INAYAT KHAN vs ZAHID And 2 Others

JUDGMENT MAZHAR ALAM KHAN . MIANKHEL, J.---The petitioner herein seeks the cancellation of bail granted to accused-respondents Nos.1 and 2 by the learned Civil Judge/Illaqa Qazi, Chakdara in case F.I.R. No.287 dated 20-4-2010, Police Station Ouch, registered under sections 11/19 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. The learned counsel for petitioner at the very outset requested for adjournment as today, a bail application of one co-accused Shahid Khan was fixed wherein, he by submitting his power of attorney, had also asked for adjournment as he has not prepared the case for bail by advancing the reason that considerations for grant and cancellation of bail are entirely different. Though the reason advanced by the learned counsel has legal force behind the same but once he was in possession of the record and had also gone through the same and had also expressed his readiness to argue this case. So, persistent request for adjournment in bail application was nothing but to delay the hearing of bail which ultimately was adjourned to 29-11-2010. Such a conduct of the learned counsel for the petitioner is highly deplorable. On the same reason advanced by the learned counsel for adjournment of bail application, he was directed to argue this petition for cancellation of bail as consideration for both are entirely different and if a prima facie case for cancellation of bail is made out, notice against the accused/respondent, would be issued. Besides, hearing of this petition in isolation would create no legal bar and will have no adverse effect on bail application of the co-accused.

3. Learned counsel for the petitioner submitted that the bail granting order was passed by the learned Judicial Magistrate without assigning any reasons and was not in accordance with law.

The accused-respondents were fully involved in the case and there was sufficient material available on the record, which disentitled them for grant of bail and as such the bail granted requires to be recalled.

4. Before going into the merits of the case, it seems appropriate to mention that both the sections of law have been omitted from the main Statute by "The Protection of Women (Cr. Laws Amend.)

Act, VI of 2006" and the same are not the part of Statute. But such Cr. Law Amendment Act, ibid, has not been extended to the PATA, so, the offences of Zina (Enforcement of Hudood) Ordinance, 1979, in original is still applicable in the area.

5. The learned counsel for the petitioner was heard and record of the case was perused, which would reveal that initially report of the complaint was recorded in the Daily Diary at S. No.42 dated 11-4-2010 that his daughter Fauzia Bibi, who was engaged with one Aminur Rehman's, was missing and after inquiry under section 156(3), Cr.P.C., the above referred case was registered against the accused-respondents along with one Shahid Khan son of Ali Sher. All the accused were arrested, who then applied for their release on bail. The Civil Judge/Illaqa Qazi, Chakdara vide his order dated 8-5-2010 directed the release of accused-respondents on the plea of further inquiry as no prima facie case was made out against both the respondents and similarly, the daughter of the complainant had also not named them in her statement recorded under section 164, Cr.P.C. On 22- 4-2010 before the Magistrate Ist Class. There is no other material collected by the prosecution to prima facie connect them with the commission of offence. Rightly held so by the trial Court that their involvement for the commission of offence would be seen at the trial.

6. Since it is a petition for cancellation of bail and the considerations for grant of bail and cancellation of bail are altogether different. Once a bail is granted to an accused by a competent Court of law, then for cancellation of the same strong grounds are required. If something material is brought against the accused that he has abused/misused the concession of bail granted to him or the bail granting-order is perverse and against the settled principles of law governing the grant of bail or accused attempts to tamper with the evidence or hampers the investigation then the bail granting order can be recalled. If the case of present accused/respondents is considered on the above touchstone then the record of the case is silent in this regard. Nothing of the sort was brought on the record. The learned counsel for the petitioner was unable to make out a case for cancellation of bail in the given circumstances. Trial of the case has also been initiated and if the complainant is able to prove his case against the accused, they can be convicted and sentenced in accordance with law. Liberty by way of bail granted to them cannot be recalled merely on the whims of the petitioner.

7. For the reasons discussed above, this bail cancellation application is dismissed.