ZAFAR IQBAL vs Raja ASIM RIZWAN and another
This criminal petition was filed by the petitioner seeking the cancellation of pre-arrest bail granted to respondent No. 1 by the Additional Sessions Judge, Islamabad, in a case registered under sections 302, 342, and 34 of the Pakistan Penal Code 1860 in respect of an unnatural death. The core legal question was whether the pre-arrest bail granted to the respondent should be cancelled based on his alleged involvement and the testimonies of subsequent witnesses, given that considerations for bail cancellation differ from those for grant of bail. The Islamabad High Court dismissed the petition, holding that bail once granted by a competent court will not be cancelled unless the bail-granting order is perverse or there is an allegation that the accused has misused the concession of bail, neither of which was established. The key principle laid down is that the considerations for granting bail and cancelling bail are entirely different, and bail ought not to be cancelled merely to wreak vengeance or when no useful purpose would be served by sending the accused behind bars, especially after the submission of the challan.
- What are the distinct considerations for the grant of bail versus the cancellation of bail?
- Under what circumstances can pre-arrest bail granted by a competent court be cancelled?
- Does the submission of a challan affect the court's inclination to cancel bail?
- Can bail be cancelled merely to satisfy the vengeance of the complainant party?
- Section 302, Pakistan Penal Code 1860
- Section 342, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
AAMER FAROOQ, J.---Through the instant petition, the petitioner seeks cancellation of bail granted to respondent No,1 by the learned Additional Sessions Judge (West), Islamabad vide order dated 28.10.2017 in case FIR No,143, dated 14.07.2017 for offences under sections 302, 342, 34, P.P.C. registered at Police Station Margalla, Islamabad.
2. Learned counsel for the petitioner, inter alia, contended that the bail granted to the respondents was on erroneous considerations as he was involved in the case; that the impugned order is against the fact and the law; that the doctor concluded that all the injuries inflicted on the deceased Muhammad Awais are ante-mortem and not post-mortem; that the deceased was tortured before his death and he died unnatural death; that body of the deceased was recovered from the premises of respondent No,1; that the co-accused i,e, Raja Kamran is the real brother of respondent No,1, whom has been declared as mentally incapable and obtained his Guardianship Certificate; that the prerequisite for granting of bail before arrest are mala fide and ulterior motives which was neither pleaded nor has been addressed by the learned Trial Court; that the unnatural death has been confirmed by the doctor.
3. Learned counsel for respondent No,1, inter alia, contended that in the interim challan presented by respondent No,2 which exonerated him from the charge on the basis of which he was granted bail before arrest; that subsequent to the said fact two witnesses have been added which clearly indicates that the statements recorded by them are unnatural, hence, the prosecution case has been manipulated and maneuvered; that the bail granted can only be set aside if the same is perverse.
4. The arguments by the learned counsels for the parties have been heard and record perused with their able assistance.
5. Initially when the aforenoted FIR was lodged Respondent No, 1 was not nominated as accused in the same, however, he was nominated through supplementary statement. Respondent No,1 applied for bail before arrest, which was allowed by the learned Additional Sessions Judge, Islamabad on the ground that subsequent involvement of the respondent is not based on bona fide and that there is nothing incriminating against him and sending him behind bars shall not serve any fruitful purpose.
6. It is trite law that considerations for grant of bail are different from the cancellation of bail.
Generally, the bail granted by the court of competent jurisdiction is not cancelled unless the bail granting order is perverse or there is allegation that the accused has misused the concession of bail. In so far as the latter ground is concerned, the same was never argued before the court. The thrust of the arguments by the learned counsel of the Petitioner was that in light of the statement of the witnesses respondent No, 1 is involved in the matter and needs to be put behind bars.
7. In interim challan/report under section 173, Cr.P.C. filed by the police on 14.7.2017, respondent No, 1 was found not to be involved in the case, hence was not arrayed as an accused. However, during the course of subsequent investigation there were two witnesses who made statements that respondent No, 1 is involved in the matter and on the basis thereof supplementary challan was filed on 8.1.2018 in which the name of respondent No, 1 appears in Column No, 4, meaning thereby he is an accused in the matter, but on bail.
8. The Honourable Supreme of Pakistan in case titled as Shahid Imran v. The State (2011 SCM R 1614), observed as follows: "The considerations for grant of bail and those for cancellation are entirely different. No allegation has been leveled against the petitioner regarding any misuse or abuse of concession of bail by him and even today the complainant has not been able to level any such allegation against the petitioner. It had also not been appreciated by the learned judge in chamber of the Lahore High Court, Lahore that the investigation of this case had already been finalized and a challan had been submitted before the learned trial court and at such stage no useful purpose was likely to be served by cancelling the petitioner's bail. It is trite that bail ought not to be cancelled merely for wreaking vengeance of the complainant party."
Similar observations were made by the august apex court in case reported as Abdul Rasheed Khan v. Zahoor Ahmed Malik (PLD 2011 Supreme Court 210), wherein it was observed as follows:-- "We have been informed that Challan has already been submitted in this case. This Court is generally slow in cancelling an accused person's bail at such a stage of a criminal case. No allegation has been by the petitioner, the state or National Accountability Bureau regarding misuse or abuse of concession of bail."
The Honorable Supreme Court reiterated that the bail cannot be cancelled to wreak vengeance to the complainant party.
9. As stated above supplementary challan was filed on 8.1.2018 wherein respondent No,1 is an accused in the case. Therefore, no useful purpose shall be served by sending the referred respondent behind bars at this stage. There is no allegation of abuse of concession of bail by respondent No, 1.
10. In view of above, the instant petition is without any merit and is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.