NOOR KHAN vs THE STATE and 2 others
The petitioner, Noor Khan, filed a criminal application seeking the cancellation of pre-arrest bail granted to respondents Muhammad Yar and Allah Wasaya by the Additional Sessions Judge-IV, D.I. Khan, in a case registered under sections 379, 427, 447, 506, and 34 of the Pakistan Penal Code. The core legal question concerned whether the pre-arrest bail granted to the accused should be cancelled given the background of ongoing civil litigation between the parties over the disputed property and the absence of direct eyewitnesses or recovery of stolen items. The Peshawar High Court dismissed the bail cancellation application, holding that criminal charges in the context of civil disputes often raise questions of mala fide and further inquiry, and that once pre-arrest bail is granted, strong and exceptional grounds—such as misuse of concession or tampering with evidence, which were absent here—are required for its cancellation. The court laid down the principle that the principles governing the grant of bail and its cancellation differ, and pre-arrest bail will not be interfered with unless the impugned order is perverse or fanciful.
- Whether pre-arrest bail once granted can be cancelled without strong and exceptional grounds?
- Does the existence of prior civil litigation between the parties over the disputed property make the criminal charge a matter of further inquiry?
- Is the misuse of the concession of bail or tampering with prosecution evidence necessary for considering bail cancellation?
- Whether a criminal charge lodged amidst a civil dispute to exert pressure warrants the recall of pre-arrest bail?
- Section 379, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 447, Pakistan Penal Code 1860
- Section 506, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 22-A, Code of Criminal Procedure 1898
- Section 154, Code of Criminal Procedure 1898
' QAISER RASHID KHAN J.---Noor Khan, complainant/ petitioner, has filed this application for the cancellation of pre-arrest bail granted to Muhammad Yar and Allah Wasaya, accused/respondents Nos.1 and 2, by the learned Additional Sessions Judge-IV, D.I. Khan vide order dated 14-1-2012 in case F.I.R. No,394 dated 24-12-2011 of Police Station Paroa, District D.I. Khan registered under sections 379/427/447/506/34, P.P.C.
2. According to the report lodged Noor Khan; complainant/ petitioner, land measuring 99 kanals situated in Thatta Solhan originally belonged to Haji Shah Jehan which was in possession of Javed Iqbal and Muhammad Yar who vide, agreement deed dated 15-10-2b11 had relinquished the possession in favour of Haji Shah Jehan and delivered possession of 50 kanals to him. In order to construct a room thereon, different construction materials including 900 cemented blocks valuing Rs,22,500, sand worth Rs,1,400, seven bags cement valuing Rs,2,905 and a water-tap for irrigation valuing Rs, 3,500 were placed on 18-10-2011 at 1100 hours on the spot in identified by Muhammad Yar. Habib Khan and Hussain along with five labourers were also present on the spot. On the following day, a water-tap was installed and on the third day, all the said articles were taken away by the accused/respondents and on the failure of negotiations through jirga, the complainant as special attorney of Shah Jehan reported the matter to the police on the fifth day of the occurrence i,e,, on 25-10-2011. On the inaction of the police, the complainant moved an application under section 22-A, Cr.P.C. Before the learned Additional Sessions Judge/Justice of Peace, who in turn directed the police to proceed under section 154, Cr.P.C. And then the F.I.R. Ibid.
3. Learned counsel for the complainant/petitioner vehemently criticized the grant of pre-arrest bail to the accused/respondents by the learned court, inter alia, on the grounds that both the accused/ respondents were directly charged by the complainant, the report after negotiations was lodged with all reasonable promptitude and the circumstances depicted the commission of offence by the accused/ respondents. He, therefore, urged that the accused/respondents were not entitled to the grant of extraordinary concession of pre-arrest bail which is liable to be recalled.
4. Learned D.A.-G. Supported the arguments of learned counsel for the petitioner.
5. Conversely, learned counsel for the accused/respondents defended the impugned order on the grounds that civil litigations between the parties are pending adjudication over the possession of the same land which is presently in possession of Muhammad Yar accused/respondent, while the complainant Noor Khan and Shah Jehan have claimed that Muhammad Yar accused/respondent and his son Javed Iqbal had given possession of the disputed land to Shah Jehan through deed dated 15-10-2011. They thus argued that reasonable grounds exist for believing that the accused/respondents have been falsely charged by the complainant as there are sufficient grounds for further inquiry into their matter.
6. 1 have carefully gone through the record of the case and considered the arguments of the learned counsel for the parties.
7. Perusal of the record depicts that the main bone of contention is the disputed property over which Shah Jehan (through Noor Khan) and the accused/respondents have locked horns and are engaged in civil litigations. The alleged occurrence is prima facie the direct offshoot of the same. In such cases, charging a rival, in a criminal case is not a rare phenomenon so as to arm-twist him and extract benefit in the civil dispute. Given the fact that neither the complainant nor for that matter anybody else is a witness of the alleged theft and trespass committed by the accused/respondents nor the recovery of the alleged items have been effected from them, the element of mala fide on the part of the complainant becomes evident and thus safely takes the matter to one of further inquiry.
8. Furthermore, principles for grant of bail and its cancellation are quite different from each other.
Once bail is granted by a competent court of law, then strong and exceptional grounds are needed for its cancellation which are lacking in the case in hand. Neither there is any charge of misuse of the concession of bail by the accused/respondents nor there is any allegation of tampering with the prosecution evidence against them. Therefore, the impugned order is neither perverse nor fanciful which is accordingly upheld. Wisdom is sought from Muzzafer Iqbal v. Muhammad Imran Aziz and others (2004 SCM R 231).
9. Finding no substance in this bail cancellation application, the same is hereby dismissed.
10. Before parting with this judgment, it is observed that the observations made in this order are tentative in nature and shall in no manner prejudice the proceedings during the trial of the case.