1997 PLP 2741 (MLD)

Irshad Ahmed for the State. Ch. Muhammad Nasrullah Warraich for Respondents Nos.2 to

5. Date of hearing: 19th October, 1994 Through this petition under subsection (5) of section 497, Cr.P.C. cancellation of bail granted to respondents Nos.2 to 5 is prayed for by the complainant of case under section 380, P.P.C. registered at Police Station Karrianwala District Gujrat vide F.I.R. No.3 dated 17‑1‑1994.

2. After the registration of the case, respondents Nos.2 to 5 applied for bail specifically alleging the dispute being of civil nature and also the mala fides on the part of the prosecution at the instance of the complainant, who happens to be a relative of the accused/respondents Nos.2 to

5. The concession of bail before arrest was allowed by the learned Sessions Judge, Gujrat vide order dated 7‑2‑1994. While confirming the interim bail granted to the petitioners, he observed in his order dated 7‑2‑1994 that the F.I.R. was delayed by 3 days for which no satisfactory explanation was forthcoming. The civil suit between the parties with regard to the same buffalo which was the subject matter of offence under section 380, P.P.C. was pending consideration before the Civil Court in which a direction for not obtaining the buffalo from the accused in the case except in accordance with law, was also in existence. It was further observed that the offence with which the respondents were charged was not covered by the prohibitory clause of section 497, Cr.P.C. The last part of paragraph 4 of the order is couched in the following words: "Five persons have also been found innocent during the investigation. False, implication of the petitioners due to friction between the parties cannot be ruled out. Ad interim bail already granted to the petitioners is hereby confirmed with a direction to submit fresh bail bonds in the sum of Rs.5,000 each with one, surety each in the like amount to the satisfaction of this Court."

3. Learned counsel appearing in support of this petition has contended that the complainant‑petitioner remained unsuccessful in obtaining an order of cancellation of bail from the Sessions Court and as the bail was granted by the learned Sessions Judge on 7‑2‑1994 without considering that the recovery of buffalo was yet to be made by the prosecution, the concession of bail is liable to be recalled in the exercise of this Court's jurisdiction under subsection (5) of section 497, Cr.P.C. According to him, the initial grant of concession of bail before arrest was not justified and the intervening order of the learned Sessions Judge Gujrat dated 27‑4‑1994 notwithstanding, the complainant is entitled to the relief prayed for in this application.

4. Learned counsel for the State has not supported the complainant and submitted that the efforts on the part of the complainant, seeking the recall of the concession of bail, can be conveniently termed as a slow gaited process in that the grant of bail in February, 1994 was challenged before this Court in July, this year.

5. Learned counsel appearing on behalf of respondents Nos.2 to 5 has controverted the factual pleas raised on behalf of the complainant by her learned counsel by submitting that there have been two suits in the field. The 1st suit seeking a permanent injunction against the first informant of the instant case as also against the local police was pending at the time when the concession of bail was granted by the learned Sessions Judge Gujrat on 7‑2‑1994 and that its dismissal, two weeks thereafter, i.e., on 22‑2‑1994, would be of no consequence in this regard. He further submitted that another suit for declaration and permanent injunction is presently pending decision before the Civil Court Gujrat in relation to the very buffalo which is alleged to have been stolen by the accused in case F.I.R. No.3 dated 17‑1‑1994. He has placed on the record an affidavit sworn by respondent No.2 Mian Khan and copies of the complaint in the suit titled 'Allah Ditta v.(1) Mehdi Khan, (2) Surraya Begum (3) S.H.O. Police Station Karrianwala (4) A.S.I. Police Station Karrianwala' and order dated 13‑4‑1994, confirming the interim injunction on plaintiff's application under Order XXXIX, rules 1 and 2 read with section 151, C.P.C.

6. I have heard the learned counsel for the parties and have also perused the material. It appears that the bail grant order dated 7‑2‑1994 took good care of the principles regarding the grant of concession of bail before arrest in the criminal cases. The main principle for grant of bail is supported by the observation of the Supreme Court in Mazoor and 4 others v. The State PLD 1972 SC 81 to the effect that if an accused who has been granted bail is convicted after trial, the prosecution will succeed in obtaining the order of his conviction but if a person who has not been granted bail and is acquitted after trial, there will be no reparation t6 be made for the incarceration suffered by him. The observation that the false implication of the petitioner cannot be ruled out and that civil litigation concerning the very object of theft was pending before the Civil Court Gujrat at the time when the concession of bail was granted to the respondents‑accused, clinch the matter. The argument addressed on behalf of the State that the first informant has taken a long time in bringing` the matter before this Court, need not be commented upon in this case any further. Suffice it to say that the order granting bail to the respondents does not suffer from any illegality whatsoever justifying interference therein. Accordingly, this petition fails and is hereby dismissed. H.B.T./S‑433/L Petition dismissed.