THE STATE vs NISAR AHMAD and others
This criminal petition was filed by the State under Section 497(5) of the Code of Criminal Procedure 1898, seeking the cancellation of pre-arrest bail granted to the respondent by an Additional Sessions Judge. The core legal question was whether the respondent's bail should be cancelled given the prosecution's allegations of his flight from the scene, the recovery of narcotics, and the alleged failure of the lower court to distinguish between the prerequisites for pre-arrest and post-arrest bail. The Lahore High Court dismissed the petition, holding that the cancellation of bail requires different criteria than the grant of bail. The Court observed that the respondent was not apprehended at the scene despite police presence, the sole evidence against him was the statement of an inimical co-accused, and the investigation report under Section 173 of the Code of Criminal Procedure 1898 had already been submitted. Crucially, the Court emphasized that since the respondent was regularly appearing before the trial court and had not misused the concession of bail, incarcerating him would serve no useful purpose.
- Does the criteria for the cancellation of bail differ from the criteria for the grant of bail?
- Is the regular appearance of an accused before the trial court a relevant factor in refusing to cancel bail?
- Can bail be cancelled when the investigation report has already been submitted and no further recovery is required from the accused?
- Section 497(5), Code of Criminal Procedure 1898
- Section 173, Code of Criminal Procedure 1898
ORDER
' IJAZ AHMAD CHAUDHRY, J.---The State has filed this petition under section 497(5), Cr.P.C. For cancellation of bail before arrest granted to respondent No,1 by the learned Additional Sessions Judge, Pattoki, vide order, dated 24-10-2009.
2. Learned Deputy Prosecutor-General submits that the respondent succeeded to ran away from the spot and remained fugitive from law for about three months; that there is no mala fide on the part of the police to falsely implicate the respondent in the present F.I.R. Which was lodged immediately after the occurrence; that two kilogram Garda Charas had been recovered from the shopper allegedly thrown by the respondent at the spot and that the learned Additional Sessions Judge did not keep in mind the differences between prerequisites of bail before arrest and bail after arrest.
3. Learned counsel for the respondent contends that according to the F.I.R. There was a definite information regarding the incident to the police in spite of that no public witness had been joined in the recovery proceedings; that seven police officials armed with deadly weapon and vehicles were available at the spot even then the respondent was not apprehended which casts doubt in the prosecution story; that the respondent never remained indulged in narcotic activities; that challan has been submitted in Court and the respondent is appearing before the learned trial Court on each and every date and has not misused the concession of bail. It is further contended that only evidence collected by the police against the present respondent is statement of his co-accused which cannot be relied upon as the respondent has given Talaq to the daughter of the said co- accused, therefore, he malafidely implicated the respondent in the present case and that there is no chance of conviction of the respondent in the present case.
4. We have heard the arguments of the learned counsel for the parties and have also perused the contents of the order through which bail before arrest of respondent No,1 has been confirmed. The respondent was not apprehended at the spot in spite of the fact that a number of police officials along with vehicle were present and the only evidence against the respondent is statement of his co-accused Mushtaq who is inimical to the respondent. Even otherwise report under section 173, Cr.P.C. Has been submitted and nothing is to be recovered from the respondent. Criteria for cancellation of bail is entirely different from grant of bail. As the respondent is continuously appearing before the trial Court and has not misused the concession, no useful purpose would be served by sending him to jail. He is present in Court and submits that he earns his livelihood through donkey-cart. Keeping in view all these facts and circumstances, we find that no useful purpose would be served by sending the respondent to jail when he is already appearing before the learned trial Court. This petition is accordingly dismissed.