Raja SHAHID AHMAD vs NISAR AFZAL and another
This criminal petition was filed by the complainant seeking the cancellation of pre-trial or post-arrest bail granted to the respondent-accused, Nisar Afzal, who was charged along with another under sections 324, 337-F(i), 337-F(ii), and 34 of the Pakistan Penal Code 1860 in F.I.R. No. 285 registered at Police Station Industrial Area, Islamabad. The core legal question concerned whether the bail granted to the accused by the lower court ought to be cancelled on the grounds that the plea of alibi was improperly considered and that the complainant was an injured witness. The Islamabad High Court dismissed the petition, holding that the principles governing bail cancellation are distinct from those for granting bail, and that the discretion exercised by the lower forums was neither perverse nor arbitrary, especially where police inquiries found the accused innocent and supported a genuine plea of alibi. The court laid down the key principle that cancellation requires proof of misuse of bail, abscondance, or tampering with evidence, and that a deeper appreciation of evidence is impermissible at the bail stage.
- Whether bail once granted should be cancelled on the ground that the complainant was an injured witness?
- Can a plea of alibi be considered during tentative assessment at the bail stage?
- What are the primary grounds required for the cancellation of bail already granted to an accused?
- Section 324, Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 337-F(ii), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' RIAZ AHMED KHAN, J.---Nisar Afzal respondent/accused herein was charged in case F.I.R. No,285 dated 6-8-2010, registered under section 324, 337-F(i), 337-F(ii)/34, Police Station Industrial Area, District Islamabad.
2. Report was lodged by petitioner/complainant Raja Shahid Ahmad, wherein he alleged that on 6- 8-2010 at about 9-15 p.m. He left his Adha "Raja Travels" situated at Faiz Abad. He along with his driver namely Ghufran was in car and on the rear seat one Waseem was sitting. The moment vehicle took a turn from the stand and reached at House No,105, two persons appeared there. He recognized them, out of them one was Israr Afzal and other was Nisar Afzal. Nisar Afzal was having .30 bore pistol. Nisar Afzal made a Lalkara and started firing, as a result of which he was hit left side of his chest. The second person also started firing which hit on the vehicle due to which driver got injured. Thereafter, both the accused persons ran away, the police present on the check post took the complainant and injured to hospital, so the instant report was lodged. Both the accused were arrested, however they were released on bail by the learned Judicial Magistrate section 30, Islamabad vide order dated 21-8-2010. The petitioner/complainant moved an application for cancellation of bail of present respondent/accused namely Nisar Afzal but the learned Sessions Judge, Islamabad vide order dated 27-9-2010, dismissed the same. Hence, present petition for cancellation of bail.
3. Learned counsel for the petitioner/complainant submitted that the bail was granted by the learned Judicial Magistrate section 30, Islamabad on the basis of plea of alibi, which could not be considered as a valid reason for releasing respondent/accused on bail. Learned counsel further contended that the petitioner/complainant himself was injured and he has recognized the respondent/accused and in such-like circumstances, respondent/accused could not be released on bail.
4. On the other hand, learned counsel for the respondent/accused contended that the bail order was proper and in accordance with law. Furthermore, the concession of bail has not been misused by the respondent/accused and no valid reason has been put forward for cancellation of bail.
5. 1 have heard the learned counsel for the parties and have also perused the record.
6. The principles for cancellation of bail are totally different from the principles for grant of bail. In the instant case the record shows that two inquiries were conducted and in both these inquiries the accused were found innocent. In addition to that the police had also found that the plea of alibi put forward by the respondent was genuine. Without commenting upon the plea taken by the respondent/accused, it is important to mention here that at bail stage only tentative assessment can be made and deeper appreciation of evidence is not possible, A however it cannot be said that discretion regarding grant of bail was not properly exercised. The impugned order is neither perverse nor arbitrary. There is no evidence that the respondent/accused has misused the concession of bail, there are no chances of abscondance of the respondent/accused and the respondent/accused is not in a position to tamper with the evidence of the prosecution, if any. In these circumstances, the instant petition for cancellation of bail has no force; hence the same is hereby dismissed.