2009 S C M R 1202

[Supreme Court of Pakistan]

Present:Ijaz-ul-Hassan Khan and Muhammad QaimJan Khan, JJ

MUHAMMAD AZHAR—-Petitioner

Versus

DILAWAR and another—-Respondents

Criminal Petition No.20-P of 2009, decided on 17thApril, 2009.

(On appeal from the judgment, dated 26-1-2009 of thePeshawar High Court, Peshawar passed in Criminal Miscellaneous No.1667 of2008).

(a) Criminal Procedure Code (V of 1898)—

—-S. 497(5)—Penal Code (XLV of 1860),S.324—Constitution of Pakistan (1973), Art.185(3)—Cancellation of bail,refusal of—High Court while granting bail to accused had assigned sound andvalid reasons, which could not be shown to have suffered from any infirmity orirregularity, legal or factual, warranting interference with the impugnedjudgment—Strong and exceptional grounds were required for cancelling bailgranted to accused by a competent Court of law, e.g. whether order grantingbail was patently illegal, erroneous, factually incorrect and had resulted inmiscarriage of justice—No exception could be taken to the conclusion rightlyreached by the High Court—Accused was not shown to have misused theconcession of bail and he was entitled to remain on bail—Leave to appeal wasdeclined to complainant accordingly.

(b) Criminal Procedure Code (V of 1898)—

—-S. 497(5)—Cancellation ofbail—Principle—Considerations for cancellation of bail are quite distinctfrom the considerations for grant of bail—Strong and exceptional grounds arerequired for cancelling the bail granted to an accused by a competent Court oflaw; it is to be seen as to whether order granting bail is patently illegal,erroneous, factually incorrect and has resulted in miscarriage of justice.

Mir Adam Khan, Advocate-on-Record for Petitioner.

Mian Muhibullah Kakakhel, Advocate Supreme Court andMs. Tehmina Muhibullah, Advocate Supreme Court for Respondent No.1.

Hafiz Aman for the State.

Date of hearing: 17th April, 2009.

JUDGMENT

IJAZ-UL-HASSAN KHAN, J.—Muhammad Azhar,petitioner, seeks leave to appeal from a judgment dated 26-1-2009 of thePeshawar High Court Peshawar, granting bail to Dilawar, respondent No.1, incase F.I.R. No.981 dated 15-9-2008 registered at Police Station Tangi,Charsada, under section 324, P.P.C.

2. Facts of the case have been mentioned elaboratelyin the order dated 2-12-2008 of learned Additional Sessions Judge as well as inthe impugned judgment and in the memo. of petition and need not be reiterated.Suffice is to state that on refusal of grant of bail to respondent No.1 in theabove mentioned case by learned Judicial Magistrate, Tangi, District Charsadda,vide order dated 17-11-2008, he filed application seeking bail before learnedAdditional Sessions Judge, Charsadda, and on its dismissal vide order dated2-12-2008, the respondent preferred Criminal Miscellaneous. No.1667 of 2008before learned Peshawar High Court, Peshawar, which has been allowed grantingbail to the respondent through the judgment impugned herein.

3. Mir Adam Khan, Advocate, appearing for thepetitioner argued that learned Judge in the High Court has discussed merits ofthe . prosecution case in detail and making deep appraisal of the evidencegranted bail to the respondent in complete departure to the principlesgoverning grant of bail under prohibitory clause of section 497, Cr.P.C.; thatthere was sufficient material on the file consisting of ocular account, medicalevidence and motive connecting the respondent with commission of offence; thatlearned High Court has not properly evaluated the evidence observing that inthe cross case bail has been granted to the accused and that impugned judgmentis perverse, fanciful, shocking and not sustainable in law.

4. Mian Muhibullah Kakakhel, Advocate, assisted by HafizAman, Advocate, on the other hand, supported the impugned judgment on allcounts and prayed for its sustenance.

5. Having heard learned counsel for the parties andre-examining the material on file, we feel that submissions of learned counselfor the petitioner do not carry weight. Learned counsel despite his bestefforts could not point out any infirmity or irregularity, legal or factual,warranting interference with the impugned judgment. Learned High Court whilereaching the conclusion has assigned sound and valid reasonings in lastparagraph of the impugned judgment, which is reproduced hereinbelow forfacility sake:—

“There is nothing onthe record to show that the petitioner is a previous convict, habitual orhardened, desperate and dangerous criminal. The accused in the cross-F.I.R.have already been released. The petitioner is in continuous custody since9-11-2008. The investigation in the case is complete and the petitioner is nomore required for further investigation and if he is kept in custody, no usefulpurpose would be served.”

6. It needs no reiteration that considerations forthe grant of bail are quite distinct from the consideration for cancellation ofbail. Once bail has been granted by a competent Court of law strong andexceptional grounds are required for cancelling the same, as held by this Courton a number of occasions. It is to be seen as to whether order granting bail ispatently, illegal, erroneous, factually incorrect and has resulted inmiscarriage of justice. Considering the case of the respondent for grant ofbail on the above touchstone, we are of the view that learned High Court hasrightly reached the conclusion and no exception can be taken to it. Therespondent is on bail since 26-1-2009 and he is not shown to have misused theconcession of bail. He is entitled to remain on bail.

7. In view of the above, finding no force in thispetition, we dismiss the same and refuse to grant leave.

N.H.Q./M-66/SC Leaverefused.