C.M No.2486-M of 2015 This application, under section 561-A Cr.P.C, seeking permission to place on record additional documents is allowed subject to all and just legal objections.
MAIN CASE
2. Through this single order, I intend to dispose of this petition as well as Crl.Misc.No.7692-BC/2013, having commonality of law and facts viz. In both these petitions, the petitioner-complainant has prayed for recalling of order dated 14.03.2013 whereby Naveed Zafar and Parveen Zafar (respondent No.1 in both these petitions and hereinafter to be referred as 'the respondents') were granted bail in case FIR No.1545 dated 17.12.2012 registered at Police Station Batala Colony, Faisalabad, in respect of the offences under sections 379, 406 PPC.
3. A perusal of order sheet shows that notices in these petitions were issued to the respondents on 08.04.2015 and the next date was fixed as 14.05.2015 on which date these petitions were adjourned for 25.05.2015 due to non-availability of the learned counsel for the petitioner-complainant. Again on 25.05.2015, hearing of these petitions was not possible due to absence of the learned counsel for the petitioner-complainant and these petitions were fixed for 03.06.2015 when learned counsel for the petitioner-complainant sent a written request for an adjournment. Resultantly, the hearing was postponed till 10.06.2015 when the proceedings could not mature into reality due to non-availability of the learned counsel for the respondents and in presence of the learned counsel for the petitioner-complainant the next date was fixed as 23.06.2015 when again the learned counsel for the petitioner-complainant opted not to appear and the petitions was adjourned for 24.06.2015 with the clear cut note that no further adjournment would be granted. On 24.06.2015, Malik Muhammad Zahid, Advocate appeared on behalf of learned counsel for the petitioner- complainant and requested for an adjournment on account of ailment of the principal counsel.
Though there was no justification for adjournment in view of the clear cut warning contained in order 23.06.2015, however, while showing leniency the petitions were fixed for today to enable the learned counsel for the petitioner-complainant to argue the case. Today despite repeated calls, neither learned counsel for the petitioner-complainant nor anybody else on his behalf has entered appearance. In this pathetic state of affairs, these petitions cannot be kept pending awaiting presence of the learned counsel for the petitioner-complainant as the same pertain to the year 2013 and the respondents, after issuance of notices, are appearing before the Court almost on each and every date of hearing.
4. The grounds urged by the learned counsel for the petitioner-complainant in these petitions are that while granting pre-arrest bail to the respondents, it escaped notice of this Court that the offences under sections 379,406 PPC were fully attracted against them; that allegations contained in the FIR were duly supported by the documents produced by the petitioner-complainant before the police during investigation thus the respondents were not entitled for pre-arrest bail; that the delay in registration of FIR was fully explained thus the said ground could not be made basis for grant of pre-arrest bail to the respondents; that the observation of this Court that the offences do not fall within the prohibitory clause of section 497 Cr.P.C, is not sustainable for the reason that it is not an absolute rule to grant of bail in cases which fall outside prohibitory clause of section 497 Cr.P.C. Rather each case is to be decided on its own merits; that sufficient material was available on record to connect the accused with the commission of offence thus they were not entitled for grant of pre-arrest bail; that after grant of extra ordinary relief of pre-arrest bail by this Court, respondents misused the same regarding which a cross version has already been registered by the police under sections 452,379,354,148,149 PPC in case FIR No.502/ 2013. Learned counsel for the petitioner-complainant has also referred to the cases reported as Shameel Ahmed v. The State (2009 SCM R 174) Shah Nawaz v. The State (2005 SCM R 1899) Muhammad Jahangir Badar v. The State & others (PLD 2003 SC 525), Muhammad Siddique v. Imtiaz Begum & 2 others (2002 SCM R 442) Muhammad Hussain v. Zaheer Ahmed & others (2001 SCM R 1412), Zia-ul-Hassan v. The State (PLD 1984 SC 192), Muhammad Hussain v. The State (1982 SCM R 227) in support of his oral submissions.
5. Conversely, learned counsel appearing on behalf of the respondents, while defending the bail granting order, submits that the respondents have been granted bail as per law on the subject; that cross-version recorded at the behest of the petitioner-complainant has already been found false by the police and the opinion of the police also found favour at the hands of Judicial Magistrate concerned; that the petitioner is not interested in prosecuting her case, proof positive whereof is that trial of the case has already been consigned to record by the Magistrate concerned while pressing into service the provisions of section 249-C Cr.P.C as the petitioner-complainant was not appearing before the Court and that no proof of misuse of bail by the respondents has been produced by the petitioner-complainant.
6. On the other hand, learned Deputy Prosecutor General, while supporting the plea taken by the petitioner-complainant in these petitions, states that the respondents are specifically nominated in the FIR with exactitude of their respective role thus bail granting order in favour of respondents deserves to be recalled. However, upon Court's query, he has frankly conceded that the trial of the case has already been consigned to record due to non-appearance of the petitioner-complainant before the trial court.
7. I have heard the learned counsel for the respondents as well as learned Deputy Prosecutor General and have also gone through the contents of these petitions.
8. The prime grounds taken in these petitions for cancellation of bail granted to the respondents are that this Court has not appreciated the case-law on the subject in its true perspective and the respondents have misused the concession of pre-arrest bail. Firstly, taking up the plea of misusing of concession of bail by the respondents, I have observed that the cross-version registered against the respondents in case FIR No.502/13 was found false by the police. Further, the opinion of the police has also been affirmed by the Judicial Magistrate concerned. Thus, at this stage, the petitioner-complainant cannot take any premium on the basis of her cross-version to establish that after grant of bail by this Court, the respondents have misused the same. Moreover, there is nothing on record that order of the Judicial Magistrate concurring with the opinion of the police has ever been challenged before any higher forum.
9. Insofar as the case-law referred to by the learned counsel for the petitioner-complainant in these petitions is concerned, suffice it to observe that the same is not applicable to the facts and circumstances of the present case inasmuch as in none of those cases, there was such unconscionable delay in lodging the FIR. In criminal matters, each case is to be decided on the basis of its peculiar facts and circumstances. A perusal of order, impugned in these petitions, shows that pre-arrest bail was granted to the respondents after giving full-fledge hearing to the learned counsel representing the petitioner-complainant. Further, all the objections taken by the petitioner-complainant side have exhaustively been attended to in the impugned order.
10. It is interesting to note that on the one hand the petitioner-complainant is very anxious towards recalling/cancellation of bail granted in favour of the respondents but on the other she reluctant to appear before the trial. A perusal of documents produced by the learned counsel for the respondents through miscellaneous applications shows that due to nonappearance of the petitioner-complainant before the trial court, the trial of the case has already been consigned to record room under section 249-C Cr.P.C. In this regard, order dated 07.04.2015 of learned trial court can be referred with convenience. In this state of affairs when the petitioner-complainant herself is not interested to get the trial concluded, nothing adverse can be attributed to the respondents who have been facing the agony of appearance before this court as well as the trial court on each date of hearing.
11. It is well entrenched by now that when a bail has been granted by a court of competent jurisdiction on the basis of valid reasons, the same cannot be recalled/cancelled until and unless exceptional grounds are established by the prosecution. Reliance in this regard can be placed on the case reported as Muhammad Nazir v. Fazal Karim (PLD 2012 S.C. 892) wherein while dealing with the powers of the court regarding cancellation of bail, the apex Court of the country has inter alia observed as under:- "It is trite law that considerations for grant of bail and those for its cancellation are entirely different.
No allegation has been leveled before us regarding misuse or abuse of concession of law by respondent No.1. In these circumstances no occasion has been found for us for interference with the legitimate exercise of jurisdiction and discretion in the matter by the High Court through its order assailed through the present petition.
Further in the case of Muhammad Azhar v. Dilawar and another (2009 SCM R 1202) the august Supreme Court has laid law to the following effect:- "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."
12. Insofar as the contention of the learned Deputy Prosecutor General that the conduct of the respondents portrayed in the FIR justifies cancellation of bail granted to them is concerned, suffice it to observe that when he himself has admitted that trial of the case has already been consigned to record by the trial court while exercising powers under section 249-C Cr.P.C, the respondents cannot be sent behind the bars awaiting presence of the petitioner-complainant before the Court.
Moreover considerations of bail and for cancellation thereof being entirely different, the assertion of the learned Deputy Prosecutor General cannot be given any weightage.
13. For what has been discussed above, I see no force in these petitions which are accordingly dismissed.