Hadi Bakhsh vs Muhammad Arif and 2 others
This matter concerns an application filed under Section 497(5) of the Code of Criminal Procedure 1898, seeking the cancellation of bail granted to the respondents by the Judicial Magistrate in connection with FIR No. 90 of 2019, registered under Sections 337-F(i), 147, and 149 of the Pakistan Penal Code 1860. The core legal question was whether the bail granted to the accused should be cancelled. The Balochistan High Court dismissed the application, holding that the offences charged did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, making bail the rule and refusal the exception. The Court emphasized that deeper appreciation of evidence is impermissible at the bail stage and that cancellation of bail requires strong, exceptional grounds, such as evidence of tampering with prosecution evidence or hindering the complainant, which were absent in this case. The key principle laid down is that once bail is granted based on a tentative assessment of evidence, it cannot be cancelled without demonstrating that the accused has misused the concession of bail.
- Does an offence falling outside the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 entitle an accused to bail as a rule?
- Is deeper appreciation of evidence permissible during the consideration of a bail cancellation application?
- What specific grounds are required to justify the cancellation of bail once it has been granted by a court of competent jurisdiction?
- Section 497(5), Code of Criminal Procedure 1898
- Section 337-F(i), Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
ABDUL HAMEED BALOCH, J.---The applicant/ complainant filed an application under section 497(5), Crimina l Procedure Code for cancellation of bail of private respondents with the prayer: "In view of the above it is, therefore, accordingly prayed that this Hon'ble Court may graciously be pleased to cancel the bail granting orders dated 5.10.2019 and 9.10.2019 passed by learned Judicial Magistrate Dera Murad Jamali and take into arrest the accused persons and investigate the matter impartially , in the interest of equity , fair play and justice."
2. The concise facts of the case are that the complainant got registered FIR No. 90 of 2019, under sections 337- F(i), 147, 149, Pakistan Penal Code (P.P.C.) with Police Station Saddar Dera Murad Jamali, on 7th September , 2019, with the allegations that accused/respondents along with co-accused assaulted him with kicks, fists and dandas, due to which he became injured. On this report instant case was registered.
3. After registration of FIR the accused/respondents were arrested, whereafter , they approached learned Judicial Magistrate Dera Murad Jamali for their release on bail, which was allowed vide orders dated 5th October , 2019 and 9th October , 2019. The applicant/complainant being aggrieved of the same preferred application under section 497(5), Cr.P.C. for cancellation of bail before Additional Sessions Judge, Naseera bad at Dera Murad Jamali, but the same was declined vide order dated 30th December , 2019, hence the applicant/ complainant is before this court for cancellation of bail granted to the accused/respondents.
4. Heard the learned counsel for the applicant/ complainant as well as learned Additional Prosecutor General and also gone through the material available record. The punishment provided in the section mentioned in FIR does not attract prohibitory clause of section 497, Cr.P.C. It is held by apex court that where the punishment provided for the offence does not fall within the ambit of prohibitory clause of section 497, Cr.P.C., the bail is a rule and refusal an exception. Reliance is placed on the case of Tariq Bashir v . The State PLD 1995 SC 34 .
5. Deeper appreciation of evidence is not permissible in case of bail or cancellation of bail. Where the court of competent jurisdiction granted bail strong grounds are required for its cancellation. For B cancellation of bail the court has to see whether the accused after release on bail is creating hindrance for the complainant party or tampering with the prosecution evidence and misusing the concession of bail. The record depict that all ingredients are lacking in favour of the complainant.
6. It is settled law that once an accused is granted bail on the basis of tentative assessment of evidence available on the record then for its cancellation there must be exceptional strong reasons are required. It is held by the Honorable Supreme Court in the case of Nasir Khan v . Waseel Gul 2011 SCMR 710 : "7. No doubt, it is true that respondent is one of the accused persons charged in a heinous offence but it is equally true that mere heinousness of an offence does not disqualify an accused person from the relief of bail, if otherwise his case is found fit for grant of bail. In the instant case, bail has been granted to respondent for cogent and valid reasons which are not open to legitimate exception. In Suba Khan v. Muhammad Ajmal and 2 others (2006 SCMR 66) it was observed by this Court that "this Court in a number of cases interpreted the provisions of section 497(2), Cr.P.C. and held that main consideration for grant of bail under subsection (2) of section 497, Cr. P.C. is that if the Court on the basis of tentative assessment of evidence, forms an opinion that prima facie there were reasonable grounds to believe that j accused has not committed an offence with which he was being charged, he would be allowed bail by virtue of subsection (2) of section 497, Cr .P.C. as of right."
In view of the above, I find no merit in the application which is hereby dismissed.
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