P L D 2002 Karachi 1 (PLP)

With regard to the merits of the case, they submitted that the trial Court in its order had considered whether in view of the evidence in possession of the prosecution, all the aforesaid three accused persons could be said to be reasonably guilty of an offence punishable with death, imprisonment for life or ten years and had come to the conclusion that the matter required further enquiry for prima facie connecting them with an offence punishable with death, imprisonment for life or ten years with the result that their case did not, fall within the prohibitory clause of section 497, Cr.P.C. and further that in absence of satisfactory evidence prima facie connecting them with an offence punishable with death, imprisonment for life or ten years, the mere fact of absconsion could in itself be not sufficient to disentitle the accused from claiming the benefit of section 497, Cr.P.C. I have given due consideration to the arguments advanced by the learned counsel for the parties and have perused the material on record as well as the relevant provisions of law. At the outset, I may point out that the illegality or irregularity as alleged by Mr. A.Q. Halepota by the trial Court in proceeding with the case after the accused persons had surrendered themselves before it and had applied for interim pre‑arrest bail would not be a ground for cancellation of the bail granted to the accused persons. No doubt, the trial Court was required either to grant interim pre‑arrest bail on 5‑10‑1999 or to remand the accused persons to jail in view of the fact that non‑bailable warrants of arrest had been issued against them but failure to comply with the aforesaid requirement would not furnish a ground to the complainant or the State for seeking cancellation of the bail granted subsequently. On 6‑10‑1999, pre‑arrest bail applications of the accused persons were rejected and they were remanded to custody. Thereafter on 7‑10‑1999, bail application after arrest was moved on behalf of accused Hussain and Misri and on 13‑10‑1999 the same was allowed. From perusal of the record, it transpires that originally the bail application was moved on behalf of accused Hussain and Misri but subsequently at the request of the Advocate for accused Hussain and Misri the same was also treated as bail application on behalf of accused Mustufa and consequently his name was added in the title of the bail application in handwriting. The fact that bail was granted to all the three accused persons is evident from the last paragraph of the bail order, wherein it has been stated that all the three applicants/accused were admitted to bail. In the circumstances, the irregularity/illegality committed by the trial Court in not remanding the accused persons to prison on 5‑10‑1999 and the alleged interpolation, insertion or addition of the name of accused Mustufa in the bail application subsequent to the bail order would not furnish any ground for cancellation of the bail. In this connection it is to be noted that the concerned Judge was asked to explain the alleged interpolation/addition of the name of accused Mustufa in the bail application and he stated that initially the bail application was moved on behalf of accused Hussain and Misri but later on at the, request of the counsel name of accused Mustufa was allowed to be included in the title of the bail application. With regard to the contention whether the facts of the case warranted grant of bail to the accused persons or whether the same was in contravention of the well‑settled principle of grant of bail in offences punishable with death, imprisonment for life or ten years, it may be observed that the trial Court in the bail order had considered the merits of the case and had come to the conclusion that the evidence in possession of the prosecution did not make out a prima facie case of attempt to murder as well as of issuing threats of death and that the matter required further enquiry for reasonably believing the accused persons to be guilty of an offence punishable with death, imprisonment for life or ten years and that the case of the applicants/accused was covered by the proviso to section 497, Cr.P.C: In this connection, it Will be appropriate to refer to the observation of the trial Court, wherein it stated that it was a case of ineffective firing as none had received any fire‑arm injury and the circumstances were sufficient to possibly p conclude that section 324, P.P.C. had been misapplied or it was on account of mala fides and the question whether ‑the accused could be prima facie held to be guilty of the offence of attempt to murder required further enquiry. With regard to the offence punishable under section 506(2), P.P.C., though the same is non‑bailable offence but according to the established g principle of law grant of bail in non‑bailable offences not punishable with death, imprisonment for life or ten years is a rule and refusal is an exception. The accused persons were entitled to be released on bail as laid down by the Supreme Court in the case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34 as the prosecution had failed to refer to any extraordinary or E special circumstance which would warrant refusal of bail to the accused persons. In view of the observation of the trial Court, the matter required further enquiry for prima facie connecting the applicants/accused with the offence of attempt to murder under section 324, P.P.C. and for issuing threats of death punishable under section 506(2), P.P.C. As the evidence in possession of the prosecution did not prima facie connect the accused persons with offence for which bail could be refused, mere abscondence of the accused persons could not be a sufficient ground for holding them to be prima facie connected with the offences under sections 324 and 506(2), P.P.C. and to reasonably believe them to be guilty of an offence punishable with death, imprisonment for life ten years so as to disentitle them from the concession provided by section

497. Cr.P.C. Reliance for the above is placed on the cases of: (1) Syed Mushtaq Ahmed v. Siddiqullah, reported in PLD 1975 SC 160; (2) Aminullah v. The State, reported in PLD 1976 SC 629; and (3) Mehar Khan and another v. The State, reported in PLD 1977 SC

41. In view of the fact that the trial Court had come to the conclusion that the case was of further enquiry to prima facie connect the accused persons with the offences mentioned in the charge‑sheet, the absconsion of the accused would by itself be not sufficient to prima facie hold the accused to be guilty of the offences charged with and to reasonably believe them to be guilty of an offence punishable with death, imprisonment for life or ten years. The principles governing the grant of bail and cancellation of bail granted earlier are absolutely different and the grounds which may not be found to be favourable for allowing the concession of bail to a person would not necessarily be good grounds which could be considered for cancellation of bail granted earlier. Normally, the grounds which are taken into consideration for cancellation of bail are: (i) That the applicant has misused the concession of bail and is causing fear and alarm to the complainant and the prosecution witnesses: (ii) that there is likelihood of witnesses being won over and their evidence being tampered with; (iii) that there is likelihood of repetition of the commission of the crimes which the accused had allegedly committed; (iv) that the accused was likely to abscond; and (v) that the order granting the bail was arbitrary, capricious and against the evidence available with the prosecution. In the case of Tariq Bashir (supra), the Supreme Court had also dealt with the question of cancellation of bail granted to an accused and held that considerations for grant of bail and for cancellation of the same were altogether different and that once bail was granted by a Court of competent jurisdiction, then strong and exceptional grounds were required for cancellation thereof. It will be appropriate to reproduce the relevant portion dealing with the cancellation of bail from the said judgment as under: The consideration for the grant of bail and for cancellation of the same are altogether different. Once the bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation thereof. To deprive a person on post- arrest bail of the liberty is a most serious step to be taken. There is no legal compulsion to cancel the bail of the accused who allegedly has committed crime punishable with death, imprisonment for life or imprisonment for ten years. Question of benefit of reasonable doubt is necessary to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail because there is wide difference between the jail life and a free life. So, benefit of reasonable doubt about occurrence itself, identity of the accused, part allegedly played by him in the occurrence, his presence on the spot and on the question of his vicarious, liability, would go to him even at bail stage. It is by now judiciously recognized that there is a tendency in our country to involve innocent persons with the guilty. Once an innocent person is falsely involved in a serious case then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial. When a person is detained in. the jail, all his dependents also suffer hardships. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a. mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run. So, whenever reasonable doubt arises with regard to the participation of an accused person in the crime, he should not be deprived of the benefit of bail. The bail can neither be withheld nor cancelled as punishment. After taking into consideration the above facts I am satisfied that no illegal interpolation, insertion or addition was made in the bail order and the same was done on the orders of the trial Court, which is evident from the explanation sought from him and the last paragraph of the bail order, wherein he had specifically mentioned that bail was granted to all the three accused. This contention is therefore, not tenable. However, the concerned Additional Sessions Judge, is directed to be very careful in dealing with such matters and should not entertain applications on behalf of accused by verbally permitting addition of the name of an accused in the applications filed on behalf of other accused persons as such practice gives rise to serious doubt and suspicion with regard to the validity of the proceedings. With regard to the alleged illegality or irregularity committed by the trial Court in not remanding the accused persons to civil prison on 5‑10‑1999 when they had surrendered themselves before the trial Court, it is to be observed that the trial Court was required to remand them to civil prison in view of the fact that non‑bailable warrants of arrest had already been issued against them and his failure to do so was an irregularity and in future he should be very careful and cautious in dealing with such a situation. I am, however, satisfied that there is no ground, which would warrant cancellation of bail granted to the three accused persons. Upon the above discussion, I find that this Cr.S.M. Revision does not require any consideration and the same stands disposed of in above terms: N.H.Q./S‑144/K Petition dismissed.