2006 PLP 1635 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

In continuation of my order, dated 30-1-2006, learned counsel for the petitioner, in support of this bail cancellation petition, submits that although offence under section 452, P.P.C. was deleted by the earlier Investigating Officer but was added later on by a DSP; that the respondents concealed that dismissal of their earlier bail before arrest petition; that bail before arrest petition of some of the co-accused of the respondents was also dismissed by the learned Court of Session; that considerations for the grant of bail before arrest and bail after arrest are altogether different and that since the pre-arrest bail petition has been obtained through concealment, therefore, the same is liable to be cancelled.

2. On the other hand, learned counsel for the respondents, while opposing the bail granting order and the above submissions, contends that the respondents were allowed bail after arrest by the learned Judicial Magistrate on 15-2-2005 as section 452, P.P.C. was deleted from the offence; that in the name of verification of investigation DSP Rai Zameer added section 452, P.P.C. which led the respondents to file a bail before arrest petition which was confirmed by the learned Sessions Judge, Nankana on 6-12-2005 which order has been assailed through the instant bail cancellation petition.

3. Learned counsel for the State submits that, according to him, no concealment was made by the respondents in getting the bail before arrest.

4. I have heard counsel for the parties, have given consideration to the submissions made at the bar and have also gone through the record.

5. The case was registered under sections 452/148/149/337-H-2, P.P.C. They were arrested and were allowed bail after arrest under section 337-H-2, P.P.C. as offence under section 452, P.P.C. was deleted. Later on section 452, P.P.C. was added by a DSP, who was not the Investigating Officer of the case, in the name of verification which led the respondents to file bail before arrest petition before the learned Court of Session. The said petition, for the first time, was dismissed on 11-12-2004 as the respondents could not appear before the learned Court. Then accused Zahoor Shah and Mumtaz Shah filed bail before arrest petition, Mumtaz did not appear while pre-arrest bail petition of co-accused Zahoor had already been dismissed which factum is reflected in the order of ASJ, Nankana Sahib, dated 25.-1-2005. Accused Siddique's pre-arrest bail petition was dismissed in default vide order of ASJ Nankana, dated 2-2-2005. Ultimately, two separate pre-arrest bail petitions were filed by respondents i.e. one by Siddique respondent and the other by the remaining five accused/respondents. Challan in this case was submitted on 2-4-2005. Both the above bail before arrest petitions were allowed and the ad interim pre-arrest bail granted to them was confirmed vide the impugned order, dated 6-12-2005 passed by the learned Sessions Judge, Nankana Sahib which is impugned through this petition. Operative part of the said order reads as under: "

On perusal of the judicial record, it is being transpired that the learned Area Magistrate has accepted the bail bonds of the petitioners as the remaining offences charged with were bailable. Submission of challan before the Court on 2-4-2005 is also being established. It is strange enough that DSP (Investigation) Headquarter on 6-8-2005 has conducted the investigation and has added section 452, P.P.C. by giving the opinion that offence of house trespass was committed by the petitioners. The above said conduct of investigation is found in violation of the law laid down by Hon'ble Lahore High Court, Lahore in the recent judgment, dated 1-6-2005 as in the same, the senior police officer conducting verification of the investigation was bound down to refer back the matter to the concerned Investigation Officer, if in his opinion, some irregularity/illegality has been committed in the conduct of the investigation. As such the same cannot be given any weight at this stage. Further as the petitioners have been admitted to bail and there is no allegation of misusing the same, hence, there is no justification for withdrawal of the said concession. No doubt, earlier petitioners have misused the concession of bail, but because of their said conduct, this bail petition cannot be dismissed for the reasons mentioned above."

6. Resume of the facts of the case coupled with perusal of the bail granting order, whereby pre-arrest bail allowed to the respondents was confirmed, would lead me to an irresistible conclusion that the learned Sessions Judge, through the impugned order, was right in confirming bail before arrest of the respondents. Even otherwise, addition of section 452, P.P.C. by a DSP was not tenable because the same was violative of the procedure laid down in Article 18 of the Police Order, 2002 especially Sub-Article (6) to the said Article. Further more, I find no concealment or misuse of the concession of bail allowed to the respondents. In my view, the grounds given by the learned Sessions Judge in the bail granting order are not alien to the settled principles on the subject, therefore, the bail granting order, dated 6-12-2005 passed by the learned Sessions Judge Nankana Sahib does not call for interference by this Court and net result of the above discussion is that this petition is dismissed having no merit. H.B.T./T-21/L Petition dismissed.