2008 PLP 1484 (MLD)

MUHAMMAD ALAM KHAN, J.

Through this application filed under section 497(5), Cr.P.0 the complainant/petitioner, Ghulam Qasim, seeks the cancellation of pre-arrest bail granted to Inayatuallh alias Tulla, by the learned Additional Sessions Judge-IV D.I. Khan vide order, dated 28-2-2008 in case F.I.R. N.217, dated 2-10-2007 of Police Station Paharpur, registered under sections 365-A/109, P.P.C.

2. It was on 30-9-2007 at 1600 hours that Ghulam Qasim, complainant/petitioner, made a written report to the local police to the effect that on 28-9-2007 at 0900 hours, his son, namely, Muhammad Sanaullah, had gone to meet Hussain son of Iqbal, resident of Landhi Kacha, for quail hunting and at about 0900 hours when they both were on their way towards the destination on a motorcycle, three persons suddenly emerged on the way with a motorcycle. They tied Hussain with a rope and throw him away, while Sanaullah was kidnapped for ransom. Hussain by raising hue and cry opened the rope and in between 1200 to 0100 p.m. he informed the complainant about the occurrence, who, thereafter, charged unknown persons for kidnapping Sanaullah for ransom.

3. Perusal of the F.I.R. reveals that the complainant has not charged anyone but during investigation of the case, Sanaullah Khan, the alleged abductee, charged the accused/respondent Inayatualh Khan along with co-accused Rustam, Muhammad Saleem and Saif-ur-Rahman for committing the crime. After his arrest, accused Muhammad Saleem was allowed bail by the learned Additional Sessions Judge-IV D.I. Khan on 17-12-2007 which was maintained by this Court vide order, dated 18-3-2008 passed in Criminal Miscellaneous No. 4 of 2008 and Inayatuallh, accused/respondent herein, has been allowed pre-arrest bail by the impugned order.

4. It was vehemently argued by the learned counsel for the complainant/petitioner that although the accused/respondent is not named in the FIR., but he has been directly charged by the abductee after his recovery and thus the impugned order is not sustainable.

5. The learned Deputy Advocate-General representing the State and learned counsel for the accused/respondent defended the impugned order on the grounds, inter alia, that the complainant in his initial report has not charged the accused/respondent for committing the offence and his subsequent nomination by the alleged abductee was for ulterior motive.

6. I have carefully gone through the available record with the valuable assistance of learned counsel for the parties.

7. It is a bail cancellation application and the order impugned herein is based on sound footings. Besides that Muhammad Saleem, co-accused of the respondent has been allowed bail by the lower Court and maintained by this Court and thus on the principle of consistency, the accused/respondent being equally charged for the alleged offence is entitled to the discretionary relief of bail, from the available facts and circumstances, the case of the accused/respondent is of further enquiry and, therefore, the impugned order does not warrant inference by this Court. The lower Court has exercised its discretion properly and in accordance with the settled norms of justice. Very strong and exceptional grounds are required for cancellation of bail which are lacking herein. Principles for cancellation of bail are different from the considerations for the grant of bail. Section 497(5), Cr.P.C. does not command the Court to cancel the bail even if the offence is punishable with death or imprisonment for life and even if. the grant of bail is prohibited under section 497(1), Cr.P.0 the discretion is left with the Court under section 497(5), Cr.P.C. -which is 'pari materia' with the 'principles enunciated applicable to the setting aside of the orders of acquittal. Reliance in this respect is placed on the case-law laid down in the case of Muzaffar Iqbal v. Muhammad Imran Aziz and others (2004 SCMR 231).

8. Consequently, I find no merit in this petition which is accordingly dismissed. H.B.T./130/P Petition dismissed.