' IKRAMULLAH KHAN, J.---Petitioner, Ayesha Bibi has prayed this court for recalling of order dated 15.12.2015 passed by the learned Additional Sessions Judge-VI Abbottabad in case FIR No, 806 dated 28.09.2015 under section 376, P.P.C., whereby accused-respondent namely, Talha Mehmood has been released on bail.
2. According to the FIR, accused-respondent is charged by the complainant/victim for committing sexual intercourse with her after taking on deception to a house situated at Kaghan Colony and then kept her calm on the promise that he will marry her.
3. I have heard learned counsel for the parties as well as learned Assistant Advocate General and gone through the available record.
4. Perusal of the record would reveal that, though the accused-respondent has directly been nominated in the FIR by the complainant for commission of the offence but, as per complainant's version, the occurrence took place on 13.01.2009 while the report was lodged with a delay of more than four (04) years i,e, on 08.07.2013 with an explanation that she remained mum due to fake promise of the accused-respondent that he would marry her.
5. It is further evident from the face of record that after the occurrence, the complainant for the first time submitted a written complaint to the Human Rights directorate at Supreme Court of Pakistan on 06.01.2012, which was sent to the learned District and Sessions Judge Abbottabad for report, whereupon an enquiry was conducted and the learned District and Sessions Judge after recording statements of the parties sent his report back, whereafter through a proper letter bearing No, HRC No, 13442-K/2012 dated 05.11.2012 the petitioner was advised to seek legal remedy from the court of law, whereafter she preferred a petition under section 22-A, Cr.P.C. Before the learned Sessions Judge Abbottabad, however, the same was dismissed vide order dated 13.06.2013 with direction that she may file a private complaint, if so desires.
6. The petitioner approached this court through filing a constitutional petition bearing No, 494- A/2013 which too was dismissed on 26.06.2013, being meritless, however, still the petitioner, feeling dissatisfied from the aforesaid order went to the Supreme Court of Pakistan by filing a civil petition which was allowed vide order dated 15.09.2015, concluding paragraph of which is as below:- "In view of the above circumstances, the impugned order dated 26.06.2013 is not sustainable and is set-aside. This petition is converted into an appeal and disposed of with direction to the petitioner to file an application before the SHO Police Station Mirpur, Abbottabad for registration of FIR and if any cognizable offence is made out, the SHO shall register the case without any hesitation. The police shall also inform the petitioner about the fate of her application. At this stage, DSP present in court states that application of the petitioner for registration of FIR is already pending with the police, which shall be decided strictly in accordance with law within a fortnight."
7. Pursuant to the above directions, the local police registered a case against the accused- respondent under section 376, P.P.C. Wherein he was arrested on 02.10.2015. The petitioner applied to the court of learned Additional Sessions Judge-VI Abbottabad for bail, which was allowed on 15.12.2015, hence, the instant bail cancellation petition.
8. Admittedly, the accused-respondent has directly been nominated in the FIR but there is not an iota of evidence in the shape of Medico-legal Report or otherwise which could prima facie connect him with the commission of offence coupled with the fact that record is also silent about immoral character of the accused-respondent.
9. Moreover, there is also sufficient delay in lodging the report as the occurrence took place on 13.01.2009 while the report was lodged more than after four long years i,e, 08.07.2013. If the time, spent in between the filing of complaint to Human Rights Directorate till registration of FIR, is excluded, then too the petitioner sought her legal remedy after about three years as she, for the first time, moved a complaint to the Human Rights Directorate on 06.01.2012, which delay she could not reasonably explain.
10. Irrespective of the merit of the case, it is settled principle of law that provisions of section 497(5), Cr.P.C. Were not punitive in nature and there is no compulsion for cancelling bail, unless bail granting order was patently illegal, erroneous, factually incorrect and had resulted into miscarriage of justice or where accused was found to be making efforts to misuse the concession of bail by either extending of threats or likelihood of tampering with persecution evidence.
11. Bail should never be withheld as a punishment, however, in peculiar facts and circumstances of a case, if the bail granting order on the face of the available record was found to be perverse, erroneous, factually incorrect resulting into gross miscarriage of justice or has been extended in violation of the established principle for grant of bail, enunciated by apex Court where exceptional grounds were palpable on the face of it, the Court may recall or cancel the same to fulfill the ends of justice.
12. In case in hand, the investigation has already been completed and the bail cancellation petition is pending since last year before this court without any progress and for such reason, the regular trial has not been commenced. At this belated stage, where the case against the accused is otherwise that of further inquiry, while not an iota of evidence on record suggest that the accused either has misused the concession of bail or he has made any attempt to tamper with the prosecution evidence, while on the contrary, the learned court below has granted bail to the accused thereafter, proper appreciation of law and evidence on record, the bail granted to the accused by competent court of law could not be cancelled, where, the learned counsel appearing on behalf of the petitioner did not point out any illegality in the bail granting order.
13. For the foregoing reasons, this and the connected bail cancellation petitions both are hereby dismissed accordingly.