2002 PLP 1243 (YLR)

Akmal Masih and others v Salamat Masih and 4 others 1988 SCMR 918 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref. Pervaiz Inayat Malik for Petitioner. Ibne Hsssan for Respondents Nos. 2 to

4. Mareena Parveen for the State. Date of hearing: 14th June, 2002. Through this petition the petitioner- complainant has called in question the order dated 9‑5‑2002 passed by the learned Additional Sessions Judge, Sheikhupura whereby respondents Nos. 2 to 4 were admitted to pre‑arrest bail in case F.I.R. No.307 registered at Police Station Shah Kot, District Sheikhupura on 2‑10‑2001 for offences under sections 302/148/149/109, P.P.C.

2. In support of this petition it has been argued by the learned counsel for the petitioner that respondents Nos.2 and 3 had been specifically nominated in the F.I.R. and respondent No.4 had been implicated by the complainant party during the investigation of this case, specific roles had been attributed to respondents Nos.2 and 3 in the F.I.R. in as much as respondent No.2 had caused a fire arm injury on the right side of chest near shoulder of Mukhtar Ahmed deceased and respondent No.3 had indulged in indiscriminate of firing; respondents Nos. 2 to 4 had become fugitive from law; the all important consideration regarding mala fide implication of the said respondents in this case had not been adverted to by the learned Additional Sessions Judge while admitting the said respondents to pre‑arrest bail; recoveries are yet to be effected from the 'said respondents; and, therefore, the case in hand was not a fit case for extending the extraordinary concession of pre‑arrest bail to respondents Nos.2 to

4. As against that the learned counsel for respondents Nos. 2 to 4 has maintained that the learned Additional Sessions Judge, Sheikhupura had exercised his jurisdiction and discretion in the matter on the basis of sound considerations and, therefore, the same does not call for any interference by this Court at such a stage. The learned counsel for the State has supported this petition but at the same time she has conceded that the State has not so far applied for cancellation of the respondent's bail.

3. After hearing the learned counsel for the parties and going through the record it has been noticed that while admitting respondents Nos. 2 to 4 to pre‑arrest bail the learned Additional Sessions Judge, Sheikhupura had observed that respondents Nos.2 to 4 had already joined the investigation; no weapon had been recovered from their custody during the investigation; different Investigating Officers had opined about innocence of the respondents; the challan in this case had already been submitted after completion of investigation; respondents No.2 to 4 were already appearing before the learned trial Court in connection with the present case as well as the connected complaint, case and, therefore, their status as proclaimed offenders was quite doubtful; the trial in the complaint case had already commenced and the present challan case had been kept pending; and, therefore, no useful purpose was likely to be served by sending respondents Nos. 2 to 4 behind the bars at such a stage.

4. It is not disputed that respondent No.4 had not been nominated in the F.I.R. as one of the perpetrators of the offences in question and respondent No.3 had been saddled with the responsibility of ineffective firing alone and admittedly he had not caused any injury to any person during the alleged incident respondent No.2 is already on bail in the connected complaint case wherein allegations levelled against him are identical to those levelled against him in the present challan case and, thus, it shall be ludicrous as well as anomalous if his bail is cancelled in the present case while his bail in the complaint case regarding the same allegations remains intact. It may be true that the question regarding mala fide implication of respondents Nos. 2 to 4 in the case in hand had not been specifically adverted to by the learned Additional Sessions Judge, Sheikhupura in the concluding part of his order dated 9‑5‑2002 but at the same time it is equally true that the said aspect of the matter had been specifically asserted by the learned counsel for respondents Nos. 2 to 4 before the learned Additional Sessions Judge and the same is evident from the contents of Paragraph No.3 of the said order. Even otherwise the reasoning of the learned Additional Sessions Judge in the said order has the element of mala fide on the part of the complainant party engrained in it.

5. The reasons advanced by the learned Additional Sessions Judge, Sheikhupura for admitting respondents Nos.2 to 4 pre‑arrest bail have not been found by this Court to be averse to the settled principles governing the law of pre‑arrest bail. It is trite that consideration for grant of bail and those for its cancellation are entirely different. No argument has been advanced before this Court regarding any misuse or abuse of the concession of bail by the said respondents. The challan is this case has already been submitted after completion of investigation and, thus, physical custody of respondents Nos. 2 to 4 no longer required for the purposes of investigation. This Court is generally slow in cancelling an accused person's bail at such a stage of a criminal case. A reference in this regard may be made to the cases of Akmal Masih and others v. Salamat Masih sand four others (1988 SCMR 918) and Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585). It is not disputed that at the present juncture no investigation of the said criminal case is pending before any officer or agency. It is settled law that the concession of bail ought not to be recalled and bail may not be cancelled only for wreaking vengeance of the complainant party.

6. For what has been discussed above no concession has been found by this Court for interference with the exercise of jurisdiction and discretion in the matter by the learned Additional Sessions Judge, Sheikhupura and this petition is, therefore, dismissed. H.B.T./M‑1425/L Petition dismissed.