GHULAM QASIM vs ASGHAR KHAN and another
This criminal petition was filed seeking the cancellation of bail granted to respondent No.1 by the Additional Sessions Judge in a case registered under sections 457 and 337-H(2) of the Pakistan Penal Code 1860 at Police Station Chakrala, District Mianwali. The core legal question was whether the bail granted to the respondent warranted cancellation due to alleged illegality in the lower court's assessment or misuse of concession. The Lahore High Court held that the offence prima facie fell under the first part of section 457 of the Pakistan Penal Code 1860 carrying a lesser sentence, that no specific active role or weapon recovery was attributed, and that an unexplained delay in lodging the F.I.R. further weakened the prosecution's case. The court dismissed the petition, laying down the key principle that considerations for the grant and cancellation of bail are distinct, requiring strong exceptional grounds—such as a patently illegal order or misuse of concession—to recall bail once validly granted under section 497(5) of the Code of Criminal Procedure 1898.
- Whether bail once granted can be cancelled without strong exceptional grounds?
- Does an unexplained delay in lodging the FIR create doubt regarding the prosecution case for bail matters?
- Are the considerations for the grant of bail and the cancellation of bail different?
- Whether the provisions of subsection (5) of section 497 of the Code of Criminal Procedure 1898 are punitive in nature?
- Section 457, Pakistan Penal Code 1860
- Section 337-H(2), Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(5), Code of Criminal Procedure 1898
ORDER
' TARIQ SHAMIM, J.--- Through this petition the petitioner seeks cancellation of _bail granted to respondent No,1 by the learned Additional Sessions Judge vide order dated 11-8-2006 in case F.I.R.
'No,47, dated 7-6-2006, registered under sections 457 and 337-H(2), P.P.C. At Police Station Chakrala, District Mianwali, inter alia on the grounds that the learned trial Court had erred in assuming that the provisions of section 457, Part I, P.P.C. Were attracted to the case which entailed a maximum sentence of five years, hence the same did not fall within the prohibitory clause of section 497, Cr.P.C. That respondent No,1 had been nominated in the F.I.R. And specific role had been ascribed to him, who during the investigation was also found to be guilty by the Investigating Agency.
2. Learned counsel appearing on behalf of respondent No,1 in support of the bail granting order argued; that there was a delay of more than one month in lodging of the F.I.R. Which had not been explained that no specific role had been ascribed to respondent No,1 who was only shown to be standing by the door of the house of the complainant, that during the Investigation, weapon of offence was not recovered from respondent No,1; that the learned Court was fully justified . In concluding that the offence fell within the purview of first part of section 457, P.P.C. Which entailed a maximum sentence of five years and that after submission of the challan on 10-2-2006 the charge had been framed and the trial was in progress as such the petition deserved to be dismissed.
3. I have heard the learned counsel for the parties and perused the record.
4. The conclusion arrived at by the learned Court below that prima facie the offence fell under first part of section 457, P.P.C. Appears to be correct. Respondent No,1 although nominated in the F.I.R.
Has not been ascribed any specific role and the only allegation levelled against respondent No,1 is of standing by the outer door of the Haveli of the complainant while armed. No description of the weapon has been provided and nothing was recovered from him during physical remand. Further there is an unexplained delay of about one month in lodging of the F.I.R. This also creates doubt about the veracity of the prosecution case. The challan in the case was submifted on 10-7-2006 and after framing of charge the case is now fixed for recording of prosecution evidence. Since the trial is in progress, it would not be appropriate at this stage to recall the bail granted to respondent No,1 by the learned Court below.
5. Even otherwise, considerations for grant of bail and cancellation of bail are different and strong exceptional grounds would be required for cancelling the bail once it has been validly granted. The provisions of subsection (5) of section 497, Cr.P.C. Are not punitive in nature and there is no compulsion for cancelling the bail unless the bail granting order is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice or where the accused is found to be misusing the concession of bail by extending threats or tampering with the prosecution case. In the instant case, the learned counsel for the petitioner has not been able to point out any such illegality or infirmity calling for interference in the impugned order.
6. In view of the above discussion, this petition has no merit which is accordingly dismissed.
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