2009 S C M R 1202

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

MUHAMMAD AZHAR----Petitioner

Versus

DILAWAR and another----Respondents

 

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

 (On appeal from the judgment, dated 26-1-2009 of the Peshawar High Court, Peshawar passed in Criminal Miscellaneous No.1667 of 2008).

 

(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 and

valid reasons, which could not be shown to have suffered from any infirmity or irregularity, legal or

factual, warranting interference with the impugned judgment---Strong and exceptional grounds

were required for cancelling bail granted to accused by a competent Court of law, e.g. whether order

granting bail was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of

justice---No exception could be taken to the conclusion rightly reached by the High Court---

Accused was not shown to have misused the concession of bail and he was entitled to remain on

bail---Leave to appeal was declined to complainant accordingly.

 

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

----S. 497(5)---Cancellation of bail---Principle---Considerations for cancellation of bail are quite

distinct from the considerations for grant of bail---Strong and exceptional grounds are required for

cancelling the bail granted to an accused by a competent Court of law; 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 and Ms. 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 the Peshawar High Court Peshawar, granting bail to Dilawar,

respondent No.1, in case 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 elaborately in the order dated 2-12-2008 of learned

Additional Sessions Judge as well as in the 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 the

above mentioned case by learned Judicial Magistrate, Tangi, District Charsadda, vide order dated

17-11-2008, he filed application seeking bail before learned Additional Sessions Judge, Charsadda,

and on its dismissal vide order dated 2-12-2008, the respondent preferred Criminal Miscellaneous.

No.1667 of 2008 before learned Peshawar High Court, Peshawar, which has been allowed granting

bail to the respondent through the judgment impugned herein.

 

3. Mir Adam Khan, Advocate, appearing for the petitioner argued that learned Judge in the High

Court has discussed merits of the . prosecution case in detail and making deep appraisal of the

evidence granted bail to the respondent in complete departure to the principles governing grant of

bail under prohibitory clause of section 497, Cr.P.C.; that there was sufficient material on the file

consisting of ocular account, medical evidence and motive connecting the respondent with

commission of offence; that learned High Court has not properly evaluated the evidence observing

that in the cross case bail has been granted to the accused and that impugned judgment is perverse,

fanciful, shocking and not sustainable in law.

 

4. Mian Muhibullah Kakakhel, Advocate, assisted by Hafiz Aman, Advocate, on the other hand,

supported the impugned judgment on all counts and prayed for its sustenance.

5. Having heard learned counsel for the parties and re-examining the material on file, we feel that

submissions of learned counsel for the petitioner do not carry weight. Learned counsel despite his

best efforts could not point out any infirmity or irregularity, legal or factual, warranting interference

with the impugned judgment. Learned High Court while reaching the conclusion has assigned

sound and valid reasonings in last paragraph of the impugned judgment, which is reproduced

hereinbelow for facility sake:---

 

"There is nothing on the record to show that the petitioner is a previous convict, habitual or

hardened, desperate and dangerous criminal. The accused in the cross-F.I.R. have already been

released. The petitioner is in continuous custody since 9-11-2008. The investigation in the case is

complete and the petitioner is no more required for further investigation and if he is kept in custody,

no useful purpose would be served."

 

6. It needs no reiteration that considerations for the grant of bail are quite distinct from the

consideration for cancellation of bail. Once bail has been granted by a competent Court of law

strong and exceptional grounds are required for cancelling the same, as held by this Court on a

number of occasions. It is to be seen as to whether order granting bail is patently, illegal, erroneous,

factually incorrect and has resulted in miscarriage of justice. Considering the case of the respondent

for grant of bail on the above touchstone, we are of the view that learned High Court has rightly

reached the conclusion and no exception can be taken to it. The respondent is on bail since 26-1-

2009 and he is not shown to have misused the concession of bail. He is entitled to remain on bail.

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

leave.

 

N.H.Q./M-66/SC Leave refused.

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