2016 P Cr.

L J 1790
[Peshawar (Mingora Bench) Dar-ul-Qaza]
Before Muhammad Younis Thaheem, J
NISAR AHMAD---Petitioner
Versus
The STATE through Additional Advocate-General and another---
Respondents
Criminal Miscellaneous Bail Cancellation Application No. 30-M of 2016, decided on 8th June,
2016.

(a) Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd; dacoity, armed
with deadly weapon; common object---Bail, cancellation of--- Principle of consistency---
Applicability---Abscondence---Effect---Principles---Accused and co-accused had been directly
charged by the complainant for murder of his daughter, who had been done to death in a brutal
manner by giving her electric shocks---Court below, while granting bail to the accused, had
totally misread the material available on the record, as the role of the accused was considerably
different and distinguishable from the role of the co-accused, who had been granted bail by the
High Court---Accused, during his statement under S. 161, Cr.P.C, had admitted that he was part
of the unlawful assembly with a specific role---Statement of the accused recorded under S. 161,
Cr.P.C could have been taken into consideration, when the occurrence was unseen---Accused
had remained absconder for a long period of one year without advancing any explanation in that
regard---Abscondence alone although could not be made basis of refusal of bail, when the
accused was otherwise entitled to the concession of bail, but, in the context of present case,
wherein the deceased was the close relative of the accused, his intentional disappearance soon
after the occurrence was tentatively a believable link in respect of involvement in the case---Trial
of the case had already commenced---Reasonable grounds existed on the record to believe that
the accused was prima facie connected with the commission of the offence---Discretion had been
carelessly, erroneously and wrongly exercised by the Additional Sessions Judge in favour of the
accused by considering the principle of consistency in a very casual manner---Court below had
enlarged the accused without taking into consideration the role of each and every accused as well
as gravity of the offence---Impugned bail granting order was, therefore, recalled---Application
for cancellation of bail was allowed accordingly.
Muhammad Yousaf Butt v. P.C. Abdul Lateef Shar and another 2012 SCMR 1949 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 497(5)---Bail, cancellation of---Principles---Bail once granted was not to be ordinarily
cancelled, because the principle of cancellation and grant of bail are different---Courts have to be
slow in cancelling bail, yet there is no absolute bar when sufficient material is available on
record, which prima facie connects the accused with the commission of the offence.

(c) Criminal Procedure Code (V of 1898)---

----S. 161---Examination of witnesses by police---Statement of accused recorded under S. 161,
Cr.P.C.---Relevance---Accused, during his statement under S. 161, Cr.P.C., had admitted that he
was part of the unlawful assembly with specific role---Statement of the accused recorded under
S. 161, Cr.P.C. could have been taken into consideration, when the occurrence was unseen one.

Muhammad Yousaf Butt v. P.C. Abdul Lateef Shar and another 2012 SCMR 1949 rel.

Abdul Halim Khan for Petitioner.

Aurangzeb Khan and Rafiq Ahmad, Assistant Advocate-General for Respondents.

Date of hearing: 8th June, 2016.

JUDGMENT
MUHAMMAD YOUNIS THAHEEM, J.---The petitioner-complainant Nisar Ahmad in
case FIR No. 93 dated 12.02.2015, Police Station, Wari , District Dir Upper, registered under
sections 302, 148, 149, P.P.C. has asked for recalling of bail granted to the accused-respondent
Altaf Hussain by learned Additional Sessions Judge/Izafi Zilla Qazi, Dir Upper, vide his order
dated 02.03.2016.
2. As per contents of the FIR, the petitioner-complainant Nisar Ahmad charged the accused-
respondent Altaf Hussain along with other co-accused for murder of his daughter Mst. Rabia
aged about 16/17 years.
3. Arguments heard and record perused.
4. No doubt, bail once granted should not ordinarily be cancelled because the principle of
cancellation and granting of bail are different. Although, the Courts have to be slow in cancelling
the bail, yet there is no absolute bar when there is sufficient material available on the record,
which prima facie connects the accused with the commission of offence. The record reveals that
the accused-respondent along with co-accused have been directly charged by the complainant for
murder of his daughter, who had been tortured and done to death in brutal manner by giving her
electric shocks. The deceased was engaged to one Asif, who is still absconder, while the present
accused/respondent is brother-in-law of the deceased and brother of Asif. The learned Additional
Sessions Judge concerned, while granting bail to the accused/respondent No. 2 vide impugned
order has totally misread the material available on record as the role of present
accused/respondent is considerably different and distinguishable from those co-accused, who
have been granted bail by this Court. The bail granting Court had wrongly applied the principle
of consistency and instead of evaluation of material available on record improperly had assessed
the facts of the case only in view of said principle of consistency. Even tentatively present
accused/respondent was none else but real brother of the absconding accused Asif, who actively
participated in the commission of offence by arranging UPS, electric wires etc and giving
electric shocks to the deceased. This fact further got support from the statement of
accused/respondent recorded under section 161, Cr.P.C., wherein he had narrated the whole facts
of this unfortunate incident and also admitted that he was part of this unlawful assembly with
specific role, who had tortured and done to death a young lady of 16/17 years under the garb of
'Ghairat'/'Izzat', so, when the occurrence is unseen one, even statement of an accused recorded
under section 161, Cr.P.C. could be taken into consideration. In this regard, reliance is placed on
case titled as "Muhammad Yousaf Butt v. P.C. Abdul Lateef Shar and another" (2012 SCMR
1949). Besides, the accused/respondent remained absconder for considerable long period of one
year without advancing any plausible explanation in this regard. No doubt there is no cavil with
this legal proposition that absconsion alone cannot be made basis for refusal of bail, when
accused is otherwise entitled to the concession of bail, but in context of present case, wherein the
deceased was none else but close relative of the accused/respondent, so, his intentional
disappearance soon after the occurrence is tentatively a believable link in respect of involvement
of the accused, but this vital aspect of the case too, carelessly ignored by the Court while
granting bail to accused/respondent No. 2.
5. Moreover, trial in the case has already been commenced, inasmuch as charge has been framed
against the accused and the case was fixed for statements of PWs, when in the meanwhile record
of the case was requisitioned to this Court in connection with the instant petition. Thus, on
tentative assessment of the case, there exist reasonable grounds available on the record to believe
that accused/respondent No. 2 is prima facie connected with commission of offence. The accused
person involved in above like case, did not deserve leniency. Therefore, I am of the view that
discretion has been carelessly, erroneously and wrongly exercised by the learned Additional
Sessions Judge concerned in favour of respondent No. 2 by considering the principle of
consistency in a very casual manner and so had enlarged the accused/respondent No. 2 on bail
without taking into consideration the role of each and every accused as well as gravity of the
offence, wherein as stated earlier a young girl student of 9th class was tortured, brutally and
killed through electric shocks.
6. For what has been discussed above this Court found, the impugned bail granting order dated
02.3.2016 as perverse in the eye of law, so, resultantly the same is set aside and the bail allowed
to the respondent Altaf Hussain is hereby recalled. He is present in court so is taken into custody
and be dealt with in accordance with law.
These are reason of my short order of even date.
SL/256/P Bail cancelled