ABDUL KHALIQ vs ATEEFURREHMAN and 2 others
This criminal petition arises out of an order seeking the cancellation of bail granted to the accused respondents by the lower courts in a case registered under Section 365 of the Pakistan Penal Code 1860 relating to the alleged kidnapping of the complainant's brother. The core legal question was whether the bail granted to the respondents should be cancelled on the grounds of direct charge in the F.I.R., involvement in other cases, and erroneous consideration by the lower courts. The Peshawar High Court held that the petition lacks merit, noting that a co-accused attributed with the same role was already granted bail by the High Court, one respondent is an old and disabled person, there is no direct evidence connecting the respondents to the offense, and no misuse of bail concession or tampering with evidence was established by the petitioner. The court laid down the key principle that the principles for the grant of bail and the cancellation thereof are distinct, and cancellation requires proof of misuse of the concession of bail, tampering with evidence, or subsequent criminal pressure, which were absent in this case.
- What are the essential ingredients required to be established by a petitioner for the cancellation of bail?
- Are the principles for the grant of bail and the cancellation of bail different from each other?
- Whether bail already granted to co-accused attributed with the same role serves as a ground for sustaining bail for other respondents?
- Does old age and physical disability entitle an accused to the concession of bail?
- Section 365, Pakistan Penal Code 1860
ORDER
' ATTAULLAII KHAN, J.---Through this petition, the petitioner Abdul Khaliq seeks the cancellation of bail granted to the accused/respondents Nos.1 and 2 by the learned Judicial Magistrate-VI and affirmed by the learned Additional Sessions Judge-I Lakki Marwat vide orders dated 16-8-2010 and 2-11-2010 respectively in case F.I.R No,110 dated 4-8-2010 of Police Station Dadiwala, Tehsil and District Lakki Marwat under section 365, P.P.C.
2. The allegation against the accused/respondents along with their co-accused Zafer Ali Khan as per initial report lodged by the complainant/petitioner is that they are allegedly involved in the kidnapping of his brother, namely, Muhammad Nawaz.
3. Learned counsel for the petitioner argued that the accused/ respondents are directly charged in the F.I.R, He argued that the learned Judicial Magistrate while granting bail to the accused/respondents has only discussed the case of respondent Ajab Khan and not touched the case of Ateef-ur-Rahman. He further argued that there is ample evidence on record to connected the accused/respondents with the offence, therefore, they were not entitled to the discretionary relief of bail.
4. I have gone through the record and considered the arguments of the learned counsel for the petitioner.
5. Perusal of the record shows that though the learned Judicial Magistrate has discussed only the case of Ajab Khan, but the learned Additional Sessions Judge-I Lakki while maintaining the bail granting order of the Magistrate has dilated upon the cases of both the respondents.
6. It is to be pointed out that the third accused, namely, Zafer Ali Khan has been granted bail by this Court vide order dated 22-11-2010 and the reasons prevailed therefor have been discussed in paras 7 to 9 therein. The grounds prevailed for that accused are also available to the respondents/accused because the same role has been attributed to them.
7. Besides, the accused/respondent Ajab Khan is admittedly an old person of 71/72 years and also disabled. So, on this ground too, he is entitled to bail.
8. There is no direct evidence against the accused/respondents to connect them with the offence.
9. As far as the contention of the learned counsel for the petitioner that in view of the dictum handed down by the Apex Court in the case reported in 1998 SCM R 190 that since the respondents are involved in other F.I.Rs and thus were not entitled to bail is concerned, it is to be pointed out that the facts of the case in hand are different from the reported judgment of the Apex Court. The present application is for cancellation of bail granted to the accused/respondents while the aforesaid reported case was for the grant of bail.
10. Principles for grant of bail and cancellation thereof are quite different from each other. In the application for cancellation of bail, the complainant/petitioner is required to show mis-use of the concession of bail by the accused, tampering with evidence or subsequent criminal pressure on the complainant. The petitioner has not been able to establish any of these ingredients.
11. Consequently, I find no substance in this application for cancellation of bail which is accordingly dismissed in limine.