ZAINUDDIN Versus FARMAN
ATTAULLAH KHAN J.--- Zainuddin petitioner has filed this petition for the cancellation of pre-arrest bail granted to Farman, accused/respondent, in case F.I.R. No.636 dated 15-10-2009 under sections 324/34, P.P.C. of Police Station City Bannu, by the learned Additional Sessions Judge-I Bannu vide order dated 12-1-2010.
2. According to the report of the complainant/petitioner lodged on 15-10-2009 at 1620 hours in the emergency room of Civil Hospital Bannu in injured condition, on the eventful day he was busy in selling `Choley' on the cart in front of Police Station Saddar Bannu as usual when at about 1530 hours Shah Qiaz armed with Kalakov, Farman armed with pistol and their fatlier Raqibaz came there. Of them, the first two under the command of their Father Raqibaz tired at him with which he was injured whereafter they decamped from the spot. Motive for the offence was given to be money dispute between the parties.
3. Learned counsel for the petitioner argued that the accused/respondent has been granted pre-arrest bail and the requirement of law, i.e. mala tide on the part of prosecution is not proved and instead the learned lower Court has discussed the merits of the case very deeply which is not appreciated because only tentative assessment is to be made at the stage of bail.
4. On the other hand, learned counsel for the accused/respondent argued:--
Firstly, that there is inordinate and unexplained delay of two hours in lodging the report;
Secondly that the witnesses are not supporting the prosecution case and,
Thirdly that the medical report points out a simple injury on the person of the victim/complainant.
5. I have perused the record and considered the arguments of the learned counsel for the parties.
6. In this case, the accused/respondent has been granted pre-arrest bail. The settled law is that the accused must show mala fide on the part of the complainant for his false implication. In its impugned order, the learned trial Court has discussed the site plan, absence of independent witnesses as well as non-corroboration. It is also mentioned in the impugned order that the Investigating Officer did not recover blood from the spot and no empty was recovered.
7. If the aforesaid grounds are examined which are grounds prevailed with the learned Court for pre-arrest bail, one may conclude that the lower Court has discussed merits of the case in detail which is not permissible at this stage and in this way he has assumed the role of the trial Judge.
8. Normally, the bail granted by the Court of competent jurisdiction is not interfered with unless it is found that the same was granted in violation of the established principles enunciated by the Superior Courts for grant of bail. In this respect, I may rely on MLD 2010 Peshawar 24. The lower Court while granting bail has also taken into consideration the investigation of the Investigating Officer to the effect that he did not recover blood and empties from the spot. The latest law reported on the subject is PLD 2009 SC 440 and its relevant portion reads as under:--
"This is also to be noted that during the course of investigation the police is not required to examine hundreds of people in order to inquiry as to whether the accused is involved in the offence or not. They are required to consider the material available on the record and not disregard the eye-witnesses in support".
It is held in the dictum of the Apex Court that the opinion of the Investigating Officer cannot be taken into consideration at the bail stage.
9. After detail discussion, the august Supreme Court cancelled the pre-arrest bail granted to the accused/respondent by the High Court in the above referred case.
10. Pre-arrest bail can only be considered when it is proved that involvement of the accused in the case is based on mala tide by the prosecution. In this respect, I may refer to 2003 SCMR 68 wherein it has been held.--
"In these judgments this Court prominently has pointed out that concession of bail before arrest is granted to an accused if it is established that his involvement is based on mala fide by the prosecution. Admittedly, no mala fide has been prima facie established against the petitioner to involve the respondent along with others to be the accused for the commission of the offence".
11. Principles for grant of bail and cancellation thereof are altogether different from each other. For cancellation of bail, strong and exceptional grounds are required. In the case in hand the complainant has succeeded in establishing grounds which are also strong in nature.
12. As far as the stand of the learned counsel for the accused/ respondent is concerned, the arguments advanced by him relate to the deeper appreciation of evidence which could not be taken into consideration at this stage of bail and are only relevant at trial.
13. Keeping in view the above circumstances, while confirming the pre-arrest bail granted to the accused/respondent, the Court below has committed serious error and miscarriage of justice has been caused while passing the impugned order.
14. Consequently, this application is allowed and the impugned order of confirming pre-arrest bail to the accused/respondent is recalled. He is present in Court, taken into custody and sent to jail to face trial.
15. Above are the reasons for my short order of even date.
H.B.T./149/P Appeal allowed.