2013 PLP 1293 (YLR)

ROOH-UL-AMIN KHAN, J.

Petitioner-complainant seeks cancellation of bail of respondent-accused granted by learned Additional Sessions Judge, Lakki Marwat vide order dated 15-11-2012, in case F.I.R. No.469, dated 25-8-2012, under sections 397/302/201/202/203/411/ 148/149, of Police Station Lakki Marwat.

2. The prosecution case, as evident from the First Information Report, is that on the day of occurrence complainant Sharifullah along with his cousin deceased Kiramatullah was riding Motorcycle No.Bannu/0120, and when reached the crime spot, an unknown person intercepted them, who tried to snatched the motorbike and on their resistance, he and his comrades sitting on the road side, started firing at the deceased, as a result of which, he was hit and succumbed to the injures on the way to hospital. The accused took away the motorbike and fled away towards Dudah. Hence, this case.

3. Learned counsel for the petitioner-complainant argued that respondent-accused is not charged by name by the complainant rather it was stated by him that he could identify the accused; that respondent-accused during investigation has confessed his guilt, as a result, the stolen motorcycle was recovered on his discovery, and pointation memo to this effect, was also prepared on his pointation; that accused-respondent is hardened and desperate criminal and remained involved in such like cases. Learned counsel referred to registration of some F.I.Rs. and contended that all these pieces of evidence prima facie connect respondent-accused with the commission of offence but the learned lower Court by not adverting to these material aspects of the case has wrongly released him on bail, which order is liable to be set aside and bail of the respondent-accused be re-called.

4. As against that, learned counsel for respondent-accused argued that considerations for cancellation of bail are altogether different from that of grant of bail. He contended that some strong and exceptional grounds are required to curtail the liberty of a person which the petitioner has failed to bring on record. He further contended that alleged recovery of the alleged stolen motorcycle is also doubtful which makes the case in hand that of further inquiry; hence, this petition is liable to be dismissed.

5. I have given my anxious consideration to the respective submissions of the learned counsel for the parties and have gone through the record with their able assistance.

6. Admittedly, respondent-accused is not charged by name in the F.I.R. The act of firing has been attributed to all the accused. The firing of which accused proved fatal is yet to be determined by the Trial Court. No identification parade of respondent-accused has been conducted through complainant which is the most important evidence in such like case. Complicity of respondent-accused in the case in hand is on the basis of charge by co-accused Muhammad Rafiq, who is enjoying his liberty in quince of the order dated 28-9-2012, passed by Judicial Magistrate Lakki Marwat.

7. The main contention of the learned counsel for the petitioner is the discovery and recovery of stolen motorcycle on the pointation of respondent-accused which prima facie seems illusive, concocted and planted. Regarding number of the said motorcycle there are three versions, one is that the motorcycle concealed and recovered on the pointation of accused was bearing No.120-KPK, the second given by the father of complainant in the superdari application is 2010-02-0186 while the third one furnished by the Investigating Officer and shown in the photographs is 0120, which of the three versions is correct, is yet to be determined during trial after recording evidence, however, it makes the case in hand that of further inquiry. Mere registration of F.I.Rs. of a like nature against accused without any judgment of conviction may not be a ground for re-calling the bail of respondent-accused.

8. Moreover, principles governing the grant of bail and the cancellation of bail stood substantially on different footings. Once bail has been granted by a competent Court of law, strong and exceptional grounds are required for cancellation thereof and it has to be seen as to whether the bail granting order is patently illegal, erroneous, and factually incorrect and has resulted in miscarriage of justice. Courts are always slow to cancel bail already granted as the liberty of a person cannot be curtailed on flimsy grounds because cancellation of bail is a harsh step as it interfered with the liberty of an individual hence it must not be resorted to lightly and power to take back the accused in custody is to be exercised with care and circumspection. Apart from this, section 497(5), Cr.P.C. did not command the Court to cancel the bail even when the offence was punishable with death or imprisonment for life and even where the grant of bail is prohibited under section 497(1), Cr.P.C. No interference with bail granting order is required unless the same lacked reasons or is perfunctory in nature. To curtail the liberty of a person on bail, the prosecution should make out a case for cancellation by not making allegations alone but by giving substantive proof of such allegations. Learned counsel for the petitioner has failed to point out any such ground to convince this Court for interference in the impugned order. Resultantly, this petition being without any force is hereby dismissed. HBT/68/P Petition dismissed.