Find a Lawyer

Criminal Miscellaneous No. 682/B of 1981, decided on Ist April, 198

--- S. 497 (5) -- Bail, cancellation of -- Tender age per se cannot entitle an accused to bail -- Law, however, gives discretion to Court to grant bail in such cases, keeping in view circumstances of a parti cular case --- Accused inflicting a large number of injuries on person of deceased and apprehended alongwith incriminating knife at spot-Exercise of discretion in favour of accused, held, not proper- Bail cancelled in circumstances.-[Age].

-- S. 497 (5) --- Bail, cancellation of -- Bail once granted, cancel lation should not follow in ordinary course unless giving rise to miscarriage of justice or improper exercise of discretion --- Courts, however, having powers in certain situations to cancel bail if facts warranted no course other than a refusal to grant bail.

Barkat Bibi v. Gulzar 1979 S C M R 65 ; State v. Muhammad Malook 1968 P Cr. L J 1232 and Badar-us-Salam v. Muhammad Javed 1975 P Cr. L J 1442 ref.

Shahid Hussain Kadri for Petitioner.

Ch. Zia- ud-Din for Respondent No. 1.

Muhammad Rafiq for the State.

This is an application moved by Allah Ditta, complainant in the case, for cancellation of bail granted by the Court of Session, Jhang, to respon dent Muhammad Aslam in a case under section 302, P. P. C.

2. After the petition has been heard, learned counsel for the State has raised the point that as the bail had been granted without hearing the complainant, he should have moved the Court of Session first. No doubt, a petition for cancellation could be entertained and decided by the Court which had granted the bail because the complainant had not been present and heard there. However, now that notice had been served, the parties are present and the case of the parties has also been heard by me, it will not be proper to send the petitioner to the Court below. In any case there is no bar to the hearing of the application by this Court merely because the matter could also be heard by the Court of Session. Learned counsel for the petitioner has in this respect rightly relied on Barkat Bibi v. Gulzar (1979 S C M R 65).

3. The decision of the Additional Sessions Judge to grant the bail was entirely on the basis of the tender age of the accused. According to the municipal record, he was born on 21^stJuly, 1966 and as such was 14 years, 3 months old at the time of the occurrence. The learned Addi tional Sessions Judge did not advert to the facts alleged in the F. I. R. to the effect that it was a witnessed occurrence, that the accused had been apprehended with the incriminating Knife at the spot and that he had inflicted a large number of injuries on the person of the deceased. Tender age, as is well known, does not per se entitle an accused to bail but the law gives a discretion to the Court to grant bail. The discretion therefore has to be exercised keeping in view the circumstances of the case. I am of the view that on account of the number of injuries caused and apprehension of the accused at the spot, the exercise of the discretion in favour of the accused was not proper.

4. I am not unmindful of the principle that inhere a bail has been granted, a cancellation should not follow in the ordinary course. There has to be something in the nature of miscarriage of justice or improper exercise of discretion which alone can justify the cancellation. However, the Court has the power in certain situations to cancel the bail if the facts e warranted no course than a refusal to grant bail. In this connection

I will refer to State v. Muhammad Malook (1968 P Cr. L J 1232) and Badar-us-Salam v. N1uhammad Javed (1975 P Cr. L J 1442). Neither of the two cases was of capital punishment, yet the bail granted by the Court of Session had been cancelled by the High Court. I, therefore, allow the application and cancel the bail granted by the learned Additional Sessions Judge.

Bail cancelled.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.