2007 P Cr (PLP)

FAZAL-E-MIRAN CHAUHAN, J.

By filing this petition, Muhammad Ahmad Sheikh, the petitioner, has sought cancellation of bail granted by the learned Additional Sessions Judge, Depalpur, District Okara, vide order, dated 23-9-2006, to Muhammad Aslam, respondent No.1, in case F.I.R. No.229, dated 9-5-2000, offences under sections 302, 324, 109, 148, 149, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997, registered with Police Station Haveli Lakha, Tehsil Depalpur, District Okara.

2. Learned counsel for the petitioner mainly states, that the learned Additional Sessions Judge granted bail to respondent No.1 without notice to the State and the complainant, which is mandatory. Reliance is placed on Muhammad Shafiq v. Muhammad Mir Khan and 3 others 2004 PCr.LJ 968 (Peshawar). Learned A.P.G. has adopted the arguments advanced by learned counsel for the petitioner.

3. Conversely, learned counsel for respondent No.1 opposed this petition and contends that, respondent No.1 was glinted bail by the learned' trial Court after hearing counsel for accused respondent No.1 and the learned S.P.P., who had entered appearance on behalf of the State; thus, this cancellation petition deserves dismissal.

4. I have heard learned counsel for the parties and perused the record. The only argument raised by learned counsel for the petitioner that, respondent No.1 was granted bail by the learned Additional Sessions Judge without giving notice to the State, whereas, perusal of the order, dated 23-9-2006 reveals that, the Special, Prosecutor had entered appearance on behalf of the State, who was served with a notice and he argued the case on behalf of the State. The contention raised by learned counsel for the petitioner is negated by the proceedings recorded by the learned Additional Sessions Judge. The State was properly heard and the bail was granted to respondent No.1.

5. In the authority viz. 2004 PCr.LJ 968 (Peshawar), notice, was not issued to the complainant and injured party whereas, in the instant case, notice was accepted on behalf of the State by the Special Prosecutor and after hearing counsel for respondent No.1 and the Special Prosecutor, learned Additional Sessions Judge granted bail to respondent No. 1 thus, the authority (supra) is distinguishable to the facts and circumstances of the present case.

6. Section 497(5), Cr.P.C. does not command the Court to cancel the bail even when 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.C. The principles for grant and cancellation of bail are altogether different. Strong and exceptional grounds are needed for cancellation of bail. Bail can be cancelled only:-- (i) when the bail granting order is patently illegal, erroneous, factually incorrect; (ii) some fresh facts or material had been collected by the police during investigation which may tend to establish or point out guilt of accused; (iii) accused had misused his liberty by indulging in similar criminal activities; (iv) accused; interfere with course of investigation; (v) accused attempt to tamper with prosecution evidence; (vi) accused threaten witnesses or indulge in similar activity which would hamper smooth investigation and there is likelihood of his fleeing from the country; or (vii) accused makes himself scarce by going underground or becoming unavailable to Investigating agency.

7. In the present case, learned counsel for the petitioner has failed to point out any of the reasons for cancellation of the bail mentioned above. There is no allegation that respondent No.1 had misused the concession of bail granted to him by the learned trial Court or some fresh facts or material has been collected by the police during investigation, which may tend to establish or point out guilt of accused. Provisions of section 497(5), Cr.P.C. being not at all punitive in nature, strong and exceptional grounds are needed for cancellation of bail. Once a bail is granted by a Court of competent jurisdiction, it must be shown satisfactorily for its cancellation that the discretion exercised by the said Court was either perverse or violative of the fundamental principles qua the bail matters or the same could not have been exercised at all in the circumstances of the case. Reliance is placed on Inayat Ullah v. The State and another 1997 PCr.LJ 1366, Syed Amanullah Shah v. The State PLD 1996 SC 241 and Muzaffir Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231.

8. For the foregoing reasons, there is no merit in this criminal miscellaneous, which is hereby dismissed. H.B.T./M-350/L Petition dismissed.