MUHAMMAD WALAYAT. vs ZAFAR ULLAH and 2 others

ORDER

' IQBAL HAMEED UR RAHMAN, J.--- The petitioner seeks cancellation of pre-arrest bail granted by lower Court vide order dated -9-4-2009 to respondents Nos.1 and 2 in F.I.R. No,58 of 2009 dated 1-3- 2009 registered at Police Station Kaseesay, District Hafizabad under sections 302, 34, 109, P.P.C.

2. The learned counsel for the petitioner states that respondents Nos.1 and 2 are named in the F.I.R., they are the main culprits of the case and it has been stated at the very first instance that on their behest the whole incident has occurred. Further states that after registration of the case two P.Ws.

Appeared before the police and made a statement under section 161, Cr.P.C. Fully implicating respondents Nos.1 and 2 of abetment and during the investigation both respondents Nos.1 and 2 have been found guilty by the police. It is further urged that co-accused have been declared proclaimed offenders, It is also contended that the learned Additional Sessions Judge has failed to take into consideration the settled principle of law while granting pre-arrest bail to the respondents; that, there is direct and circumstantial evidence against respondents of abetment for the murder of the brother of the complainant; that the offence falls under the prohibitory clause. It is stated that another case 'vide F.I.R. No,111 of 2009 has also been registered against respondents Nos.1 and 2; that only the tentative assessment is to be taken into consideration but the learned Additional Sessions Judge has gone into the deeper appreciation of evidence, which was not required. In view of the same; the impugned order is perverse and arbitrary and the same be set aside.

3. On the other hand, learned counsel for respondents Nos.1 and 2 fully supported the order of the learned Additional Sessions Judge dated 9-4-2009 granting pre-arrest bail to respondents Nos.1 and 2 and states that there is no arbitrariness or perversity in the impugned order; that both the respondents have been falsely implicated in this case with mala fide and malice on the part of the complainant in order to throw a wider net on the whole family of the accused party. Inter se the petitioner and respondents Nos.1 and 2 are closely related to each other; that no motive has been alleged against the respondents where it has only been alleged against co-accused Sarwar, who is the main accused'. It is also stated that the role and attribution of accused persons are mainly assigned on the first part of the F.I.R., it is only while parting with the F.I.R. That the names of the respondents have been mentioned in the F.I.R. On the ground of abetment, which shows the intention of the complainant of the false implication of the respondents; that there is no allegation against the respondents either in the petition or before this Court of misusing the concession of bail.

4. Learned A.P.-G. States that the respondents are nominated in the F.I.R. And in the peculiar circumstances of the case when both the parties are inter se closely related to each other, the false implication of the respondents cannot be attributed.

5. Arguments heard, record perused.

6. Admittedly, respondents Nos.1 and 2 have been involved in the instant case on account of abetment and as such nominated in the F.I.R. Also but the role of abetment had been subsequently advanced through supplementary statement recorded by two P. Ws. The said recording of the supplementary statement creates the impression that it is an afterthought, therefore, false involvement of the respondents cannot be ruled out. If the abetment was so apparent the complainant would have in the very first instance being very loud and clear on it and would have elaborated the role of abetment of the respondents in theF.I.R. Being so closely related to each other and would have disclosed animosity at the very first instance. Moreover, in the absence of any motive being attributed to the respondents, it is apparent that the respondents have been implicated in order to widen the net to involve the whole family of the accused party. From the above perspective the mala fides and malice on the part of the complainant cannot be ruled out.

The same has been taken into consideration by the learned Additional Sessions Judge while confirming the pre-arrest bail granted to respondents Nos.1 and 2. As such order of learned Additional Sessions Judge does not seem to be arbitrary or perverse. Further it has been settled law that once a bail is granted by a Court of competent jurisdiction, then very strong and exceptional grounds would be required for cancelling the same. Provisions of section 497(5), Cr.P.C. Are not punitive. There is no legal compulsion for cancelling the bail granted in cases punishable with death, imprisonment for life or imprisonment for ten years, Reliance is placed on Syed Amanullah Shah v. The State and another PLD 1996 SC 241. In the instant case, the petitioner has not been able to present any exceptional ground, which requires cancellation of the bail already granted to respondents Nos.1 and 2.

7. In view of the above reasons, I do not find merits in this application seeking cancellation of bail of respondents Nos.1 and 2 granted to them by the learned Additional Sessions Judge, Hafizabad, vide order dated 9-4-2009.. Thus, this application for cancellation of bail is dismissed.