JAHANZEB KHAN, J. This bail application has arisen out of the impugned order dated 07.08.2023 passed by the learned Sessions Judge Gilgit in Bail Application No.160/2023, filed by the accused/respondent for grant of post arrest bail under section 497 Cr.P.C.
2. Succinctly narrated facts of the case are that accused Hafeezullah, Ataullah and Fidaullah committed muder of one Khosh Amadeen by opening fires on him and a bystander also got injured due to the said firing. It is further alleged in the FIR that said occurrence took place on instigation/abetment of accused. Abdul Khaliq son of Abdul Waheed, Naseebullah and Abdul Qadir sons of Abdul Majeed and Raza Khan son of Uma Syed resident of Chilas.
3. The learned counsel for the petitioner/complainant contended that the impugned order dated 07.08.2023 passed by the learned Sessions Judge Gilgit is illegal, erroneous, factually incorrect, perverse and tantamount to miscarriage of justice. The learned trial Court didn't consider the case in accordance with facts and has failed to appreciate the law regarding grant of bail in non- bailable offences and the provision of section 497 Cr.P.C has been misinterpreted while granting bail to the accused/respondent No. 1. Learned counsel for the petitioner/complainant submitted that the accused/respondent No.1 was present near the place of occurrence and sufficient evidence is available to connect the accused/respondent No.1 with the commission of offence but the same was not given any weightage by the learned trial Court while passing the impugned order. He argued further that the offence 302 P.P.C. entails capital punishment and falls within the ambit of prohibitory clause of Section 497 Cr.P.C, whereas section 324 P.P.C. entails 10 years punishment and falls within the ambit of prohibitory clause of section 497 Cr.P.C. Sections 109 and 114 P.P.C. are fully attracted in the instant case. He further submitted that there is grave apprehension of tempering of prosecution evidence as well as absconsion of the accused/respondent No.1 if bail facility is not cancelled. Learned counsel for the petitioner/complainant argued that two independent witnesses have seen the accused/respondent No.1 near the place of occurrence. Learned counsel for the petitioner/complainant submitted that CDR (call detail record) and USB data is also available, which connects the accused/respondent No.1 with the offence. Furthermore, accused/respondent No.1 is close relative of the deceased, notwithstanding taking the accused/respondent No.1 to the Hospital he (accused/respondent No.1) has fled away from the place of occurrence and remained absconder which speaks volume about his motive and the criminal and common intention of the accused/respondent No. 1 with the accused nominated in the FIR and accused/respondent No. 1 is equally responsible for commission of murder of the deceased, hence bail facilit granted to the accused/respondent No. 1 may kindly cancelled. With these submissions he finally prayed for acceptance of the instant criminal misc. petition by cancelling the bail facility extended to the accused/respondent No. 1 by the learned Sessions Judge Gilgit, to meet the ends of justice.
Learned AAG is also of the view that learned Sessions Judge has passed the impugned order in a hasty and rushed manner leading to miscarriage of justice. Learned AAG relied on the contention of the learned counsel for the petitioner/complainant. He further submitted that the presence of accused/respondent No.1 at the place of occurrence and fleeing away from the scene of crime after the occurrence clearly shows the criminal intention of the accused/respondent No. 1. He too prayed for the cancellation of the bail extended to the accused/respondent No.1 in the larger interest and dispensation of justice.
4. Conversely, the learned counsel for the accused/respondent No.1 opposed the contention of learned counsel for the petitioner/complainant and submitted that the learned Sessions Judge has rightly and aptly extended the privilege of bail to the accused/respondent No. 1. Learned counsel for the accused/respondent No.1 further submitted that the accused is not directly nominated in the FIR and he (accused/respondent No. 1) has malafidely been implicated in the instant case for their ulterior motives on the ground that the accused/respondent No.1 was present at the time of occurrence. No specific role has been attributed to the accused/respondent No.1 in the FIR and no recovery has been made from the accused/respondent No. 1. Learned counsel for the accused/respondent No.1 submitted that at bail stage tentative assessment is examined, not the deeper appreciation of the case is required. He further submitted that neither of the grounds for cancellation of bail is attracted in the instant case, since there is neither any chance of absconsion of the accused/respondent No.1 nor tempering of prosecution evidence is endanger and there is no apprehension of repetition of any offence by the accused/respondent No.1. Regarding offence under sections 114 and 109 P.P.C. learned counsel for the accused/respondent No.1 submitted that these two sections do not attract in the instant case rather have erroneously been inserted by the police and relied on a Judgment passed by the Honorable Supreme Appellate Court GB bearing Criminal Appeal No. 04/2023 In CPLA No.06/23 and 2011 SCMR 1543 Supreme Court of Pakistan].
He further submitted that accused/respondent No. 1 is no more required for further investigation since the investigation is completed and finally prayed that the instant criminal miscellaneous petition is not maintainable, hence may very kindly be dismissed.
5. I have hearkened the arguments pro et contra advanced by the learned counsel for the parties and perused FIR as well as record of the Case
6. Tentative assessm ent of the record. it transpires that the name of the accused/respondent No. 1 is nowhere found in the contents of FIR and neither he is abettor nor instigator. No o single evidence is available on record to connect the accused/respondent No.1 with the alleged offence. It evinced from the story of prosecution that neither the accused/respondent No.1 is directly nominated in the FIR nor any specific role or injury stands attributed to the accused/respondent No.1 and admittedly no weapon of offence has been recovered from the custody of the accused/respondent No.1 during the course of investigation. The I.O of the case has found that accused/respondent was merely present at the scene of crime at the relevant time and that he was neither armed nor he had caused injury to any person. It appears that the petitioner/complainant has implicated the accused/respondent No.1 in the instant case on account of relationship of accused/respondent with the deceased and the principal accused. The accused/respondent No.1 was not present at the time and place of alleged occurrence and insertion of sections 109/114 P.P.C. tends to drag the accused/respondent No.1 with mala fide intention in the litigation. The tentative assessment prima facie does not establish the involvement of accused/respondent No.1 in the commission of offence in furtherance of common intention. The learned counsel for the petitioner/complainant has failed to point out any illegality in the bail order though he argued that the order was patently illegal, erroneous, factually incorrect and perverse. He further failed to point out that the accused/respondent No.1 has misused the privilege of bail. He simply submitted that the accused/respondent No.1 is very influential person, but he failed to point out any single instance to substantiate the allegation that the accused/respondent No.1 ever misused the privilege of bail.
The only accusation/allegation levelled against the present accused/respondent was the alleged presence of accused/respondent near the scene of occurrence at the time of alleged occurrence.
Mere presence of accused/respondent near the venue of occurrence at the relevant time without attribution of any role in connection of the alleged occurrence, is no convincing and appealable ground for cancellation of bail which can attract any offence under any section of P.P.C. and can be acceptable any person of sagacious mind. Furthermore, the cancellation of bail is harsh order because it interferes with liberty of an individual hence it must not be resorted to lightly and power to take back in custody is to he exercised with due care and circumspection. I am also fortified by the dictums laid down by the Honourable Supreme Court reported in 2009 SCMR 786, 2004 SCMR 1160, 2005 SCMR 1539, 1994 SCMR 1064 and 2004 SCMR 231 in which it was held that considerations for cancellation of bail are quite distinct from the considerations for grant of bail. Once bail has been granted by a competent court of law, strong and exceptional grounds are required for cancelling the same. It has to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice in the instant case neither of the grounds for cancellation of bail are attracted.
7. For what has been discussed above and on the basis of tentative assessment of the available record, no case is made out by the counsel for the petitioner/complainant for cancellation of bail granted by the learned Sessions Judge Gilgit, thus the instant bail cancellation petition filed by the petitioner/Complainant being bereft of any merit is hereby dismissed. The above observations are tentative in nature and only for the purpose of bail and shall not affect upon the merit of the case.
File.