' WAQAR AHMAD SETH, J.---State through Regional Director ANF, through Deputy Attorney-General of Pakistan filed this application for cancellation of bail of accused/respondent, granted to him by learned Judge Special Court (C.N.S.), Khyber Pakhtunkhwa, Peshawar vide order dated 29-5-2012 in case F.I.R. No.13 dated 21-2-2012 under section 9 Control of Narcotic Substances Act, 1997 Police Station, Anti-Narcotics Force, Peshawar.
' Arguments heard and record perused.
2. The accused/petitioner's bail petitions were previously rejected on merits and subsequently he applied for bail purely on medical ground which prevailed with learned lower court and bail was granted to him on this score, vide the impugned order. The petitioner alleged to have suffered heart problem twice while in prison. The record shows that Superintendent Central jail, Peshawar forwarded the report of Senior Medical Officer, Incharge Central Jail, Peshawar which confirms twice treatment of accused/petitioner at Lady Reading Hospital, Peshawar due to his serious cardiac problem as per investigation done in LRH. Even today, learned counsel for the respondent produced the medical documents dated 2-10-2012 according to which Angiography was conducted to the accused/respondent. These documents further reflect that accused/respondent is suffering from heart disease and in the near future he will be operated for the same.
3. According to legal maxim "In favoram vitae, libertatis, et innocientiae, omnia praesumuntur" (all presumptions are in favour of life, liberty and innocence), hence the illness in the present circumstances cannot be doubted, moreover, unless and until the charge is proved every one is innocent and no one can be put behind the bars as punishment.
4. Even otherwise, once discretion has been exercised by the court of competent jurisdiction, then the same cannot be reversed or recalled until and unless the same is either perverse or illegal. For cancellation of bail, strong and cogent reasons are required to be furnished, which are lacking in the instant case. In such like cases, evidence is appreciated in different perspective as compared to those, wherein, bail is sought.
5. The bail can be cancelled when:--
(i) Exceptionally strong grounds such as abuse/misuse of concession of bail exist;
(ii) A Court cannot cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under section 497(1), Cr.P.C. The discretion is left in the Court under section 497(5), Cr.P.C.
(iii) Grounds for cancellation of bail are pari materia with the principles which apply to setting aside the orders of acquittal.
(iv) Bail can be recalled where the person on bail repeats the offence;
(v) Hampers the investigation;
(vi) Makes some efforts to tamper with the evidence;
(vii) Commits some acts of violence against the police;
(viii) Prosecutes the witnesses; ' Manages to flee away from the country or beyond the control of sureties.
(x) Order of bail has been obtained through misrepresentation or suppression of facts.
6. In view of the above, now it is a settled proposition of law that the grounds and principle for grant of bail are totally different from the ground and principle for cancellation of bail already granted to an accused. The only point required to be considered in the instant cancellation petition is that the bail concession is misused or there is apprehension of tampering of evidence by the accused.
Strong and exceptional grounds are to be proved for cancellation. The Hon'ble Supreme Court of Pakistan in the case of Muzaffar Iqbal v. Muhammad Imran Aziz and others, reported in 2004 SCM R 231 has held as under:-- "It is well-settled by now that "considerations for the cancellation of bail are different from the considerations for the grant of bail. Section 497(1), Cr .P.0 . Prohibits the grant of bail for offences punishable with death or imprisonment of ten years or over. Section 497(5), Cr.P.C. Does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under section 497(1), Cr.P.C. The discretion is left with the Court under section 497(5), Cr.P.C. Which is pari materia with the principles; which apply to the setting aside of the orders of acquittal". (Mian Dad v. The State 1992 SCMR 1289). In view of what has been mentioned hereinabove, it is not a fit case for cancellation of bail as strong and exceptional grounds are needed to get it cancelled which are not available."
7. Similar principles have been laid down in 2009 SCM R 786. The observations of the Apex Court as follows:-- "It needs no reiteration that the considerations for the grant of bail are quite distinct from the considerations for the 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."
8. The same principles are adopted by the Apex Court in 2008 SCM R 715, wherein it has been held that:-- "It needs no reiteration that for cancellation of bail, strong and exceptional grounds are required.
This Court ordinarily does not interfere with the order of the High Court relating to bail particularly in case of murder when the trial is to commence so as to avoid discussion and remarks on the merits of the case. It is to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice."
9. Learned counsel for the petitioner has not produced any record or document showing that the accused/respondent has misused the bail or he is not ill with heart disease. As against this, learned counsel for the respondent has placed on record the latest test report of Angiography and I have gone through the record according to which the investigation of the case had been finalized and challan has been submitted, therefore, physical custody of the accused is not required for the purpose of investigation and the accused-respondent is regularly attending the trial Court proceedings with no allegations or material brought on the record regarding any misuse or abuse of the concession of bail.
10. Learned counsel for the petitioner has not been able to point out any illegality, or jurisdictional defect in the bail granting order, therefore, I do not find any good ground/justification to cancel the bail already granted to the accused-respondent by the court of competent jurisdiction, hence this petition being devoid of any legal merit is dismissed accordingly.
11. It is, however, clarified that observations made herein are just tentative in nature and strictly confined to the disposal of this petition. In near future, if at all, petitioner lay his hands on any document showing that respondent has misused the concession of bail or is not sick, during the trial proceedings, it may file fresh petition.