Some Legal Aspects Regarding Cancellation of Bail in Pakistan

by Pir Abdul Wahid

(Advocate High Court of Pakistan)

Legal aspects of Cancellation of Bail in Pakistan
Wahid Pir ABDUL
CANCELLATION OF BAIL PAKISTAN

The information provided in this article is intended to inform but is not a substitute for specific legal or other professional advice where warranted by each situation’s facts and circumstances. Under some Rules of Professional Conduct, this communication may constitute attorney advertising.If you have a legal matter for which you are prepared to receive paid legal consultation please call +92-304-8734889 or email jm@joshandmak.com

As a lawyer often engaged in such matters, I have tried to address some common questions by clients regarding cancellation of Bail through case law illustration below. The article gives potential litigants a good idea as to court attitudes in various situations of bail.Observations and case references are given at the end.I have also attached a copy of the common Bail Referencer used by Pakistani lawyers at the end.

  1. Abduction and murder— Pre-arrest bail granted by Additional Sessions Judge–Cancellation of–Prayer for–Contention that pre-arrest bail be not cancelled and direction be given to trial court to expedite trial–Complainant had been vigilantly pursuing matter and there is no unconscionable delay on his part which may disentitle him to grant of relief–Held: Mere fact that about 16 months have passed since grant of pre-arrest bail, is, per se not sufficient to reject present application–Bail cancelled. PLJ 1994 Cr.C (Lahore) 332
  2. Abduction and zina-bil-jabr — Observations of Sessions Judge that allegations of zina against respondent No.1 are so closely linked with allegations against his co-accused Gulzar that these being inseparable, remain yet to be determined at trial, are absolutely not borne out from evidence on record — Role of respondent No. I of actually committing zina, is far severer than that of co-accused — Held: Statements of abductee and medical examination conducted within an hour of her recovery Prima facie connect respondent No. 1 with offence for which he has been charged –Held further: Plea that challan having been put into court, it is not appropriate to cancel bail granted to respondent No. l , is not tenable — Bail cancelled. PLJ 1993 Cr.C (Peshawar) 273
  3. Attempt to murder— At time of hearing of application for cancellation of bail in High Court, counsel for petitioner was busy before Supreme Court–Held : There is no warrant in law or legal justification for cancelling bail of accused without hearing his counsel–Petition converted into appeal, order passed by High Court set aside and case remanded for hearing of application for cancellation of bail before a Bench other than Judge who passed impugned order. PLD 1996 SC
  4. Bail granted by lower court— Respondent No. 2 was employee of WAPDA and was driving truck on which transformers in question had been taken away–He was allowed bail by Magistrate because mother of his co-accused (respondent No. 3) was allegedly on death bed–Held: This was hardly a ground to release respondent No. 2 on bail–Bail of respondent No. 2 recalled. PLJ 1992 Cr.C (Lahore) 221
  5. Bail to fugitive from law — Two factors clearly disentitled respondent from concession of hail — He was duly named in FIR hut he did not court arrest — When his pre-arrest bail was not confirmed, he did not surrender himself to police — When he again appeared in Court, his prayer for bail should have been straightaway declined on ground that he was a fugitive from law Held: Respondent’s bail application was rejected by Additional Zilaee Adalat at Bhimber and that order having not been challenged, attained finality – Bail cancelled. PLJ 1993 SC (AJK) 28
  6. Cancellation of bail–Bail granted to accused can be cancelled if accused persons mis-use concession of bail and indulge into activities nefarious fur prosecution or for stilling prosecution through Bail- Court, while considering a bail application should take into consideration allegations made in FIR, statements of eye-witnesses and other incriminating material placed by prosecution, including any plea raised by accused. PLJ 1997 Shariat Court (AJK) 8 In case an accused is admitted to bail on the ground of ailment his bail cannot be cancelled afterwards even in case he has recovered after treatment unless there are other circumstances, viz. that accused has misused concession of bail, becomes fugitive of law etc. PLJ 1997 Cr.C. (Lahore) 1617 Bail granted on statutory ground due to continuous detention for over a period of two years from date of arrest–Offence U/Ss. 302/440/324/184/353 PPC–Case was not being processed with all seriousness by Presiding Officer and delay was also caused by Respondent/accused because he obtained many adjournments to engage some Advocate for defence and on some dates counsel did not appear–Held: Discretion on statutory ground cannot be exercised in favour of accused person especially when he was also responsible for causing delay–Bail cancelled. PLJ 1996 Cr.C. (Lahore) 1140
  7. Murder Offence:— Material available on file, prima facie, is not sufficient to set aside discretion of bail allowed to accused-respondent by lower court — High Court can interfere only if discretionary orders passed by courts below are arbitrary, capricious or perverse — Role ascribed to accused-respondent is yet to be inquired into — In such like cases, bail is to be allowed when further inquiry is needed to prove common intention amongst co-accused — Held: Accused-respondent was rightly allowed concession of bail by court below — Appeal dismissed. PLJ 1993 Cr.C.(A.J.K.) 166 Medical officer has certified that Respondent No. 1 was unable to perform any work by right hand due to deformity of fingers and painful shoulder–High Court held him of unsound physique and observed that his participation in occurrence and inflicting injury with weapon of offence needed specific evidence–Observations of High Court are based on medical certificate–Held : It cannot be said that observations have been made on extraneous circumstances–Leave refused. PLJ 1996 SC 850 Bail granted to respondents 1 and 2 on principle of further inquiry–Cancellation of bail–Prayer for–There would hardly be a case which would not require further inquiry, therefore, this element by itself is no ground for granting bail under Section 497(2) Cr.P.C.–An order granting bail which does not fulfil second condition regarding tentative opinion about prima facie guilt or innocence of accused, would be illegal–Accused have misused benefit by administering threats to complainant soon after their enlargement on bail–Held: Accused-respondents were not entitled to bail in circumstances of case–Bail cancelled. PLJ 1992 Cr.C. (Peshawar) 305 PLJ 1991 SC 266 and 1991 SCMR 1849 rel. Prayer for Respondents 2 to 5, according to medico-legal report, suffered different injuries on their persons which could not have gone un-noticed by complainant or eye-witnesses, but report lodged by complainant does not mention these injuries–It is not explained whether incident was on account of trespass or not, place of incident being in land of accused-respondent No.2–Finding that accused-respondents 2 to 5 were visited with charge of offences which were bailable, was based on report under Section 173 Cr.P.C.–Petition dismissed. PLJ 1992 Cr.C.(AJK) 285 No doubt, learned Judge in Chamber entered in unnecessary controversy on both occasions, earlier while rejecting bail application and subsequently while granting bail to respondent No. 1–However, impugned order passed with jurisdiction in discretionary matter, need not be interfered with on such ground–Held: High Court having exercised its discretion in granting bail on facts and circumstances of case, there is no ground to interfere with impugned order–Petition dismissed. PLJ 1994 SC 191 It was stated that respondent No. 1 was suffering from disease “polycythaemia Rubra Vera” since 1970–It is quite interesting to note that since 1970, he has been conducting as a normal man and attending to his day-to-day affairs and only after present occurrence, discease became prominent–All this appeared to have come to picture during prolonged abscondance in a double murder case–It is also conspicuous that he appeared before Law Enforcing Agencies only when original trial got concluded and resulted into acquittal–Disease has now become a part of his biology since 1970 and it is nowhere opined that it cannot be treated in jail–Held: Extension of extraordinary concession was unwarranted–Bail cancelled. PLJ 1994 Cr.C (Peshawar) 193 Respondents 2 and 3 were also specifically named as members of unlawful assembly and were alleged to be armed with .12 bore guns with which they had fired at deceased party–It was again just a coincidence that their shots did not hit any of victims and no premium can be given to them merely on basis of this coincidence or being bad marksmen–Held: Respondents 2 and 3 were also not entitled to concession of bail. PLJ 1993 Cr.C (Lahore) 463
  8. Offence of abduction and Zina-bil-jabr— Abductee made statement under Section 164 Cr.P.C. and charged accused-respondent No.1 for committing Zina-bil-jabr with her–Factum of adultery is proved by medical evidence–Held: Grant of bail to accused- respondent No.1 in a case like this, in circumstances, cannot be justified–Bailof accused-respondent No.1 cancelled. PLJ 1992 Cr.C.(Peshawar) 309
  9. Offence under Section 380 PPC — Pre-arrest bail allowed to respondent No.1 –Cancellation of — Prayer for — Complainant is aiming at recovery of an amount by adopting coercive and awe-inspiring mode of registration of a criminal case against respondent No.1 to whom even he has to pay some money — Involvement of accused (respondent No.1) has not been done in an honest way — Held: Once bail has been granted, there should exist strong and exceptional grounds justifying its cancellation which do not exist in this case – Petition dismissed. PLJ 1993 Cr.C(Lahore) 203 Bail granted by lower court–Cancellation of–Suo moto notice of–Respondent No. 1 was Foreman of WAPDA and had accompanied Muhammad Saleem accused at the time of removing transformers from custody of Abdul Ghani, Lambardar–A stolen transformer ‘was thereafter recovered from him–Transformers was stolen with his active connivance and participation–He avoided his arrest and he could only be arrested after proceedings under Section 87 of Cr.P.C–Held: Giving him premium that despite having remained in custody for about a month, challan had not been submitted in court, was not a justifiable exercise of discretion in his favour–Bail recalled. PLJ 1992 Cr.C (Lahore) 221
  10. Offence under Sections 365/342 PPC–Petition for bail–During pendency of petition in High Court, respondent securing bail from Magistrate–Suo moto notice of cancellation of bail–Accused persons cannot be permitted to play around with courts by putting on garb of their being in custody–Even if it was act of agents and relatives of concerned accused person, he cannot be absolved of his liability for such acts–If he owns such acts, he is guilty of misconduct but in case he takes plea that misconduct was not on his part but on part of his agent, then he has no moral justification to ratain fruit of this misconduct–Held: In either of two situations, accused-respondent cannot be allowed to remain on bail–Bail cancelled. PLJ 1992 SC 85
  11. Offences Against Property (Enforcement of Hudood) Ordinance, 1979–Bail granted to cu-accused of applicant–Cancellation of–Sao moto notice of–Contention that there were no allegations of tampering with prosecution evidence or any other reason which could justify cancellation of bail–Circumstances prima facie indicate that alleged recovery of stolen articles of jewellery from accused and identification of accused by complainant, are factors which corroborate each other to make out a prima facie case against accused, but this material aspect of case was not considered by Mr. Justice Khurshid Hyder Rizvi while arriving at finding that case against accused required further inquiry–Held: Sufficient grounds exist for recalling order whereby bail was granted to accused–Bail of co-accused of applicant cancelled. PLJ 1994 Cr.Cr. (Karachi) 413
  12. Possession of and trafficking in narcotics–Offence of–Grant of bail–Whether discretion was rightly exercised–Question of–Anwar accused was granted bail on ground of sickness of his mother–From medical certificate, it is not clear as to what disease had afflicted said lady–How Magistrate understood disease and also declared that lady was on death bed, is a mystery not yet resolved–Held: This was a reckless exercise of power by Magistrate which cannot be sustained–Held further: Illness of a near-one of accused, is not a ground for release on bail–Bail allowed to Anwar accused re-called. PLJ 1993 Cr.C (Lahore) 35

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