NASIR KHAN vs WASEEL GUL and another

' IJAZ-UL-HASSAN, J.---Through instant petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, Nasir Khan, petitioner, seeks leave to appeal from a judgment of the Peshawar High Court, Peshawar dated 12-5-2008, granting bail to Waseel Gul, respondent No, 1 in case F.I.R. No, 428 dated 8-8-2008 registered under section 365-A/34, P.P.C. At Police Station Daudzai, Peshawar.

2. Facts of the case have been incorporated in detail, in the impugned judgment as well as in the memo of petition and need not be reiterated. Suffice is to state that respondent and two others were charged for having, on 1-8-2008 at unknown time, kidnapped Amanullah (14/15) son of the petitioner for ransom. After arrest, respondent applied for grant of bail before learned Judge , Anti- Terrorism Court, Peshawar and on its rejection vide order dated 23-9-2008, filed bail application before learned High Court, which has been allowed through the judgment impugned herein.

3. We have heard Messrs Hussain Ali, Advocate for the petitioner, Tasleem Hussain, Advocate for respondent No, 1, and Ishtiaq Ibrahim, Additional Advocate-General, N.-W.F.P. For State in the light of the material on record.

4. It is contended by learned counsel for the petitioner that sufficient material was available on record to prove that respondent had a hand in the affair; that respondent received rupees two lacs as `Tawan' and that factum of delay in reporting the matter to the police which in variably occurs in such like cases, should not have weighed with learned High Court while granting of bail to the respondent.

5. Learned Additional Advocate-General, representing the State, supported the contentions raised by learned counsel for the petitioner and opposed the impugned judgment by tooth and nail.

6. Learned counsel appearing for respondent No,1., on the other hand, refuted the above contentions of learned counsel for the petitioner and supported the impugned judgment on all, counts.

7. No doubt, it is true that respondent is one of the accused persons charged in a henious offence but it is equally true that mere heinousness of an offence does not disqualify an accused person from the relief of bail, if otherwise his case is found fit for grant of bail. In the instant case, bail has been granted to respondent for cogent and valid reasons which are not open to legitimate exception. In Suba Khan v. Muhammad Ajmal and 2 others (2006 SCM R 66) it was observed by this Court that "this Court in a number of cases interpreted the provisions of section 497(2), Cr.P.C. And held that main consideration for grant of bail under subsection (2) of section 497, Cr.P.C. Is that if the Court on the basis of tentative assessment of evidence, forms an opinion that prima facie there were reasonable grounds to believe that accused has not committed an offence with which he was being charged, he would be allowed bail by virtue of subsection (2) of section 497, Cr.P.C. As of right."

8. It may not be out of place to mention here that two co-accused, assigned similar role qua the respondent have already been admitted to bail by learned trial Court and no bail cancellation application has been moved against them.

9. In view of the above, finding no merit in this petition, we dismiss the same and decline to grant leave.