GHULAM MUHAMMAD vs THE STATE and anothers
This criminal petition was filed seeking the cancellation of bail granted to the respondent by the Additional Sessions Judge in a case registered under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and Section 377 of the Pakistan Penal Code 1860. The core legal question was whether the bail granted by the trial court warranted cancellation based on the petitioner's allegations. The Court dismissed the petition, holding that no grounds for cancellation were established. The judgment reaffirmed that the considerations for cancelling bail are distinct from those for granting it. Bail can only be recalled under exceptional circumstances, such as lack of jurisdiction, tampering with evidence, hampering investigation, absconding, or misuse of the concession. Furthermore, the Court noted that since the trial had already commenced and the respondent was regularly attending proceedings, interference with the trial court's judicious exercise of discretion was unwarranted. The principle established is that strong, exceptional grounds are required to cancel bail once granted by a court of competent jurisdiction, and superior courts generally avoid interfering with bail matters when the trial is actively proceeding.
- What are the specific grounds upon which bail granted by a subordinate court can be cancelled?
- Does the commencement of a trial influence the court's decision to interfere with a bail order?
- Is the standard for cancelling bail the same as the standard for granting bail?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 377, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
ORDER
' MUHAMMAD NAWAZ BHATTI, J.--- Through this petition, the petitioner has sought cancellation of bail granted to respondent No,2 by the learned Additional-Sessions Judge, Chichawatni vide order, dated 23-4-2005 in case F.I.R. No,333 of 2004 dated 18-9-2004 registered under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) read with section 377, P.P.C. At Police Station Kassowal, District Sahiwal.
2. Precisely the allegation against the petitioner is that he committed sodomy with Abdul Majeed aged 14 years, along with his co-accused Muhammad Mushtaq after drinking liquor and also administering liquor to the said victim.
3. Learned counsel for the petitioner submits that the accused/ respondent was duly nominated in the F.I.R. With specific role. That respondent No,2 moved his pre-arrest bail thrice before the learned Additional Sessions Judge, which was dismissed for non-prosecution and subsequently he had not approached this Court and was not arrested by the police. Further submits that it was not possible for the learned trial Court to direct respondent No,2 to submit bail bonds and he should have to move application for bail in this Court or should have been arrested. Reliance has been placed on Muhammad Yousaf v. Muhammad Iqbal 2005 MLD page 13.
4. On the other hand learned counsel appearing on behalf of the State assisted by learned counsel appearing on behalf of respondent No,2 has vehemently opposed the cancellation of bail and submitted that the respondent joined the investigation and was declared innocent by the Investigating Agency. Further submits that there is no allegation against respondent No,2 of misuse of concession of bail.
5. I have heard learned counsel for the parties and carefully perused the record. The considerations for cancellation of bail are different from the considerations for grant of bail. The superior Courts have laid down guiding principles for the subordinate Courts to cancel bail granted to an accused according to which bail granted to an accused can only be recalled if:---
(a) bail was granted by a Court having no jurisdiction to grant it;
(b) the accused on bail commits the same offence for which he is being tried or has been convicted;
(c) the accused on bail hampers the investigation;
(d) the accused on bail tampers with the evidence;
(e) the accused absconds after grant of bail;
(f) the accused got bail on the basis of false averments regarding his age or illness, etc;
(g) the accused was implicated as principal offender in several cases which badly affect the society at large such as in the cases of heroin, smuggling, etc.;
(h) granting of bail to an accused has become a foundation of revenge against the complainant party, prosecution or the witnesses;
(i) bail order of the subordinate Court is devoid of reasoning while granting bail and facts of the case were fully implicating the accused for attracting section 497(1), Cr.P.C.
' Moreover strong and exception grounds are needed for cancellation of bail when same is granted by a Court of competent jurisdiction. Reliance in this behalf is placed on Bashir Ahmad v. Mirza Muhammad Ayub 1991 MLD 579. Learned Additional Sessions Judge has exercised his discretion while passing the judicious order after proper application of his judicious mind. No interference is called for.
6. Even the trial in the case has commenced and case is fixed for evidence by the learned trial Court and attendance of witnesses has been marked and respondent No,2 is attending trial Court.
Even otherwise it is practice of the superior Courts that when a case is fixed for hearing, ordinarily the bail application is not decided on merits and matter is often left to the discretion of the trial Judge and this practice is directly relatable to the "question of prejudice", reliance in this respect is placed on Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585.
7. For what has been discussed above the instant petition stands dismissed being without any substance.