2019 PLP 1468 (YLR)

AFTAB AHMED GORAR, J.

Through captioned application under section 561-A, Cr.P.C. read with section 185-F of the Customs Act, 1969 the applicant has sought cancellation of bail granted to respondent vide order dated 25.02.2017 passed in Case No. 16 of 2017 by Special Judge, (Customs and Taxation), Karachi.

2. Learned counsel for the applicant while reiterating the facts and grounds mentioned in the memo of Misc. Application, submitted that the court has erred to consider the very fact that there is substantive material witnesses against the respondent which fully support the version of applicant. Learned counsel for the applicant has read over the bail order, impugned herein, whereby the respondent was admitted to bail but could not point out any illegality or perversity in it.

3. Conversely, the learned counsel for the respondent argued that the bail was granted to the respondent after considering the entire record. Learned counsel further argued that the respondent has not misused the concession of bail. Lastly he contended that no cogent ground has been raised in the application for cancellation of bail, which suffice to hold that the bail is liable to be recalled or the bail is liable to be cancelled. To support his contentions he has relied upon the cases reported in 2016 PCr.LJ 533 and 2011 SCMR 710.

4. Heard the arguments advanced by both learned counsel, representing the parties and record has also been perused.

5. The learned Special Judge in penultimate para of bail order, impugned herein, has observed that: "I have considered the arguments advanced on behalf of the parties and have gone through the material available on record. According to learned counsel the present applicant accused only imported one consignment and have no concern with remaining 09 consignments as alleged by the prosecution, the contention raised by the learned counsel requires consideration. The role of present applicant is yet to be determined when the evidence is brought on record during trial. The challan has been filed, therefore, in my view the present case for further enquiry is made out. Accordingly, the applicant/accused Shakil-ur-Rehman is admitted on bail subject to furnish solvent surety in the sum of Rs.5,00,000/- (Rs.Five Lac only) and P.R. bond in the like amount with the satisfaction of this Court."

6. It is settled that bail can only be cancelled if bail granting order appears to be perverse and gross illegality has been done. The principles governing the grant of bail and the cancellation of bail substantially stand on different footings. Courts have always been slow to cancel bail already granted as the liberty of a person cannot be curtailed on flimsy grounds. No interference with an order of bail is required to be made unless the order lacks in reasons or is per functionary in nature. Once bail has been granted, the prosecution should make out strong case for cancellation not by making allegation alone but by giving substantive proof of such allegation. The cancellation of bail is harsh order because it interferes with liberty of an individual hence it must not be resorted to lightly and power to take back in custody is to be exercised with due care and circumspection. I am also fortified by the dictums laid down by the honourable Supreme Court reported in 2009 SCMR 786, 2004 SCMR 1160, 2005 SCMR 1539, 1994 SCMR 1064 and 2004 SCMR 231 in which it was held that considerations for cancellation of bail are quite distinct from the considerations for grant of bail. Once bail has been granted by a competent court of law, strong and exceptional grounds are required for cancelling the same. It has to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice. If in a case, the trial is in progress and a number of prosecution witnesses have been examined and few are left to be examined, it would not be appropriate to send the accused behind the bars as it would not serve any useful purpose, specially so when there is no allegation of misuse of concession of bail granted to the accused.

7. In view of whatever mentioned above, particularly in the light of case law of Apex Court mentioned above, it is not a fit case for cancellation of bail as strong and exceptional grounds are needed to get it cancelled. Accordingly, the captioned Spl. Crl. Misc. Application being devoid of merits is dismissed.

8. It needs not to iterate that the observation made hereinabove is tentative in nature, shall not affect the merits of the case. SA/S-7/Sindh Application dismissed.