FAZAL HAMEED vs KAMRAN and 5 others
This petition was filed by the injured complainant seeking the cancellation of bail granted to the accused respondents by the Judicial Magistrate in a case registered under sections 324/148/149 of the Pakistan Penal Code 1860. The petitioner argued that subsequent statements recorded under sections 161 and 164 of the Code of Criminal Procedure 1898, combined with forensic reports, provided sufficient evidence to warrant the recall of bail. The respondents contended that the FIR was initially lodged against unknown persons, the naming of the accused was belated, and there was no misuse of the bail concession. The Court observed that the initial FIR did not name the accused, the subsequent statements were recorded without disclosing the source of identification, and no identification parade had been conducted. Emphasizing that the considerations for granting bail differ from those for cancellation, the Court held that the discretion exercised by the Magistrate was neither perverse nor arbitrary. The Court concluded that the case required further inquiry and dismissed the petition, noting the absence of evidence regarding misuse of bail or tampering with evidence.
- Are the considerations for the grant of bail identical to those for the cancellation of bail?
- Does a belated statement recorded under section 164 of the Code of Criminal Procedure 1898, without disclosing the source of identification, constitute sufficient grounds for the cancellation of bail?
- Can bail be cancelled in the absence of allegations regarding the misuse of the concession of bail or tampering with evidence?
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
' ATTAULLAH KHAN, J.---One Fazal Hameed, injured of case F.I.R. No, 139, dated 22-3-2011 registered under sections 324/148/149, P.P.C. Of Police Station Akbar Pura, District Nowshera, has moved this application for recalling the bail granted to accused/respondents by the learned Judicial Magistrate-III, Nowshera, dated 4-4-2011, on the ground that after getting reliable trustworthy evidence regarding guilt of the accused/respondents, the petitioner has charged them in his statements recorded under section 164, Cr. P. C . And even 161 Cr. P.0 . ; that the recovery of empties of 222 and 30 bores from the spot and the FSL report showed that the Kalakoav empties matched with the weapon recovered which was a sufficient evidence for rejection of concession of bail to the accused/respondents and that the order granting bail being perverse; capricious and arbitrary merits recall as it is against the norms of justice laid down by the superior courts.
' It will not be out of place to mention it here that petitioner's effort to get the bail granting order cancelled from the court of learned Additional Sessions Judge, also proved in vain.
2. The learned State counsel assisted by the learned counsel appearing on behalf of the accused/respondents contended that the occurrence took place in the dark hours of night and in the report none was charged and that because of belated charge by the petitioner then injured naming the accused/respondents as one of the assailants, require further probe; that the trial of the case is in progress and thus in these circumstances, the order granting bail being proper, merits no interference especially when there is no allegation against the accused/respondents as to the misuse of the concession thus granted by the Judicial Magistrate.
3. I have gone through the record carefully and considered the submissions made by the learned counsel for the parties.
4. Perusal of the F.I.R. Would reveal that none is charged in the case by the complainant. The petitioner who was injured in the case charged the accused/respondents in his statement recorded under section 161, Cr.P.C. On 25-3-2011 and under section 164, Cr.P.C. On 21-4-2011 but in both the statements which were recorded belatedly, the injured petitioner has not disclosed the source of information or satisfaction which enabled him to charge the accused/respondents. No identification parade has been held regarding guilt of the accused/ A respondents. Besides, there is no direct evidence against them and the evidentiary value of belated statement recorded under section 164, Cr.P.C. Would be seen at the trial. There are no allegation of misuse of the concession of bail by the accused/respondents nor it is case of the prosecution that there is any apprehension of tampering with the evidence on the part of accused/respondents. Apart from above, the trial of the case has commenced.
' Considerations for grant of bail and cancellation of bail are totally different. When seen in the above backdrop of the case, the discretion exercised by the learned Judicial Magistrate granting bail to the accused/respondents does not appear to be perverse or arbitrary or whimsical.
Therefore, the respondents have rightly been extended the concession of bail as their case is purely of further enquiry. In these circumstances, this petition stands dismissed.