Syed Jawad Shah vs The State and others

ORDER

SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 17.11.2020 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 782 dated. 29.08.2019 under section s 324/34, P.P.C. at Police Station Mozang, Lahore, in the interest of safe administration of criminal justice.

2. Briefly stated the allegation against the petitioner is that he along with his co-accused launched murderous assault upon the complainant by making fire shot but luckily , he remained safe and the bullet while ripping through the sofa hit the window . The petitioner was granted post-arrest bail by the learned High Court vide order dated 21.01.2020 passed in Criminal Miscellaneous No. 64036-B/2019. However , later on the complainant sought cancellation of bail granted to the petitioner by filing Criminal Miscellaneous No. 25653-CB/2020 before the learned Lahore High Court, Lahore, which has been allowed vide order impugned before us. Hence, this petition seeking leave to appeal.

3. At the very outset, it has been argued by the learned counsel for the petitioner that in fact the petitioner seeks the indulgence of this Court on factual as well as on legal premises. Contends that it is established principle of law that the considerations for grant of bail and cancellation whereof are entirely on different footing, which is not established in the instant case. Contend s that in fact the bail was granted by a Single Bench of the High Court whereas the non-bailable warrants of arrest issued by the Trial Court only pertain to attendance of the petitioner before the Court as only the bail bonds were cancelled. Contends that the petitioner is prepared to appear before the Trial Court and undertakes that he will not absent himself from the proceedings. Lastly contends that the petitioner is resident of Balochistan and due to various unavoidable circumstances, he could not appear and it was not intentional rather being resident of a far flung area.

4. On the other hand, learned Law Officer' assisted by learned counsel for the complainant contended that on merits the petitioner has a case for grant of bail but keeping in view his conduct that he did not join the trial and is misleading the Court, he does not deserve any leniency by this Court.

5. We have heard learned counsel for the parties at some length and have perused the record.

There is no denial to this fact that the superior courts of the country since long have issued guidelines wherein the details of the considerations for the grant of bail and cancellation whereof are. highlighted. Once an accused is granted bail on the basis of tentative assessment of evidence available on record then for its cancellation, exceptional strong reasons are required. In a recent judgment reported as Samiullah v. Laiq Zada (2020 SCMR 1115), this Court has enunciated the following principles for cancellation/ recalling of bail:- "i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice. ii) That the accused has misused the concession of bail in any , manner . iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses. iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of court. v) That the accused has attempted to interfere with the smooth course of investigation. vi) That accused misused his liberty while indulging into similar offence. vii) That some fresh facts and material has been collected during the course of investigation with tends to establish guilt of the accused.

6. When we confronted learned Law Officer and learned counsel for the complainant to show us from the record as to whether the petitioner is entitled for the restoration of bail granted by the learned Single Bench of the High Court before the Trial Court on the condition of furnishing fresh bail bonds, both of them were of the opinion that as the bail has been granted by a superior court, which cannot be recalled by the learned Trial Court, hence, the only requirement of law is to furnish fresh bail bonds. This is an admitted fact that the petitioner hails from a far-flung area of Balochistan (Zhob) and the argument advanced by the learned counsel for the petitioner that the petitioner could not appear before the Trial Court due to unavoidable circumstances cann ot be ignored altogether . Even otherwise, we have noticed that the petitioner has made out a case on merits as he was taken into custody by the local police and he remained behind the bars for more than 4-1/2 months in a case of ineffective firing. Learned counsel for the complainant categorically stated before the Court that apart from the conduct of the petitioner , on merits he has made out a case and even before the learned Single Bench of the High Court, the complainant had made a statement that he has no objectio n if bail is granted to the petitioner . The liberty of a person is a precious right guaranteed under the Constitution of Islamic Republic of Pakistan, 1973. Denial of liberty of a person is a serious step in law, therefore, the Courts should apply judicial mind with deep thought for reaching at a fair and proper conclusion. In this view of the matter , we are constrained to observe that the learned High Court while recalling the bail granted to the petitioner has fell into error .

7. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order dated 17.11.2020 passed by the learned Single Judge of the High Court. The petitioner is admitted to pre- arrest bail subject to his furnishing bail bonds in the sum of Rs.200,000/- with two sureties in the like amount to the satisfaction of learned Trial Court. Before parting with the order , we direct the petitioner to join the trial proceedings and remain present on each and every date.