EHSAN-UL-HAQ vs MUHAMMAD KHAN and another

ORDER

' CH. IFTIKHAR HUSSAIN, J.---Petitioner Ehsan-ul-Haq by way of the instant petition under section 497(5), Cr.P.C. Has sought for cancellation of pre-arrest arrest bail extended to respondent No, 1 vide order dated 19-10-2009, recorded by the learned Additional Sessions Judge, Faisalabad, in case F.I.R. No,805 registered under sections 302/429/148/149/109, P.P.C. With Police Station Thikarianwala, District Faisalabad on 11-9-2009.

2. Briefly the facts relevant for the disposal of the instant petition are that the said case was registered en the written application of the present petitioner against respondent No, 1 and others.

He has accused respondent No,1 in the same to be party to the criminal conspiracy to do away with deceased Khalid Mehmood and Muhammad Sohail.

3. He (respondent No,1) applied for pre-arrest bail to the court of learned Sessions Judge, Faisalabad and the same was extended to him vide the afore-referred order of the learned Additional Sessions Judge. It was mainly on the basis of the view in the case of Ghulam Murtaza v.

The State (2003 YLR 3255 Lahore). He (petitioner) moved to the same court for recall or cancellation of such bail to him under section 497(5), Cr.P.C. The said application of the petitioner was declined on 4-1-2010 with the following observations:-- "From the perusal of the case file and case law produced by the counsel for the parties, it may be visualized that the grounds agitated for the cancellation of bail were already taken when the pre- arrest bail of the respondent was confirmed on 19-10-2009. As regards the misuse of facility of bail by the respondent, the application dated 15-12-2009 moved by the complainant to the SHO does not bear the name of any witness in the presence of whom the respondent is alleged to have extended threats to the complainant, therefore, the petition is without any force and the same is hereby dismissed."

4. The petitioner now has come to this Court seeking cancellation of his bail. It has been argued on his behalf that he was party to the conspiracy to do away with two deceased persons and there is sufficient material available on the record to that effect; and that he was found involved in the commission of the alleged offence and so, there did not exist any reasonable ground to extend him such extraordinary relief. In support of such submissions reliance has been placed upon the case of Raja Fazal-ur-Rehman v. Muhammad Afzal and another (2010 SCM R 179).

5. As against the same, the learned counsel for respondent No,1 has opposed the instant petition saying that there is only allegation of abetment or conspiracy against respondent No, 1 and he neither had been present at the spot at the relevant time nor has committed any other overt act qua the crime alleged and so, in view of the ratio of the case of Ghulam Murtaza v. The State (2003 YLR 3255 Lahore), he was rightly allowed the relief in such circumstances of the case; that there exists no strong or exceptional circumstance or ground to recall or cancel the relief extended to him; and that now when trial is likely to commence shortly, so it would not be appropriate to recall the relief to him as in such an eventuality, he may be prejudiced in his defence. In this regard reliance has been placed upon the case of Muhammad Akram v. Zahid Iqbal and others (2008 SCM R 1715) and Haji Mian Abdul Rafique v. Riaz-ud-Din and another (2008 SCM R 1206).

6. The learned DPG has urged nothing in the matter.

7. I have carefully considered the submissions made on behalf of the parties and the record available gone into.

8. As said above that the only allegation against respondent No,1 in the F.I.R. Is that he was party to the criminal conspiracy to do away with the above named two deceased persons. There is absolutely no other allegation against him in the same or anywhere else in the record. He admittedly was not present at the spot at the relevant time and no overt act qua the commission of the alleged offence has been attributed to him. In the case of Ghulam Murtaza v. The State (2003 YLR 3255 Lahore), his Lordship Ijaz Ahmad Chaudhry, J has allowed the similar relief to the accused therein observing as follows:-- "It is an admitted fact that neither Ghulam Mustafa nor Khadim Hussain were present at the spot at the time of occurrence nor they are attributed any injury to the deceased or injured P.W. Mst. Kubra though the name of Ghulam Mustafa along with Nazir Ahmad is mentioned in the F.I.R that the occurrence had taken place at their abetment yet no detail of hatching conspiracy by them is mentioned along with the names of the witnesses before whom conspiracy was hatched but subsequently the names of the witnesses have been introduced. The contents of the F.I.R. Show that the complainant was not aware of any conspiracy being hatched for the murder of the deceased, otherwise he would have made preventive steps to save the life of his son. Prima facie the story of conspiracy seems to be an afterthought in order to widen the net by the complainant party to involve maximum persons from the accused party. The possibility of false implication of the petitioners being real brother and real uncle of the main accused, cannot be ruled out. I find the pre-arrest bail is meant to protect the innocent citizens, if have been found involved with mala fide intention. In these circumstances, the case of the petitioners is that of further inquiry."

9. The above position amply shows that the case of the petitioner in view of the allegation against him is quite identical to the accused in that case. Hence, the observations of his lordship in that case could be applied with equal force to his case.

10. It may be mentioned here with relevance that the learned Additional Sessions Judge in allowing the relief of pre-arrest bail to respondent No, 1 was influenced by the above said observations of his lordship. It, thus appears that it was not a mistaken view of the matter and rather the correct appreciation of the facts of his case vis-a-vis that case.

11. As regards the contention of the learned counsel for the petitioner that he during the investigation was found involved in the matter, the same is hardly with any force in the given situation of the matter. Even otherwise, it can be said that opinion of the police is not binding upon Court, while deciding the question of bail.

12. In view of the given scenario of the present case, such opinion of the police had hardly mattered, particularly, in view of the aforesaid observations of his lordship.

13. I am here well reminded of the well settled proposition in law that bail allowed to an accused, cannot be cancelled, unless there may exist strong and exceptional circumstances to warrant so. I, do not see the same there in the case of respondent No, 1.

14. It is also noticed with concern that an application made by the petitioner to the same very court to recall the bail granting order as allegedly respondent No, 1 had been threatening the persons of the complainant's side after the extension of the relief of such bail to him. His such prayer was declined mainly with the observation by the court of the learned Additional Sessions Judge that application dated 15-3-2009, made to the S.H.O did not bear the name of any witness in the presence of whom the respondent No, 1 is alleged to have extended threats to the complainant's side. There has been shown nothing adverse to the same by the side of the petitioner now before me.

15. So, this aspect of the matter was properly attended to by the learned Additional Sessions Judge, Faisalabad. The same, thus, did not furnish an adequate ground to recall such relief to respondent No,

1. The reliance of the learned counsel for the petitioner on the case of Raja Fazal-ur-Rehman v.

Muhammad Afzal and another (2010 SCM R 179), is thus, not apt in the facts and circumstances of the case. The said case goes to show that it has proceeded on different facts and circumstances than that of respondent No,

1. The august Supreme Court of Pakistan, has been pleased to observe in that case that under section 497, Cr.P.C. An accused cannot be granted bail, when there may exist reasonable grounds to believe that he was guilty of the offence with which he has been charged. The same is not the position in the case of respondent No,1 as his case is fully in line with the case of Ghulam Murtaza v. The State (2003 YLR 3255 Lahore). Hence, the petitioner is entitled to the benefit of the same. The learned counsel for respondent No, 1 has shown me the copies of the orders of the learned trial Court. The same shows that on 21-4-2010, the copies of the documents as required under section 265-C, Cr.P.C. Stood supplied to the accused. It means that commencement of their trial is very much insight. So, it can validly be expected that same may be concluded expeditiously. I, thus, do not find any strong or exceptional circumstance to recall the relief of pre-arrest to respondent No,

1. I am fully conscious of the fact that if at such a stage, the relief of bail to respondent No, 1, is withdrawn, the same definitely may prejudice him in his defence.

16. I, therefore, see no case for interference in the matter. The petition, therefore, is dismissed.

17. However, it is clarified here that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall in no way influence the mind of the learned trial Court ultimately. It is also directed that the learned trial Court shall make all possible efforts to conclude the trial as early as is possible.