TAHIR SHAH NAWAZ vs THE STATE and 2 others
This criminal miscellaneous application was filed under Section 497(5) of the Code of Criminal Procedure 1898 for the cancellation of pre-trial bail granted to the accused respondents by the Additional Sessions Judge in case F.I.R. No. 153 registered under Sections 120 and 115 of the Pakistan Penal Code 1860 at Police Station Gomal University D.I. Khan. The core legal question was whether the bail granted to the respondents by the lower court was arbitrary and warranted cancellation. The Peshawar High Court held that Section 115 of the Pakistan Penal Code 1860 is bailable, the applicability of Section 120 of the Pakistan Penal Code 1860 requires determination at trial, investigation was complete, the accused had not misused the concession of bail, and the complainant had not challenged the bail granted to the main co-accused. Consequently, the court upheld the impugned order and dismissed the bail cancellation application, affirming the principle that bail once granted should not be interfered with lightly absent misuse or exceptional circumstances.
- Whether bail granted by a lower court can be cancelled under Section 497(5) of the Code of Criminal Procedure 1898 without proof of misuse of the concession?
- Is Section 115 of the Pakistan Penal Code 1860 a bailable offence?
- Does the completion of investigation and lack of active misuse of bail justify the dismissal of a bail cancellation application?
- Section 497(5), Code of Criminal Procedure 1898
- Section 115, Pakistan Penal Code 1860
- Section 120, Pakistan Penal Code 1860
' ATTAULLAH KHAN, J.---Tahir Shah Nawaz petitioner has filed this application under section 497(5), Cr.P.C. For the cancellation of bail granted to Khalid Shah Nawaz and Salim Nawaz, accused/ respondents by the learned Additional Sessions Judge D.I.Khan vide order dated 30-6-2010 in case F.I.R No, 153 dated 8-6-2010 under sections 120/115, P.P.C., of Police Station Gomal University D.I.Khan.
2. The allegations against the accused/respondents as per the contents of the F.I.R lodged by the petitioner/complainant are that on their instigation, deliberation and consultation, Abdul Lateef Informer had come to the lands jointly owned by them allegedly on receipt of rupees five thousands from the accused/respondents.
3. Learned counsel for the petitioner argued that the accused/ respondents have not proved any mala fide on the part of the prosecution or complainant, therefore, the impugned order of their release on bail is arbitrary. He argued that through the impugned order, the prosecution is deprived of investigation of the case.
4. On the other band, learned counsel for the accused/respondents argued that investigation in the case is complete and the accused/ respondents are no more required for the purpose. He argued that the accused/respondents are not directly charged by the complainant in the report.
He submitted that neither any overt act has been assigned to them nor they have misused the concession of bail.
5. I have gone through the record and considered the arguments of the learned counsel for the parties.
6. The record shows that the accused/respondents are charged under sections 120/115 PPC. Section 115, P.P.C. Is bailable while the applicability of section 120, P.P.C. Is yet to be determined at trial. There is also no material on record to show that the accused/respondents have mis-used the concession of bail. Investigation in the case is complete and the accused/respondents have remained associated therewith.
7. It is also worth consideration that the petitioner has not challenged the bail granted to the main accused Abdul Lateef who was allegedly caught hold on the spot.
8. Therefore, in view of the dicta handed down by the apex Court in 1984 SCM R 1380 and 1976 SCM R 360, no good ground exists for interfering in the impugned order which is accordingly upheld and the instant bail cancellation application is accordingly dismissed.