MUHAMMAD ALAM, J.---Order dated 07-09-2015 of the Sessions Judge Diamer, passed in Sessions Case No,114 of 2015, has been challenged through this petition. The said learned Judge of Sessions Court passed the following order:-- 07-09-2015 Reader's report perused. Challan be registered in the relevant register. Perusal of record shows that after submission of police report on 31-3-2015 learned Judicial Magistrate himself started with the trial of the case despite that offence under section 409 is triable by Court of Session. It is on record that learned Judicial Magistrate has granted post arrest bail to the accused in the instant case on 16-3-2015. This exercise of jurisdiction by the learned Judicial Magistrate 1st Class is illegal. In a case triable by Court of Session learned Judicial Magistrate has to sent the same to this Court but the learned Judicial Magistrate fails to do so. Similarly bail granting order of learned Judicial Magistrate in the instant case also is illegal in view of the principle laid down by the honourable Supreme Court in the case cited "Nasreen Bibi v.
Fakhruddin Shehzad and another" (2015 SCMR page 825). Therefore post arrest bail granted to the accused in the instant case by the learned Judicial Magistrate is hereby set aside. Non-bailable warrant be issued against the accused..."
Sd/x Sessions Judge Diamer
2. Petitioner is admittedly charged for the offences of sections 406/409/420/427, P.P.C., booked through FIR No,03/2015 of Police Station City Chilas. Admitted state of affairs is that soon-after chalking of FIR, police concerned initiated investigation proceedings resulting to arrest of some of the officials of PWD Department. Petitioner moved a bail before arrest petition (BBA No,10/2015) before the then Vacation Sessions Judge at Gilgit, who allowed the same and later on confirmed.
Respondent moved a petition (Criminal Misc. No,18/2015) before the Chief Court, but withdrew the same and order dated 21-05-2015 was passed by the Chief Court. In the meantime, police of Police Station Chilas submitted challan of the case before the then Committal Magistrate Chilas, who sent the same to the then Sessions Judge Diamer. Learned court of Sessions Judge Diamer passed impugned order, whereby, issued non-bailable warrants of arrest for production of the petitioner.
Learned court of Sessions Judge Diamer did so after cancellation of pre-arrest bail facility granted to the petitioner, in the above circumstances. Petitioner moved this petition instead of surrendering before the trial court in compliance with the said non-bailable warrants. This court passed order dated 05-11-2015, whereby, dismissed this petition for non-prosecution. Petition moved Cr. Misc. No,144/2015, seeking restoration of this petition and on dismissal of the same, through order dated 16-11-2015, filed another Criminal Misc. No,162/2015. Through order/judgment dated 14-03-2016, the same was also dismissed by this Court. Feeling aggrieved from the same, petitioner moved the Hon'ble Supreme Appellate Court through Cr.PLA No,25/2016, wherein, petitioner filed a petition Cr. Misc. No,08/2016 for leave to appeal. The Hon'ble Supreme Appellate Court passed order dated 24-08-2016, wherein, held as follows:--
5. "In view of the above discussions, we convert this petition into an appeal and the same is allowed. Consequently, the impugned order dated 14.03.2016 in Criminal Revision No,162/2015 passed by the learned Gilgit Baltistan Chief Court is set aside. The Revision Petition be considered as pending before the learned Gilgit-Baltistan Chief Court and the same be heard and decided expeditiously on its own merit. "
3. Parties advanced arguments on this petition. I have dismissed Criminal Misc. No,162/2015 through my today's order on the same. In my opinion, the said petition had become infructuous in the light of above referred order of the Hon'ble Supreme Appellate Court. The first and the last sentence of the above reproduced operative part of order of learned Supreme Appellate Court, are very important and from joint perusal of the said two sentences, it is evident that the said court has pleased to restore the petition in hand. I have found that Hon'ble Supreme Appellate Court has used words "Revision Petition" in the last sentence and as to the same, the said Hon'ble Court has held that the same be treated as pending in this Court.
4. So the only ground that parties debated before me and advanced arguments, pro and contra the impugned order, is correctness or otherwise of the same in the light of above attending circumstances. Through impugned order, learned trial court has cancelled the bail facility granted to the petitioner or his co-accused by the Vacations Sessions Judge or the Committal Magistrate.
Learned counsel for petitioner was of the opinion that trial court passed impugned order as a result of misconception, i,e,, the trial court did not know about confirmation of bail before arrest by a Sessions Judge, equivalent in judicial powers with that of the trial court. Meaning thereby that trial court had no power to cancel the bail facility of his colleague Sessions Judge. On the other hand, learned Deputy Advocate General vehemently opposed this approach and contended that the impugned order is correct in all respects.
5. I have very thoughtfully considered arguments of the learned counsel for parties. Counsel for parties did not cite any case law. I have myself gone through the file and have come to the conclusion that petitioner has successfully attempted to complex the situation and has delayed trail proceedings of the case as admittedly petitioner never appeared in the trial court after grant of bail before arrest or after cancellation of the same. Petitioner knew that the offences that petitioner is charged with are triable by the Sessions Court Diamer. It is a settled principle of law and ethics that bail before arrest is granted to an accused only enabling him to appear before the trial court as and when required so, either through summons or through bailable warrants or through non-bailable warrants. In the case in hand, petitioner and his counsel frankly admitted that they have never appeared before the trial court. Moreover, it is also an important aspect of the case that the trial court has every power to cancel bail facility to the petitioner as and when trial court felt need of the same. The notion that trial court cannot cancel bail facility order of his equivalent or predecessor even, is very embarrassing. So, impugned order is correct in all respects.
6. Yet another important aspect of the case that clearly shows mala fides on the part of petitioner is that petitioner could conveniently approach the trial court with a fresh bail petition even after his arrest but petitioner opted to move this court against the impugned order. In my opinion, trial court can even cancel the bail facility granted by a superior court where the trial court genuinely felt that the circumstances so existed.
7. I therefore, dismiss this petition holding the same baseless, groundless and based on mala fides on the part of petitioner. This file be consigned to record.