SHAMSHER HAIDER vs KHADIM HUSSAIN and 3 others
This matter comes before the Lahore High Court through a petition filed under Section 497(5) of the Code of Criminal Procedure 1898, seeking the cancellation of pre-arrest bail granted to Respondents No. 1 to 3 by the Additional Sessions Judge, Bhakkar. The core legal question involves whether pre-arrest bail granted to the respondents should be cancelled in light of the delay in lodging the FIR, the bailable nature of certain offences, the submission of the challan, and the absence of any allegation regarding the misuse of the concession of bail. The court held that no grounds existed to interfere with the discretion exercised by the lower court in granting pre-arrest bail, particularly since the challan had already been submitted, there was a fourteen-day delay in the FIR following civil litigation between the parties, and the petitioner failed to establish any misuse of bail. The key principle laid down is that the grounds for the grant of bail and its cancellation are entirely different, and bail once granted should not ordinarily be cancelled when the challan has been submitted unless misuse of the concession is shown.
- Whether pre-arrest bail should be cancelled when the challan has already been submitted before the trial court?
- Does a delay of fourteen days in the registration of the FIR create a prima facie doubt regarding the deliberation of the complainant?
- Are the grounds for the grant of bail different from the grounds for its cancellation?
- Can bail be cancelled without proof that the accused has misused or abused the concession of bail?
- Section 497(5), Code of Criminal Procedure 1898
- Section 107, Code of Criminal Procedure 1898
- Section 151, Code of Criminal Procedure 1898
- Section 448, Pakistan Penal Code 1860
- Section 511, Pakistan Penal Code 1860
ORDER
Through this petition under Section 497(5), Cr.P.C. the petitioner has sought cancellation of bail before arrest allowed to Respondents No, 1 to 3 by the learned Additional Sessions Judge, Bhakkar vide order dated 09.03.2012.
2. The learned counsel for the petitioner contends that the respondents are named in the FIR with specific allegations. Recoveries are yet to be affected from them. During the investigation they have been found involved in this case. The bail granting order is against the settled principles of law. The learned counsel relied upon NLR 2009 SC 446.
3. On the other hand the learned counsel for Respondents No, 1 to 3 contends that the order passed by the learned Additional Sessions Judge is perfectly in accordance with law. Further submits that mala fide of the complainant after joining hands with the police is apparent on the face of the file.
Submits that proceedings under Sections 107 and 151, Cr.P.C. carried out against both the parties on 31.1.2012 and if the respondents are involved in the present occurrence the complainant should have informed the police on that very date but he kept quite for fourteen days because there is delay of fourteen days in registration of the FIR. Challan has been submitted and there is no chance of abscondance of the respondents or their tampering with the prosecution evidence. The learned Deputy Prosecutor-General after going through the record submits that delay has been well explained and during investigation of this case the respondents are found involved in this case.
4. Arguments heard, record perused.
5. The parties to this case are at dagger drawn over an issue of a house and they have indulged themselves into civil as well as criminal litigation. It is admitted at all hands that the FIR in question was registered after suit for possession through partition. There is a delay of fourteen days in registration of the FIR which create an impression that prima facie the complainant has deliberate over the matter and then registered the FIR. The offences under Sections 448 and 511, PPC are bailable whereas there is no credible evidence regarding theft on record to connect the respondents with the crime. The challan in this case has already been submitted before the Court.
It is held in number of judgments by this Court that when challan is submitted in the trial Court bail should not be cancelled. Reliance is placed on the case of Niamat Ullah v. Zulfiqar Ali and 3 others (1999 P.Cr.L.J. 883).
6. Apart from what has been discussed above the grounds for grant of bail and those for its cancellation are entire different. The learned counsel for the petitioner has neither taken any ground in his petitioner that after release on bail the respondents have misused or abused the concession of bail nor has he addressed any argument regarding the same fact. In the circumstances mentioned above I do not find any occasion to interfere into the discretion of pre- arrest bail extended by the learned Additional Sessions Judge Bhakkar in favour of Respondents No, 1 to 3, hence this petition is dismissed.