DILAWAR KHAN and another vs IQBAL KHAN and another
This matter arises from a criminal petition filed by Dilawar Khan and another seeking the cancellation of bail granted to the accused-respondent Iqbal Khan in a case registered under sections 302, 324, and 34 of the Pakistan Penal Code 1860 at Police Station Tajori, District Lakki Marwat. The core legal question is whether the bail granted to the accused-respondent should be cancelled when his role is identical to co-accused whose bail has already been cancelled by the High Court, and where a purported cross-case does not legally qualify as a true cross-case. The Peshawar High Court held that since the role assigned to the accused-respondent is the same as that of co-accused whose bail was previously cancelled, and given that the time difference between the occurrences negated the plea of a genuine cross-case or self-defence, the accused-respondent was not entitled to bail. The court laid down the principle that incidents separated by a significant time gap cannot be treated as true cross-cases to justify self-defence for bail purposes, and parity in the role of co-accused warrants the cancellation of bail.
- Whether bail granted to an accused can be cancelled on the ground of parity when co-accused with the same role have had their bail cancelled?
- Does a time difference of one and a half hours between two incidents prevent them from being treated as true cross-cases?
- Can a subsequent FIR regarding an incident in retaliation establish a valid claim of self-defence for the purpose of granting bail?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
' ATTAULLAH KHAN, J.--- Dilawar Khan and Mst. Salara Bibi have moved this petition for cancellation of to Iqbal Khan accused-respondent in case F.I.R. No,180 dated 10-9-2008 registered under sections 302/324/34, P.P.C. At Police Station Tajori, District Lakki Marwat.
2. It is argued by learned counsel for the petitioners that there is sufficient evidence in the case against the accused. It is a day-light occurrence and the F.I.R. Is promptly lodged. Learned counsel for the petitioner further argued that the bail of the two accused namely Sahib Khan and Habibullah has been cancelled by this Court vide order dated 22-5-2009. According to learned counsel, the case of the present accused-respondent is on the same footings with those whose bail has been cancelled by this Court.
3. On the other hand, argument of learned counsel for the accused-respondent is that on merits the case of the accused-respondent is bailable. There is no evidence against the accused- respondent and a cross-case exists which has made the case of the accused-respondent as bailable.
4. I have heard arguments and perused the record in the light of which my discussion is as under:'- -
5. The record reveals that after the grant of bail to accused Saadullah, Sahib Khan and Habibullah by the learned Sessions Court, cancellation was moved in this Court and on 22-5-2009 the bail of accused Sahib Khan and Habibullah was cancelled. The record reveals that the present accused- respondent namely Iqbal Khan has the same role as that of Sahib Khan and Habibullah whose bail has been cancelled by this Court. At that time, the alleged cross-case F.I.R. No,181 was available but the same was not believed by this Court by the honourable Judge. The relevant portion is reproduced below:- "Two criminal cases are treated to be cross-cases when place of occurrence, time of occurrence and the parties are the same. On comparing the case F.I.Rs, Nos.180 and 181 in juxtaposition, it emerged that admittedly occurrence in case F.I.R. No,180 took place at 1530 hours on 10-9-2008, but the occurrence in case F.I.R. No,181 took place at 1700 hours on the same date. There is difference of 1-1/2 hours in between the time of two incidents, as recorded in F:I.R. No,180 and F.I.R. No,181.
Therefore, learned counsel for the petitioners rightly argued that the second incident recorded in F.I.R. No,181 may be in retaliation but it is not an incident of cross-case to pave ground for respondents-accused to argue that they acted in self-defence and hence, they are entitled to bail."
6. As the role assigned to the present accused-respondent is exactly the same as that of accused whose bail has been cancelled by this Court, therefore, without going into further merits of the case, I hold that the accused-respondent namely Iqbal Khan was not entitled to bail.
7. Hence, the petition-in-hand is accepted and bail already granted to accused-respondent Iqbal Khan is cancelled. He is present in Court. It is ordered that he be taken into custody and sent to jail and be produced in accordance with law before the relevant Court for further action.