2010 P Cr (PLP)

MUHAMMAD SAFDAR KHAN SIKANDARI, J.

Dissatisfied from the impugned order dated 6-9-2009 passed by the learned Sessions Judge Bannu, whereby bail was granted to the accused/respondent, namely, Zakirullah, in case F.I.R. No.135 dated 17-6-2009 registered under sections 302/34 P.P.C. at Police Station Ghoriwala, District Bannu. The complainant/petitioner, Inamullah, has filed the instant application for cancellation of the said bail granting order in this Court under section 497(5) Cr.P.C.

2. Succinct facts arising out of the prosecution case are to the effect that complainant Inamullah lodged the report in the shape of Murasila before the police wherein he alleged that he was present in his house when one Khan, resident of village Kala Khel informed him about the death of his son, namely, Sajjad, by someone and is still lying on the scene of occurrence. Soon after receiving the message, he rushed to the spot and found his son being done to death with fire-arm. He disclosed that his deceased son had gone with Zakirullah, his friend, last morning but did not come back to his house at night and thus charged Zakirullah and Khan Qader Sher for the murder of his son and hence the present occurrence.

3. The accused/respondent moved an application for securing bail in the Court of learned Sessions Judge Bannu and accordingly he was allowed bail vide impugned order referred to above which is now challenged by way of this bail cancellation application.

4. Learned counsel for the complainant/petitioner, inter alia contended that the impugned order was passed at the back of the petitioner as no notice was given to him and thus in view of the dictum handed down in the case of Muhammad Sharif v. Muhammad Mir Khan 2004 PCr.LJ 968, the bail granted to the accused/respondent is liable to be recalled.

5. On the contrary, the contention of the learned counsel for the accused/respondent is that vide order sheet dated 29-8-2009, the Court has ordered the issuance of notice to the complainant and requisitioned the record of the case which was made available and in presence of DPP, bail application was argued and allowed to the accused/respondent through the impugned order. He further urged that the role of the accused/respondent is at par with his accessory who is already enjoying the concession of bail granted to him by this Court vide order dated 17-8-2009 and, therefore, the cancellation of bail of the accused/respondent will serve no useful purpose, as the ultimate fate of his case will be the bail and not the jail in case the bail of accused/respondent was cancelled.

6. The learned Deputy Advocate-General, however, supported the impugned order on almost the same grounds which prevailed with the Court below.

7. I have carefully examined record of the case and anxiously considered the arguments addressed by the learned counsel for the parties.

8. Keeping in view the dicta handed down in 2008 SCMR 1715, this Court will see as to whether the bail granted to the accused/ respondent was patently illegal, erroneous and resulted into mis-carriage of justice.

9. Admittedly, the accused/respondent is nominated as an accused in the F.I.R. by the petitioner/complainant, but he himself is not the eye-witness to the occurrence, nor he has pointed out the authentic source giving the clue of the involvement of the accused/respondent in the commission of offence, except the presumption of dispute regarding the women-folk. Therefore, the impugned bail granting order of the Court below is based on sound reasons. So far as the objection of non-service of the complainant/petitioner by the lower Court while passing the impugned order is concerned, it will be advantageous to reproduce the relevant proviso of subsection (1) to section 497, Cr.P.C. which reads as under: "Provided further that a person accused of an offence as afore-said shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released."

10. Perusal of the impugned order reveals that DPP was present on the date of arguments and disposal of the bail application, therefore, the compliance of notice enshrined in the proviso referred to above has already been executed and thus it could not be a ground for cancellation of bail granted to the accused/respondent when otherwise too, he was found eligible for bail.

11. Besides, grounds for grant of bail and cancellation thereof are altogether different from each other. Strong and exceptional grounds are required for cancellation of bail. In the case in hand, nothing has been indicated that the accused/respondent has tampered with the evidence of prosecution or he has misused the concession of bail by threatening the complainant party to fulfil its illegal wishes.

12. For the reasons stated above and without touching the other merits of the case, I am not inclined to cancel the bail of the accused/respondent and, therefore, the petition is dismissed. H.B.T./70/P Petition dismissed.