THE STATE vs NISAR AHMAD, ETC.
The State filed a petition under Section 497(5) of the Code of Criminal Procedure 1898 seeking the cancellation of pre-arrest bail granted to respondent No. 1 by the Additional Sessions Judge, Pattoki. The core legal question was whether pre-arrest bail granted to the respondent, who was allegedly involved in the recovery of narcotics, should be cancelled considering his subsequent conduct and the merits of the case. The Lahore High Court held that the petition should be dismissed. The Court reasoned that the respondent was not apprehended at the spot despite the presence of police officials, the primary evidence against him was the statement of an inimical co-accused, the challan had already been submitted, and the respondent had been regularly appearing before the trial court without misusing the concession of bail. The key principle laid down is that the criteria for the cancellation of bail differ from those for its grant, and where an accused is regularly attending the trial and has not misused bail, no useful purpose is served by sending them to jail.
- What is the distinction between the criteria for the grant of bail and the cancellation of bail?
- Does the regular appearance of an accused before the trial court preclude the cancellation of pre-arrest bail?
- Can a statement of a co-accused be considered sufficient ground to maintain pre-arrest bail when enmity is alleged?
- 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 Addl. 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 Addl. 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 vehicle 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 narcotics 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 mis-used 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 mala fidely 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 alongwith 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.