2004 PLP 1931 (MLD)

By this order, I propose to dispose of Cr. M.B.C. No.48 of 2004 which has been filed by complainant Mst. Tehmeena Bibi for cancellation of bail granted to respondent Aslam by learned Additional Sessions Judge. Lakki vide orders dated 14-1-2004, in case F.I.R. No.186 dated 19-6-2003 registered under sections 354/452, P.P.C. At Police Station, Tajori.

2. On 19-6-2003 at 08-30 hours Mst. Tehmeena complainant reported the matter to Gul Nawaz Khan, S.H.O., Police Station, Tajori to the effect that her marriage was solemnized with Umar Daraz tweleve years ago and out of the wedlock, she has given birth to five sons who are alive. Her husband lives in Islamabad to take out his livelihood. On the preceding night, she was asleep in her house with his children and electric bulb was lit in the courtyard. Muhammad Aslam respondent entered her house by scaling over the wall. He caught hold of her and belaboured her. She raised hue and cry which attracted Muhammad Khan, brother of her husband, her father-in-law Kabal Khan and other womenfolk. In the meanwhile, Muhammad Aslam succeeded in running away.

3. Mr. Sultan Shehryar Khan Marwat, Advocate for the petitioner contended that respondent stands singularly charged in the F.I.R. For commission of the occurrence which is supported by ocular account and that respondent being co-villager of the petitioner was in the knowledge that husband of the petitioner was away to Islamabad in connection with earning his livelihood. Additionally, he urged that the respondent remained fugitive from law for a sufficient long time and that he is also involved in two other criminal cases which charge exhibits his past conduct and disentitles him for the relief of bail. On the strength of these submissions, learned counsel argued that there was no justifiable reason for release of the respondent on bail and the impugned order cannot be allowed to remain intact.

4. Contrarily, Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State and Mr. Abdul Latif Khan Baloch, Advocate for the respondent supported the impugned order and maintained that keeping in view the factum of delay in lodging of the F.I.R. And other attending circumstances of the case, learned Additional Sessions Judge was quite justified in releasing the respondent on bail and no legitimate exception can be taken to it. In this regard, reliance was placed on Usman v. Muhammad Azam and another (2001 PCr.LJ 1461 Peshawar) and Nasir and others v. The State (NLR 1991 Criminal 527 Lahore).

5. By now it is well-settled that consideration for the cancellation of bail are different from the considerations for the grant of bail. Section 497(1), Cr.P.C. Prohibits the grant of bail for offences punishable with death or imprisonment of ten years or over. Section 497(5), Cr.P.C. Does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life and even if the grant of bail is prohibited under section 497(1), Cr.P.C. The discretion is left in the Court under section 497(5), Cr.P.C. Which is pari materia with the principles which apply to the setting aside of the orders. 6.Having heard the arguments of learned counsel for the parties and going through the record, I am convinced that the learned Additional Sessions Judge has properly exercised the discretion vested in him because section 354, P.P.C. Is bailable whereas punishment for offence under section 452, Cr.P.C. Does not fall within the prohibitory limb of Section 497, Cr.P.C. The bail has been granted to the respondent for valid reasons. It needs no reiteration that once bail has been granted to an accused person, very strong and exceptional grounds are required for cancellation of the same which are lacking in this case. There is no allegation of misuse of concession of bail on the part of respondent.

7. For what has been stated above, this petition being without substance is hereby dismissed. H.B.T./221/P Petition dismissed.