Mst. HAFSA Versus KHAN BACHA

ORDER

ISHTIAQ IBRAHIM, J .---Through this petition, the petitioner seeks cancellation of bail granted to the respondent/accused namely Khan Bacha by the learned Additional Sessions Judge/Judge Child Protection Court, Swat, through order dated 26.11.2020 in case FIR No.540 dated 08.05.2020 registered under sections 376/496A/342/109, P.P.C. read with section 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 and section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 at Police Station Charbagh, District Swat.

2. According to the contents of the FIR, upon receipt of information regarding a wrongful confinement in village Dakorak, SHO of Police Station Charbagh along with other police contingents, raided the house of co-accused Rafi Ullah situated at village Kanri Cheena, Dakorak on 08.05.2020. The door of house was locked, therefore, the police entered the house through a ladder, where complainant/victim Mst. Hafsa and co-accused Rafi Ullah were found present. The victim made a report at 23:15 hours that her telephonic contact started with said co-accused some 10/15 days ago. On 06.05.2020 at 13:00 hours, she made a phone call to the said co-accused to meet her on Chinkolai road and she was waiting there for him along with Warisha, her minor niece aged about 8/9 years. In the meanwhile, co-accused Rafi Ullah came there in a motorcar being driven by an unknown person whose name subsequently became known as Khan Bacha (the respondent/accused herein). The complainant/victim boarded in the said vehicle whereas her niece went home. Later lady co- accused Mst. Ezat Bibi also boarded in the motorcar at Khwazakhela. All the accused took the complainant to village Kanri Cheena Dakorak for the purpose of her illegal marriage with co-accused Rafi Ullah where he subjected her to rape several times on gunpoint.

3. Arguments heard and record perused.

4. In this case, once on merits bail plea of the present respondent/accused namely Khan Bacha has already been declined up to this Court vide order dated 12.06.2020 in Cr. M. (B.A.) No.268-M/2020. Thereafter, he filed second bail petition before the learned trial Court on the fresh ground i.e. submission of challan. Said bail petition was allowed and the respondent/accused was released on bail vide the impugned order. Impugned order shows that the learned trial Court while considering submission of challan by prosecution in the case as a fresh ground has released the respondent/accused on bail. In this regard: perusal of record would shows that the respondent/accused was arrested in this case on 09.05.2020. His bail petition was dismissed by the learned trial Court on 30.05.2020 while same was dismissed by this Court on 12.06.2020. Challan form shows that same had been drawn on 01.06.2020, wherein the petitioner was not declared innocent by the prosecution, while the petitioner had filed Cr. M. (B.A) No.268-M/2020 before this Court on 02.06.2020. Hence, the ground of submission of challan was available to the respondent/accused at the time filing earlier bail application before this Court, while fresh ground means only, that ground which was not available to an accused at the time of filing first/earlier bail petition, which, in the circumstances, is not the case here. In this regard, reliance is placed on the case of 'The State through Advocate General N.W.F.P. v. Zubair and 4 others' (PLJ 1986 SC 369), wherein the august Supreme Court of Pakistan has held that;

"Second or subsequent bail application to same Court lie only on fresh ground, namely ground not existing at time when first application made. Ground available to accused but not taken or not pressed not to be considered as fresh and made basis of any subsequent bail application."

Even otherwise, submission or non-submission of challan under section 173, Cr.P.C. in a case has never been considered by the Superior Courts in such a heinous offence as a fresh ground for bail. Section 497, Cr.P.C, exhaustively deals with post arrest bails which too nowhere empowers the Courts for grant of bail to an accused on the ground of submission or non-submission of challan by the prosecution. It appears that the learned trial Court was not properly assisted regarding the above legal propositions and as such has passed the impugned order without showing any justification on the record besides it has totally ignored order dated 12.06.2020 rendered by this Court in Cr. M. (B.A.) No.268-M/2020.

5. Judgment in the case of `Syed Bashir Shah/Mubashar Shah v. The State' reported as 2020 PCr.LJ 147, High Court (AJ&K), relied upon by the learned trial Court seems to be first matter of bail on the ground of submission of challan before the Hon'ble High Court of AJ&K and in said case, bail was not granted solely on this ground but, inter alia, other grounds including recovery of only 1000 grams chars from the accused, were considered, whereas the offence in this case is heinous and provides capital punishment.

6. It is noteworthy to mention here that in above referred order dated 12.06.2020, once on merits, this Court has already dismissed bail petition of the respondent/accused by holding that he is prima facie connected with the commission of offence, even then in the impugned order the learned trial Court has taken into consideration merits of the case. In this respect, relevant portion of the impugned order of the learned trial Court is reproduced for ready reference;

"Furthermore, in the present case the petitioner/accused is charged for section 109, P.P.C. and not for 376 and 496, for which the co-accused Rafiullah is charged. Evidence is yet to be recorded in main trial and it is for the trial Court to decide as to whether section 109, P.P.C. is attracted to the case of present petitioner/accused or not."

Thus, the bail impugned bail granting order is patently perverse, illegal and definitely needs interference by this Court.

7. For what has been discussed above, this bail cancellation petition is accepted. Resultantly, the impugned order dated 26.11.2020 is set aside and bail granted to the respondent/accused is hereby recalled. Respondent/accused present in the Court is ordered to be taken into custody and sent to Judicial Lockup. Since, trial has already been commenced before the learned trial Court, therefore, the accused be produced before the learned trial Court on the next date of hearing. The learned trial Court is expected to conclude the trial within a shortest possible time in accordance with law. A copy of this order be sent forthwith to the learned trial Court for compliance.

8. Above are the reasons of my short order of the even date, which are tentative in nature and limited only for disposal of this petition, however, the same shall have no bearing on trial of the respondent/accused.

MH/258/P Bail cancelled.