ALI BAIG, C.J. The instant petition under section 497(51, Cr.P.C. has been filed by the petitioner above named against the impugned order dated 06-01-2023 passed by the learned vacation Judicial Magistrate Gilgit in Bail Application No. 33/2022 and the impugned order dated 28-02-2023 passed by learned Sessions Judge Gilgit, whereby the learned vacation Judicial Magistrate Gilgit has allowed the bail application and granted bail to the present respondent No.1/accused and the learned Sessions Judge Gilgit has dismissed bail cancellation petition of respondent No.1/accused respectively.
2. Brief facts of the case necessary for disposal of the instant bail petition arc that the respondent/ accused had issued a Cheque bearing No. 08225054 of Alfallah Bank Gilgit amounting to Rs.
26,0000/- (Two lacs and sixty Thousand) to the complainant and the same was dishonored on presentation before concerned Bank. Resultantly a FIR bearing No. 137/2019 was lodged against the present respondent No. l/accused on 20-062019. After registration of the above referred FIR the SHO concerned arrested the present respondent No.1 and after completion of formal investigation committed him to judicial custody/lockup at Gilgit.
3. The present respondent/accused filed an application in the court of learned vacation Judicial Magistrate Gilgit for grant of post arrest bail which was allowed by the learned vacation Judicial Magistrate Gilgit vide order dated 06-01-2023.
4. Feeling aggrieved and dissatisfied with the order passed by the learned Judicial Magistrate Gilgit the present petitioner had preferred an application under section 497(5), Cr.P.C. before the learned Sessions Judge Gilgit for cancellation of bail granting order passed by the learned Judicial Magistrate Gilgit. The learned Sessions Judge Gilgit after hearing arguments on behalf of both the parties has dismissed the application filed by the present petitioner and maintained the order passed by the learned Judicial Magistrate Gilgit.
5. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Sessions Judge Gilgit the present petitioner has preferred the instant petition before this Court seeking cancellation of bail of the respondent No. 1/accused granted. by the learned Judicial Magistrate Gilgit.
6. The learned counsel for the petitioner argued that the orders passed by the learned Courts below are contrary to law and facts on the record of the case, hence, not maintainable and are liable to be set aside. The learned counsel for the petitioner further submitted that after availing bail facility the present respondent No.1 has misused the concession of bail facility and remained absent during proceedings before the learned Sessions Judge Gilgit. The learned counsel for the petitioner further submitted that respondent No.1/accused is directly nominated in the FIR with specific role and has repeated the offence as another FIR in like offence has been registered against him. The respondent No.1 is a habitual offender; therefore, he is not entitled for any leniency.
The offence under section 489-F, P.P.C. fully attracts to the instant case and non-bailable offence, hence, the orders passed by the learned Courts below are liable to be set aside. The learned counsel for the petitioner further submitted that respondent No. 1/accsued is using delaying tactic in smooth trial of the case which shows that accused/ respondent No.1 has misused of bail facility.
Lastly the learned counsel for the petitioner submitted that, the respondent No. 1/accused is not entitled for concession of bail hence, both the impugned orders dated 06-01-2023 and 28-02-2023 passed by courts below may be set aside and the bail granted to the respondent/accused No.1 may also be recalled/cancelled in the interest of justice.
7. The learned DAG appearing on behalf of respondent No.2/State fully supported the arguments advanced by the learned counsel for the petitioner and submitted to cancel the bail granted to respondent No.1 by the Judicial Magistrate Gilgit.
8. On the other hand the learned counsel for the respondent No.1/accused vehemently controverted the arguments advanced by the learned DAG and learned counsel for the petitioner and defended the orders passed by the learned Courts below with the contention that the orders passed by the learned Courts below are well reasoned and result of correct appreciation of law and material available on file. The learned counsel for the respondent further submitted that the grounds for cancellation of bail and grant of bail are quite different and the learned counsel for the petitioner has failed to agitate any ground for cancellation of bail. The learned counsel for the respondent No.1 further submitted that offence under section 489-F, P.P.C. does not fall within the ambit of prohibitory clause of section 497, Cr.P.C. and in like offence grant of bail is a rule and refusal is an exception, therefore, the learned Courts below have rightly granted bail to the respondent/accused. The learned counsel for the respondent/ accused further submitted that the respondent No.1/accused is residing in down country and notices were sent to him on wrong address. The learned counsel for the respondent/accused further submitted that the petitioner has lodged the instant FIR without giving notice to the respondent No.1/accused which is basic requirement of law, hence, the instant petition before this Court is not maintainable and liable to be dismissed by maintaining the orders passed by the learned Courts below to meet the ends of justice.
9. I have heard the learned counsel for the parties at length and also gone through the available record of the case with their able assistance.
10. After hearing the learned counsel for the parties it is clear that the grounds for grant bail and that of cancellation of bail granted by a competent court of law are quite different Strong and cogent reasons are required for cancellation of bail. The Hon'ble superior courts have held that bail granted to the accused by the competent court of law can only be cancelled on the following grounds. a) That if bail granting order is perverse or is disregard of settled principles regulating the grant of bail. b) That accused has tried to hamper prosecution evidence by pressurizing the PWs. c) That it is patently illegal, erroneous factually incorrect and has resulted miscarriage of justice. d) That the accused after grant of bail has misused the concession of bail. e) That there is likelihood of absconsion of the accused.
Reference in this respect is invited to reported judgments of the Hon'ble Supreme Court of Pakistan reported as 2010 SCMR 580, 2007 SCMR 482.
11. The learned counsel appearing on behalf of the petitioner/ complainant has not been able to put-forth any of the above, settled principles governing the cancellation of bail of the respondent No. 1/accused. Moreover, offence under section 489-F does not fall within the ambit of prohibitory clause of section 497(1), Cr.P.C. and grant of bail in the offence which does not fall within the ambit of prohibitory clause of section 497, Cr.P.C. is a rule and refusal is an exception. Reference is made to the reported judgment of Hon'ble apex Court of Pakistan reported as PLD 1995 SC 34.
For what has been discussed above this petition being devoid of merit is c hereby dismissed. File.