Through this petition, the petitioner has sought cancellation of bail granted to Respondent No, 2 by the learned Addl. Sessions Judge, Chichawatni vide order dated 23.4.2005 in case FIR No, 333/2004 dated 18.9.2004 registered under Section 12 of offence of Zina (Enf. of Hadood) Ordinance VII of 1979 rad with Section 377 PPC at Police Station Kassowal District, Sahiwal.
2. Precisely the allegation against the petitioner is that he committed sodomy with Abdul Majeed aged 14 years, alongwith his co-accused Muhammad .Mushtaq after drinking liquor and also administering liquor to the said victim.
3. Learned counsel for the petitioner submits that the accused/respondent was duly nominated in the FIR with specific role. That Respondent No, 2 moved his pre-arrest bail thrice before the learned Addl. Sessions Judge, which was dismissed for non-prosecution and subsequently he had not approached this Court and was not arrested by the police. Further submits that it was not possible for the learned trial Court to direct Respondent No, 2 to submit bail bonds and he should have to move ,application for bail in this Court or should have been arrested. Reliance has been placed on Muhammad Yousaf vs. Muhammad lqbal" (2005 MLD page 13).
4. On the other hand learned counsel appearing on behalf of the State assisted by learned counsel appearing on behalf of Respondent No, 2 has vehemently opposed the cancellation of bail and submitted that the respondent joined the investigation and was declared innocent by the Investigating Agency. Further submits that there is no allegation against Respondent No, 2 of misuse of concession of bail.
5. I have heard learned counsel for the parties and carefully perused he record. The considerations for cancellation of bail are different from the considerations for grant of bail. The superior Courts have laid down guiding principles for the subordinate Courts to cancel bail granted to an accused according to which bail granted to an accused can only be re-called if:-
(a) bail was granted by a Court having no jurisdiction to grant it;
(b) the accused on bail commits the same offence for which he is being tried or has been convicted;
(c) the accused on bail hampers the investigation;
(d) the accused on bail tempers with the evidence;
(e) the accused absconds after grant of bail;
(f) the accused got bail on The basis of false averments regarding his age or illness, etc.;
(g) the accused was implicated as principal offender in several cases which badly affect the society at large such, as in the cases of heroin, smuggling, etc.;
(h) granting of bail to an accused has become a foundation of revenue against the complainant party, prosecution or the witnesses;-
(o) bail order or the subordinate Court as devoid of reasoning while granting bail and facts of the case were fully implicating the accused for attracting Section 497(1) Cr.P.C.
Moreover strong and exception grounds are needed for cancellation of bail when same is granted by a Court of competent jurisdiction. Reliance B in this behalf is placed on ".B shir Ahmad vs. Mirza Muhammad Ayub" (PLJ 1991 Cr.C. 64). Learned Addl. Sessions Judge has exercised his discretion while passing the judicious order after proper application of his judicious mind. No interference is called for.
6. Even the trial in the case has commenced and case is fixed for evidence by the learned trial Court and attendance of witnesses- has been marked and Respondent No, 2 is attending trial Court. Even otherwise it is practice of the superior Courts is that when a case is fixed for hearing, ordinarily the bail application is not decided on merits and matter is often left to the discretion of the trial Judge and this practice is directly relatable to the "question of prejudice", reliance in this respect is placed on "Muhammad Ismail vs. Muhammad Rafique and another" (PLD 1989 S.C. 585).
7. For what has been discussed above the instant petition stands dismissed being without any substance.