2012 PLP 716 (MLD)

SYED IFTIKHAR HUSSAIN SHAH, J.--Raja Fazal-ur-Rehman, being complainant of this case has filed present application under section 497(5), Cr.P.C. for cancellation of bail granted to Gulraiz Akhtar, respondent No.1 (accused) granted by learned Addl: Sessions Judge, Gujrat vide order dated 27-5-2011 in case F.I.R. No.626-2005, dated 31-10-2005 registered under sections 364, 109, P.P.C. subsequently added section 302, P.P.C. through diary No.156 dated 3-8-2010, Police Station Sadar Kharian, Gujrat on the ground that respondent-accused was found guilty during the investigation of this case and he was not entitled to the concession of bail.

2. The case was initially registered under sections 364 and 109, P.P.C. for the abduction of Raja Abdur Rehman against Muhammad Afzal, Qamar Zaman, Khizar Iqbal, Zafar Iqbal and others. Respondent No.1 was nominated as accused on 2-4-2011 after recording the extra judicial confession before Mst. Nagina Kausar and Mst. Saleem Akhtar P.Ws. In this case statement of Muhammad Arif, co-accused was also recorded under section 164, Cr.P.C., wherein he had also implicated Gulraiz Akhtar (respondent No.1) and role assigned to him that he tied the neck of deceased with rope and his co-accused had murdered him by giving blows of Chhuri and firing at him. Respondent No.1 (accused) being police constable remained absent from his duty on the day of occurrence i.e. 21-10-2005 and sufficient incriminating evidence was collected against him but learned trial Court had granted bail to respondent No.1 (accused) in spite of reasonable ground existed against him for believing that he had participated in the occurrence of this case. Hence, this petition.

3. The learned counsel for the petitioner has contended that sufficient incriminating evidence in the shape of extra-judicial confession made before Mst. Nagina Kausar and Mst. Saleem Akhtar P.Ws., was available on record against Gulraiz Akhtar (respondent No.1), but even then learned trial Court has granted bail to him when reasonable ground existed for believing that he was guilty of murder. The learned counsel has relied upon "Raja Fazal-ur-Rehman v. Muhammad Afzal and another" (2010 SCMR 179) for the rejection of bail of respondent-accused.

4. On the other hand, learned counsel for respondent-accused has opposed this application by contending that respondent-accused has been implicated in this case on the basis of extra-judicial confession allegedly made before Mst. Nagina Kausar and Mst. Saleem Akhtar P.Ws., which is a weak type of evidence and Muhammad Ashraf co-accused while making judicial confession has assigned only a role to the respondent-accused that he tied the neck of deceased with rope and nothing has been recovered from him during the investigation of this case, therefore, learned trial Court has rightly granted bail to respondent-accused.

5. Arguments heard and record perused.

6. Respondent-accused was not nominated in the F.I.R. and was implicated on 2-4-2011 on the basis of supplementary statement of the complainant as well as in the statement of Mst. Nagina Kausar and Saleem Akhtar P.Ws. that he visited their house on 27-3-2011 and confessed his guilt before them. The extra judicial confession always considered very weak evidence and value of judicial confession of co-accused Arif wherein, respondent No.1 has been implicated, will be considered a corroborative piece of evidence at the trial. During the investigation, nothing has been recovered from him.

7. The cancellation of bail has been sought on the ground that sufficient incriminating evidence was available on record against respondent-accused and learned trial Court has granted bail to him on the ground that extra judicial confession allegedly made by respondent-accused before Mst. Nagina Kausar and Mst. Saleem Akhtar P.Ws., is a very weak type of evidence.

8. It is settled law now that considerations for cancellation of bail are altogether different from those required for the grant or refusal of bail. Once an accused is admitted to bail by a competent Court of jurisdiction and then extraordinary circumstances are required to interfere with the said order. Those facts are the conduct of accused that whether accused has mis-used the facility of bail or there is likelihood of absconding from jurisdiction of Court and whether he is hampering the investigation, threatening the witnesses or is creating obstruction in the course of justice. But in this case no such allegation has been levelled that respondent-accused had misused the concession of bail or is likely to abscond or he is creating any hindrance in the fair investigation of case or has threatened the witnesses, therefore, there is no cogent reason or legal justification to withdraw the concession of bail granted to respondent-accused by the competent Court of law. Resultantly, the instant application for cancellation of bail of respondent-accused being devoid of any force is hereby dismissed. N.H.Q./F-30/L Petition dismissed.