2002 PLP 1765 (YLR)

Khalil Khan Khalil for Respondents. Date of hearing: 12th August, 2002. Said Mairaj and Sher Alam respondents, were arrested in consequence of F.I.R. No. 30 registered against them on 14‑2‑2000 at Police Station Alpuri, District Shangla under sections 354/452/34, P.P.C. read with Article 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at the instance of Mst. Salih Sabba complainant.

2. The respondents are accused of having, 4/5 days prior to the report, at 'Khuftan Vela' trespassed into the house of the complainant, with intent to outrage her modesty. The children of the complainant are stated to have raised hue and. cry on account of which the respondents made good their escape. The respondents were also stated to have torn shirt of the complainant during the struggle. Explaining the delay in lodging of F.I.R. it was mentioned that at the relevant time Muhammad Anwar, husband of the complainant was in Hangu in connection with labour and on his return to the house, the matter was reported to the police.

3. The respondents moved applications before Aala Illaqa Qazi/Judicial Magistrate Shangla at Alpuri for grant of bail which were rejected through order, dated 7‑3‑2002. However, the learned Sessions Judge/Zilla Qazi Shangla at Alpuri was pleased to extend concession of bail in favour of the respondents through his impugned order, dated 10‑4‑2002.

4. The complainant, feeling aggrieved, has approached this Court by way of filing instant applications (Cr. Misc. Nos. 458 of 2002 and 564 of 2002) under section 4975), Cr.P.C. seeking cancellation of bail granted to the respondents per the impugned order. This order shall dispose of both the matters.

5. Mr. Shaukat Ali, Advocate for the complainant bitterly criticized the impugned order and contended, inter alia that in view of the direct charge, absence of motive for false implication and other facts and circumstances of the case, learned trial Judge had no good reason to accept applications of the respondents and release them on bail.

6. Conversely Malik Akhtar, Advocate for the State assisted by Mr. Khalil Khan Khalil, Advocate for the respondents, supported the impugned order and submitted that in view of the delay in lodging of the F.I.R. and material contradiction in the statements of the complainant and her daughter Mst. Fahmida and other facts on record, the respondents were enlarged on bail for valid reasons and the impugned order hardly calls for interference of this Court, It needs no reiteration that once a Court or competent jurisdiction passes bail order, very strong and exceptional grounds are required to cancel the same. The bail can be cancelled where the person on bail repeats the offence, hampers the investigation, makes some efforts to tamper with the evidence, commits some acts of violence against the police and prosecution witnesses or manages to flee away from the country or beyond the contort of sureties. The State v. Ali Muhammad (1993 PCr.LJ 519), S. Amnaullah Shah v. The State (1996 SCMR 241), Gulzar Ahmad v. State (1997 MLD 1606), Tariq Bashir v. State (PLD 1995 SC 340 and Usman v. Muhammad Azam and another (2001 PCr.LJ 1461).

7. It is not denied that considerations for grant of bail and that of cancellation are entirely different and once a Court of competent jurisdiction has granted bail, very strong and exceptional grounds are required to cancel the same. Abbas Khan v. The State and others (1992 PCr.LJ 417) and Gul Raza v. The State and two others (1993 PCr.LJ 414).

8. Undoubtedly it is within the discretion .of the competent Court to grant bail to the' accused persons in appropriate cases but the Court is, however, under heavy duty to exercise its discretion fairly, justly and properly which, in any case, should be based on good grounds to meet the ends of justice.

9. In the instant case without expressing opinion about merits of the case I find that discretion has been exercised fairly, justly and properly which invites no interference of this Court. The delay in lodging of the F.I.R: I and material discrepancy in the statement of the complainant and that of her daughter Mst. Fahmida has made the case of the respondents arguable for the purpose of, bail as rightly held by learned trial Judge.

10. Finding no force in these application I dismiss the same and maintain the impugned order. However, in case the respondents are found to have misused the concession of bail, the complainant shall be liberty to move an application afresh for cancellation of bail. S.M.A.H./583/P Petition dismissed.