NAZA MIR vs ADAM JAN and 2 others
This criminal petition was filed by the complainant seeking the cancellation of post-arrest bail granted to the respondents by the Additional Sessions Judge Tank in a case registered under sections 324 and 34 of the Pakistan Penal Code 1860. The core legal question was whether the post-arrest bail granted to the accused was perverse, arbitrary, or unjustified so as to warrant interference by the High Court. The Peshawar High Court dismissed the application in limine, holding that tentative assessment of the record brought the case within the ambit of further inquiry, particularly considering the midnight occurrence without a mentioned source of light, delay in lodging the First Information Report, discrepancies in the site plan, and the absence of recovered incriminating articles from the accused. The court laid down the principle that considerations for the grant of bail and its cancellation differ, and once bail is granted, it cannot be recalled lightly without proof of misuse of concession, tampering with evidence, or emergence of fresh material establishing guilt.
- Whether bail once granted by a competent court can be cancelled lightly without proof of misuse of the concession?
- Does a midnight occurrence with no mentioned source of light bring a case within the ambit of further enquiry for bail purposes?
- Can the merits of a case be deeply evaluated at the stage of a bail cancellation application?
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ATTAULLAH KHAN, J.---Naza Mir, complainant/petitioner has filed this application for cancellation of post-arrest bail granted to the accused/respondents Nos.1 and 2 by the learned Additional Sessions Judge Tank, whereby they were admitted to bail in case F.I.R No,71 dated 5-2-2009 of Police Station Mullazai, Tank, under section 324/34, P.P.C.
2. Learned counsel for the petitioner vehemently challenged the impugned order on the grounds that the accused/respondents are directly charged by the complainant/ petitioner in the promptly lodged report for effectively firing at him; that the charge is duly corroborated by the medical, ocular, site plan and circumstantial evidence; that the recovery of .12 bore empties, blood stained earth and pellets from the western wall of room of the complainant/petitioner further strengthens the prosecution case and that there was no chance of mistaken identity as both the parties belong to the same vicinity.
3. I have gone through the record carefully and considered the submission of the learned counsel for the parties.
4. The points agitated by the learned counsel for the petitioner relate to the merits of the case which cannot be taken into consideration at this bail stage because any observations if made by this Court thereon would likely to prejudice the trial.
5. Presently, tentative assessm ent of the materials available on record, prima facie, brings the case of the accused/ respondents within the ambit of further enquiry entitling them to the concession of bail.
6. Perusal of the record reveals that the occurrence had allegedly taken place at mid night where identity of the culprit was not possible as no source of light has been mentioned by the complainant in his initial report. Further the time of occurrence is given to be 0100 hours while the matter was reported to the police at 0830 hours and thus there is a delay of 7-30 hours in making the first report. Besides, no bloodstained earth and empties have been recovered from the place of occurrence and the site plan prepared in the case is also not in consonance with the contents of the F.I.R. It would be adjudged at the time of trial when complete evidence comes on record as to whether the accused/ respondents shared common intention for committing the. offence. Neither any incriminating article has been recovered from their possession or on their pointation and thus the impugned order is neither capricious nor fanciful so as to call for interference therein by this Court.
7. It is now well settled that considerations for grant of bail and cancellation thereof are quite different. Once bail is granted by a competent Court of law, then it cannot be recalled slightly unless it is proved on record that the concession of bail was either mis-used or the accused has tampered with the investigation process, because his liberty Cannot be interfered with lightly. No such element is available in the case in hand, or some fresh facts or material has been collected by the police Miring investigation which may tend to establish the guilt of the accused, or the accused has indulged in A similar activity endangering the life of complainant party.
8. Resultantly, I find no substance in this bail cancellation application which is hereby dismissed in limine.