in the affair and that the Courts below had no good reason to exercise discretion in favour of the respondent and admit him to bail holding that case of the respondent is that of further inquiry and entitles him for grant of bail.
4. Mr. Abdul Maabood Khattak, Advocate for Respondent No, 1, supported the impugned order and reiterated that keeping in view the delay in lodging of the report, role attributed to the respondent and grant of bail to accused Aman Gul, the Courts below had valid reasons to allow bail to the respondent and the impugned order hardly calls for interference of this Court. He relied on Muzaffar Iqbal Petitioner vs. Muhammad Imran Aziz and others respondents (2003 Cr.L.J. 140 Supreme Court), Abdul Ghaffar etc. accused-petitioners vs. The State and. Gulzar Ahmad respondents (2002 Cr.L.J. 643 Abbottabad), Muhammad Azam Petitioner vs. Asghar etc. respondents (2001 Cr.L.J. 217 Lahore) and Mst. Salih Sabba petitioner vs. Said Miraj and another respondents (PLJ 2002 Cr.C. Peshawar 1377).
5. Mr. Adnan Saboor Rohalla, Advocate learned State counsel, on the contrary adopted the arguments of learned counsel for respondent and supported the impugned order, maintaining that bail has been granted to respondent for valid reasons and no case for cancellation of bail has been made out.
6. Having heard the arguments of learned counsel for the parties with reference to the material available on the file, I find that respondent has been extended the concession of bail for valid reasons and the impugned order hardly calls for interference of this Court. It needs no reiteration that once a Court of competent jurisdiction passes bail order, very strong and exceptional grounds are required to cancel the dame. The bail can be recalled where the person on bail repeats the offence, hampers the investigation, makes some efforts to tamper with the evidence, commits some acts of violence against the police and prosecution witnesses or manages to flee away from the country or beyond the control of sureties. Gulzar Ahmad vs. The State (1997 M LD 1606) and Tariq Bashir vs. State (PLD 1995 Supreme Court 34).
7. It needs no reiteration 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 for 10 years or more. 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. which is 'par materia' with the principles which apply to the setting aside of the orders of acquittal, as held in Mian Dad vs. The State (1992 SCMR 1289).
8. In conclusion, I find that learned forums below were quite justified to hold that the matter certainly needs a thorough probe and, therefore, concession of bail has rightly been extended in this case by invoking the concept of further inquiry. In my opinion it is not a fit case for cancellation of bail as strong and exceptional grounds are needed to get it cancelled which are non-existent.
The application fails which is hereby dismissed.