2011 P Cr (PLP)

ATTAULLAH KHAN J.

Through this application filed under section 497(5), Cr.P.C., the petitioner Muhammad Younis Parvez seeks the cancellation of pre-arrest bail allowed to Qabool Khan and Haji Raees Khan, accused/respondents, by the learned Additional Sessions Judge-VII D.I. Khan in case F.I.R. No. 32 dated 14-2-2010 of Police Station Kulachi registered under, sections 419/420/447/427/382/506/148/149, P.P.C. on the grounds, inter alia, that they are directly charged by the complainant/petitioner for committing the crime in a broad day light, that they have remained fugitive from law for a considerable long and unexplained period; that the petitioner was unheard at the time of passing the impugned order as he was not made party in the application for Bail before arrest moved by the accused/respondents; that there was no question of mistaken identity and that the ingredients necessary for grant of bail before arrest were not available to them.

2. On the other hand, learned counsel for the accused/respondents and State defended the impugned order by submitting that the report was lodged with a delay of eight days which are sufficient for consultation and fabricating a false case against the accused. They urged that only sections 447/427 and 506, P.P.C. are available against the accused while the remaining sections of law have been deleted.

3. I have gone through the record and considered the submissions of the learned counsel for the parties.

4. The statements of P.Ws. recorded under section 161, Cr.P.C. disclose that the case of the prosecution is not supported by them as it stands in the F.I.R. The dispute between the parties is of a civil nature. The available sections against the accused/respondents are bailable and there is no evidence at the moment on record to connect them with the commission of the offence. Hence there is no prima facie case against them. Investigation in the case is complete and the accused/respondents are no more required for the same purpose.

5. Tentative assessment of the materials so far brought on record brings the case of the accused/respondents within the ambit of further inquiry. Therefore, the impugned order of granting pre-arrest bail to them by the Court below is neither perverse nor fanciful so as to call for interference by this Court which is accordingly maintained.

6. Considerations for grant of bail and cancellation thereof are quite different from each other. Once bail is granted by a competent Court of law, then strong and exceptional grounds are needed for recalling the same, which are lacking here as there is no proof brought on record that the accused/respondents have either misused theft concession of bail or tampered with the investigation process.

7. It is true that mala fide, false implication and humiliation are main factors to be 'considered in pre-arrest bail matters, but is also true I that if on fact a case is made out, it is also considered because it amounts to false implication.

8. As stated above, the accused are contractors and they paid price of mud for filling purpose to the persons who posed themselves to be owners. So act done is under wrong conception. Moreover, the landed property is barren and not capable of cultivation and so the question of physical possession does not arise. Therefore, these factors are also relevant for the purpose of grant or confirmation of pre-arrest bail.

9. Humiliations and harassment are also to be considered. The circumstances of the case indicate that perhaps no offence is shown to have been committed on the face of the record. Reference may given to 1996 SCMR 74.

10. Consequently, I find no substance in this bail cancellation application which is accordingly dismissed. A.R.K./311/P Application dismissed.