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Petitioner: Mst. HALEEMA BIBI VS Respondent: StateHonorable Justice Abdul Sami KhanSaif Ullah Khan,Arshad Ali Chohan
2013 Y L R 1190
[Lahore]
Before Abdul Sami Khan, J
Mst. HALEEMA BIBI---Petitioner
Versus
The STATE and 5 others---Respondents
Criminal Miscellaneous No.6413-CB of 2012, decided on 11th December, 2012.
(a) Criminal Procedure Code (V of 1898)---
----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 148, 149, 364 & 201---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, kidnapping or abducting in order to murder, causing disappearance of evidence of offence---Petition for cancellation of bail, dismissal of---Accused persons allegedly killed the deceased, however they were granted pre-arrest bail by the Trial Court---Validity---Accused persons were declared innocent by the investigating officer and case was found to be false and baseless---Dying declaration of deceased was also on record, wherein she had allegedly stated that she had taken poison herself---Authenticity of said dying declaration could be thrashed out after recording of evidence by Trial Court---Father of deceased also appeared before Medical Officer and recorded his statement to the effect that he did not want to proceed with the case anymore---No allegation of misusing or abusing concession of bail had been levelled by the complainant against accused persons---Petition for cancellation of bail was dismissed in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 497(5)---Cancellation of bail---Scope---For cancellation of bail very strong, exceptional and cogent reasons regarding misusing, abusing, hampering with prosecution evidence and repeating of the same offence were required.
Faisal Waheed v. The State 1999 PCr.LJ 882; Ehsan Akbar v. The State and 2 others 2007 SCMR 482; Mst. Noor Habib v. Saleem Raza and others 2009 SCMR 786 and Muhammad Azhar v. Dilawar and another 2009 SCMR 1202 rel.
Saif Ullah Khan for Petitioner.
Nisar Ahmad Virk, Deputy Prosecutor-General for the State with Shaukat, S.-I. with record.
Arshad Ali Chohan for Respondents Nos. 2 to 6.
ORDER
ABDUL SAMI KHAN, J.---Through this petition under section 497(5), Cr.P.C. the petitioner has sought cancellation of pre-arrest bail allowed to respondents Nos. 2 to 6 by the learned Additional Sessions Judge, Pakpattan Sharif vide order dated 25-4-2012.
2. The learned counsel for the petitioner in support of this petition contends that the learned Additional Sessions Judge by allowing pre-arrest bail to respondents Nos. 2 to 6 has exercised his jurisdiction in an improper manner. The learned Additional Sessions Judge has failed to appreciate this fact that according to the narration of the complaint filed by the complainant specific roles have been assigned to the respondents but even then the learned trial Court has failed to take into consideration this fact. Initially a criminal case was got registered against the respondents but during the investigation the Investigating Officer joined hands with the accused/respondents and has caused a great loss to the case of the complainant. Feeling aggrieved of the investigation the complainant has filed a private complaint in which the respondents have been summoned to face trial. The order passed by the learned Additional Sessions Judge-I, Pakpattan Sharif is against the settled principles of governing the bail to the accused which needs to be recalled. Bail before arrest is an extraordinary remedy which is meant for innocent persons but in this case the respondents have done to death an innocent young girl without any lawful justification.
3. On the other hand the learned Deputy Prosecutor-General assisted by the learned counsel for respondents Nos. 2 to 6 has vehemently opposed the contentions of the learned counsel for the petitioner and submits that after registration of F.I.R. it was thoroughly investigated and the Investigating Officer comes to the conclusion that the F.I.R. is false. A cancellation report was prepared and submitted by the Investigating Officer but the same was disagreed by the learned Area Magistrate. The complainant filed a private complaint and the respondents were duly summoned by the learned trial Court to face trial and for that reason they have procured bail before arrest from the learned trial Court. Thus, the learned trial Court has passed a well-reasoned order while confirming the bail before arrest of the respondents. The dying declaration of the deceased was also recorded in this case in which she has categorically stated that she has taken poisonous substance after having some exchange of hot words with her mother. Father of the deceased in inquiry under section 174, Cr.P.C. has appeared before the learned Area Magistrate along with legal heirs and they have unanimously stated before the learned Area Magistrate that they do not want to pursue this case as their daughter has taken poisonous substance. The bail granting order of the learned trial Court is in accordance with law and needs no interference by this Court.
4. I have heard the learned counsel for the parties, gone through the record with their able assistance and also perused the impugned bail granting order of the learned Additional Sessions Judge, Pakpattan Sharif dated 25-4-2012 with great care and caution. It has been noticed by this Court that it is an admitted fact that after registration of F.I.R. No. 334 of 2011 the Investigating Officer has prepared a cancellation report but the same was disagreed by the learned Area Magistrate Section 30, Pakpattan Sharif. Feeling aggrieved of the investigation the complainant constrained to file a private complaint in which the respondents have been summoned by the learned trial Court. The respondents have procured their ad interim pre-arrest bails from the learned trial Court and the same was confirmed on 25-4-2012 with a well-reasoned order. During the investigation of the criminal case the respondents have also been declared innocent by the Investigating Officer after finding the case to be false and baseless. A Dying Declaration of the deceased is also on record and authenticity of the same would be thrashed out after recording of evidence by the learned trial Court. Moreover Muhammad Yasin father of the deceased duly appeared before the Medical Officer and got recorded his statement to the effect that he did not want to proceed this matter anymore.
5. Apart from the discussion made in preceding paragraph no allegation of misusing or abusing of the concession of bail has been levelled by the petitioner upon respondents Nos. 2 to 6 nor any argument has been addressed before this Court today in this regard so as to make basis for cancellation of bail. Even otherwise law is quite settled that the grounds for grant of bail and those for its cancellation are entirely different. For cancellation of bail very strong, exceptional and cogent reasons regarding misusing, abusing, hampering with the prosecution evidence and repeating the same offence are required. Reliance is placed on the cases of Faisal Waheed v. The State (1999 PCr.LJ 882), Ehsan Akbar v. The State and 2 others (2007 SCMR 482), Mst. Noor Habib v. Saleem Raza and others (2009 SCMR 786) and Muhammad Azhar v. Dilawar and another (2009 SCMR 1202).
4. For what has been discussed above I have not seen any force in this petition which is hereby dismissed.
MWA/H-2/L Petition dismissed.