Mst. NOOR JEHAN and anothers vs THE STATE and anothers

ORDER

' Respondent No,2 stands charged for having committed an offence punishable under section 377, P.P.C. Vide F.I.R. No,117, dated 1-5-1999 registered at Police Station Saidu Sharif, District Swat.

2. Respondent No,2 was granted bail by the Azafi Zaila Qazi/Additional Sessions Judge (Mr. Muhammad Sher Shah), vide his order, dated 11-6-1999. Hence this bail cancellation application.

3. The learned counsel for the petitioner present and heard. Record, available on the file of the case, perused.

4. A perusal of the judgment of Azafi Zaila Qazi/Additional Sessions Judge would show that bail was granted to respondent No,2 on the following two grounds:- Firstly, that the report was lodged after 3 days of the occurrence without explaining the delay and Secondly, that the medical report is not in line with the alleged offence committed by accused- respondent No,2.

5. On a close scrutiny of the material placed on file, I am of the opinion that prima facie reasonable grounds do not exist for believing that respondent No,2 has committed the crime. The reasons for granting bail to him are quite sufficient/convincing and the Azafi Zaila Qazi/Additional Sessions Judge, Saidu Sharif, District Swat has recorded a speaking order. In the circumstances, I do not see any justification as to why the discretion exercised by the Additional Sessions Judge, judiciously, be interfered with by this Court.

6. Even otherwise, strong and exceptional grounds are required for the cancellation of bail granted by a Court of competent jurisdiction because the provisions of section 497(5), Cr.P.C. Are not at all punitive in nature. Resultantly, there is no legal compulsion even for the cancellation of the bail granted in cases which are punishable with death/life imprisonment/ten years.

7. Additionally, the accused is not to be deprived of the benefit of bail whenever reasonable doubt arises about his participation in the crime or about the truth/probability of the prosecution case. In such a situation it would be better to keep him on bail than in the jail during the period of the trial and the personal liberty granted to him by a Court of competent jurisdiction, through grant of bail, should not be snatched away from him unless it becomes absolutely necessary to do so under the law. In this respect, I am supported by the following authority:-- ' Syed Amanullah Shah v. The State PLD 1996 SC 241

(a) Criminal Procedure Code (V of 1898), S.497(5)---Bail granted in abetment/instigation/conspiracy cases should not be cancelled as a matter of course or in routine.

(b) Ibid ----S.497(5)---Very strong and exceptional grounds would be required for cancelling bail granted by a Court of competent jurisdiction as provisions of S.497(5) are not punitive---There is nc legal compulsion for cancelling bail granted in cases punishable with death, life imprisonment or imprisonment for ten years.

(c) Ibid ----S. 497/498---Accused should not be deprived of benefit of bail whenever reasonable doubt arises about participation of an accused person in crime or about truth/probability of prosecution case and evidence proposed to be produced in support of charge---In such a situation, it would be better to keep an accused person on bail than, in jail during trial.

(e) Ibid ----S. 497/498---Personal liberty granted to an accused by a Court of competent jurisdiction through grant of bail, should not be snatched away from him unless it becomes necessary to deprive him of his liberty under law.

8. In the circumstances, I am of the view that this petition for the cancellation of bail is without any substance and is, therefore, dismissed ink limine.