2022 PLP 71 (YLRN)

ABDUL HAMEED BALOCH, J.

The applicant/complainant filed an application under section 497(5) Criminal Procedure Code for cancellation of bail of private respondent with the prayer:-- "It is therefore, respectfully prayed that in view of above made submissions the bail granted to accused/respondent No. 1 may kindly be set aside and the accused/ respondent No.1 may kindly be sent behind the bars, or any other order which this Honorable Court deems fit and proper may also be awarded in favour of applicant, in the interest of justice."

2. The concise facts of the case are that on 2nd February, 2020 case FIR No.09 of 2020, under sections 302, 324 Qisas and Diyat Ordinance, read with sections 504, 506, 427, 147, 148, 149 Pakistan Penal Code (P.P.C.) was registered on the report of applicant Waliullah with Police Station Abdul Khaliq Shaheed Quetta against respondent No. 1 and others alleging therein that his cousin Dr. Munir Ahmed handed over a house to them situated at Eastern Bypass near Jatak Stop and same was in their occupation for the last twenty years and for looking after the said house his elder brother Muhammad Barat has kept Sher Muhammad as Chowkidar, who was dwelling the said house along with his family for years. It was alleged that about 10/15 days back Haji Attaullah has forcibly kept some luggage in the said house which information was given to them by Sher Muhammad Chowkidar, on which his elder brother Muhammad Barat came to Haji Attaullah and talked about the house. It was alleged that hot words were exchanged between them, on which his elder brother Haji Muhammad Barat gave application in court. It was alleged that today Haji Attaullah along with his sons has beaten Chowkidar's son Mohibullah and also demolished the outer wall of the house. It was alleged that he (complainant) and his elder brother Muhammad Barat were busy with Chowkidar when at about 11:40 p.m. Attaullah along with his sons, from whom he knew Sultan, duly armed came there. Attaullah made fire with pistol on his elder brother Muhammad Barat which hit on his right leg due to which he fell on the ground. Further, Sultan Muhammad started abusing them and made firing on them. It was alleged that two/three fire shots hit chest and abdomen of his brother. Meanwhile police mobile came there. It was alleged that due to firing of Sultan he (complainant) luckily escaped. It was alleged that he with the help of police brought his brother to Civil Hospital where during treatment his brother succumbed to the injuries. With these averments FIR was chalked.

3. After registration of case accused Haji Atta Muhammad and Muhammad Yousaf were arrested and subjected to investigation. The respondent No. 1/accused moved an application for grant of post arrest bail before Sessions Judge Sariab Division, who was pleased to release the respondent No. 1/accused on bail vide order dated 16th April, 2020 (impugned order), hence being aggrieved of the same the applicant/complainant approached this court for cancellation of bail.

4. Learned counsel for the applicant/complainant contended that the court below granted bail to the respondent No. 1/ accused being juvenile. The respondent No. 1/accused could not be given benefit of juvenile unless and until he was declared juvenile by the court of competent jurisdiction. The court below passed impugned order which has affected merit of the case. The respondent No.1/accused was identified during identification parade. The impugned order whereby the respondent No.1/ accused was granted bail is patently illegal, hence prayed for re-calling of the same. The learned counsel placed reliance on Muhammad Iqbal v. The State 2007 PCr.LJ 976, Tanveer Abbas v. The State 2012 PCr.LJ 1048 and Naeem Khan v. The State PLD 2004 Peshawar 70.

5. While the learned counsel for the respondent No. 1/accused contended that the order of the court below is legal and according to law. The respondent No.1/accused was nominated in the FIR. He was implicated subsequently on the basis of supplementary statement. The prosecution has failed to collect incriminating material against the respondent No. 1/accused. He placed reliance on Rasool Bakhsh v The State 2003 PCr.LJ 119.

6. The learned Deputy Prosecutor General supported the impugned order of the court below.

7. Heard and perused the record with the assistance of learned counsel for the parties as well as Deputy Prosecutor General. The record transpires that the respondent No. 1/accused was not nominated in the FIR. The complainant subsequently implicated the respondent No. 1/accused in the crime through supplementary statement. The complainant had already nominated the father and brother in the FIR meaning thereby that he was present at the spot and knew to each other. No specific injury attributed to the respondent No. 1/accused and only generalized allegation was levelled against him. Where bail is granted by the court of competent jurisdiction on the basis of cogent reasons the same cannot be cancelled until and unless on exceptional grounds. Mere involvement of the accused in the alleged crime does not mean that he had committed the same. The prosecution was liberty to bring cogent evidence to substantiate its case against the accused at the trial. There is no allegation that the respondent No. 1/accused has misused the concession of bail. The Honorable Supreme Court of Pakistan in a case Samiullah v. Laiq Zada, 2020 SCMR 1115 held:-- "

6. Ordinarily the superior courts are reluctant to interfere into the order extending concession of bail; rather they have shown reluctance to intervene in such like matters. The rationale behind in that once concession of bail is granted by a court of competent jurisdiction then very strong and exceptional grounds would be required to hamper with the concession extended to a person who is otherwise clothed with free life, any contrary action of the court would be synonymous to curtailing the liberty of such person, which otherwise is a precious right guaranteed under the Constitution of the country. Our judicial system has evolved beside others the concept of "benefit of reasonable doubt" for the sake of safe administration of criminal justice which cannot only be extended at the time of adjudication before the trial court or court of appeal rather if it is satisfying all legal contours, then it cost be extended even at bail stage which is a sine qua non of a judicial pronouncement, hence, any unjustified action by the court of law intruding into the affairs would certainly frustrate the free life of an accused person after availing the concession of bail. It is not beyond the legitimate expectations that in our society mere levelling of accusation basing upon trumped-up charges is not something beyond imagination. Therefore, false implication/ exploitation which has become epidemic in our society has to be safeguarded by the majesty of the courts. Unfortunately, our judicial system does not effectively provide appropriate speedy remedy for the rescue of innocent person. Rather it seldom helps those who are victim of such wrong doing rightly or wrongly, hence it is ensuing serious consequences in the fabric of society. This Court is fully conscious of this aspect. It is now established that every conviction/incarceration suffered by a person involved in a criminal case due to any possible reason can repair the wrong caused by a mistaken involvement but it cannot compensate him for the period he suffered by any means which further demonstrate undue frustration in the society at large. This concern of the society further casts duty upon the courts of law to adhere the dictum of reasonable doubt whenever it is surfaced to resolve it in favour of an entity which deserves it judiciously." In view of the above the order passed by the court below is not needed to be interfered. In such circumstances the application for cancellation of bail is dismissed. JK/180/Bal. Application dismissed.