JAHANZEB KHAN, J. Through the instant bail petition under section 497' (5) Cr.P.C, the petitioner (complainant)/State has sought cancellation of bail granted to the accused/respondent, by the learned District and Sessions Judge Gilgit, vide order dated 14-11:2023 in Bail Application No. 263/2023 in the FIR bearing No.55/2027 registered for the offence under section 389-F P.P.C., at Police Station City Gilgit.
1. The crux of the prosecution case as unfolded in the above mentioned FIR are that the accused/petitioner issued a cheque to the tune of Rs. 700,000/ - which was dishonored on presentation before the concerned Bank due to insufficient fund the account of the accused/respondent. In the wake of written complaint of the complainant the instant FIR has been lodged against the accused/respondents. After registration of FIR accused/respondent was arrested and later on the accuse/respondent was admitted to bail. After that during the trial the accused/respondent remained absent from the Court and his bail was cancelled/recalled by the trial court. The accused/respondent filed bail application before the trial court which was dismissed vide order dated 07-11-2023. Feeling aggrieved from the order of learned trial court the accused/respondent filed a Bail Petition bearing No.263/2023 before the learned Sessions Judge Gilgit, which was allowed by the learned Sessions Judge vide order dated 14-11-2023, subject to furnishing of bail bonds as described in the order. Subsequently, being dis-satisfied from the said order, the petitioner/complainant preferred to question the impugned order passed by the learned Sessions Judge, hence this petition.
2. The learned counsel for the petitioner/complainant Mr. Naeem Akhtar advocate assisted by learned Addl.AG Malik Sherbaz Khan, submitted that the order passed by the learned Sessions Judge Gilgit is illegal, erroneous and factually incorrect and tantamounts to miscarriage of justice as the learned trial Court didn't consider the case in accordance with facts and have 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. Learned counsel for the petitioner/complainant further submitted that the learned counsel for the accused/respondent has mislead the learned Court of Sessions by submitting that compromise has been affected between the parties, whereas, no compromise between the parties is under process till now. Learned DAG submitted that the accused/respondent is directly nominated in the FIR and admittedly committed a non-bailable offence by issuing a cheque which was dishonored; on presentation before the concerned bank. Learned counsel for the petitioner/complainant submitted that the accused/respondent has remained fugitive from law by hampering with the trial of the case as the accused/respondent has remained absent during the trial of the case before the learned trial court. Learned counsel for the petitioner/complainant relied on the following case laws in support of this version: "2010 PCr.LJ 1099 [Peshawar]"
"2010 PCr.L.1 1330[Peshawar]"
They, lastly submitted that the trial Court has acted the power not so vested to him under law, hence, on this sole ground the bail granted by the learned Sessions Court is liable to be cancelled/recalled.
3. Conversely the learned counsel for the accused/respondent Mr. Zulfiqar Hussain advocate ardently opposed and negated the contention of learned counsel for the petitioner/complainant and learned Addl. AG and submitted that accused/respondent was admitted to bail by the Judicial Magistrate vide order dated 02-11-2017. During this period compromise is affected between the parties outside of the court on 04-12-2017 and as per the contents of the compromise deed the matter in dispute was settled down/resolved and the petitioner/complainant was bound to withdraw the case FIR No.55/2017 and civil litigation from the court of competent jurisdiction, but later on the petitioner/complainant betrayed/deceived and did not withdraw the case from the court and did not cooperative with court in concluding the trial. Since the accused/respondent was on bail, therefore, he proceeded to Dubai in connection with a job. When the accused/petitioner was approached through sureties and carried to know about the situation, he traveled back to Pakistan and surrendered himself before the court and moved a bail application, which was refused by the learned trial court vide order dated 07-11-2023. Feeling aggrieved from the said impugned order the accused/respondent preferred a bail petition before the court of learned Sessions Judge which was allowed on merit vide order dated 14-11-2023. Learned counsel for the accused/respondent further submitted that the petitioner/complainant has not appeared before the trial court throughout the trial of the case and he/the petitioner/complainant is allegedly an absconder in a criminal case.
Coming to the grouds/contents of the instant bail cancellation petition, the learned counsel for the accused/respondent Mr. Zulfiqar Hussain advocate submitted that neither the petitioner/complainant has agitated a single ground for cancellation of bail, nor the learned counsel for the petitioner/accused Mr. Naeem Akhtar advocate discussed the grounds for the cancellation of bail, rather he levelled general allegations, which are not the grounds for the cancellation of bail. The learned counsel for the accused/respondent placed reliance on the following case laws to strengthen his arguments: "1994 S2MR 1283 [SC Pakistan)"
"2008 YLR 328 [Lahore)"
With these submissions, learned counsel for the accused/respondent prayed for dismissal of the instant Cr. Misc. petition filed by the petitioner/complainant.
4. Arguments hearkened protect contra at length advanced by the learned counsel for the parties and perused the record with their able assistance.
5. Admittedly the accused/respondent has been charged in the case FIR No.55/2017 for issuance of alleged cheque as described in the FIR and allegedly committed a non-bailable offence and for which the accused/respondent was committed to jail by the learned Judicial Magistrate. Trial of the case is at the stage of PWs, therefore, without going deep into the merits of the case, the tentative assessm ent of the available record it reveals that an agreement deed has been affected between the parties outside the court and ostensibly it appears that the petitioner/accused has deceived the complainant and has not cooperated with the investigation officer, which was a condition of the compromise deed, this fact surfaced during the course of arguments.
6. Furthermore, at this juncture, I am fortified by the aphorisms 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/grounds 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 injustice. Section 497 (5) Cr.P.C does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under Section 497 (1) Cr.P.C, the discretion is left in the Court under Section 497 (5) Cr.P.C. In the instant case, neither the accused/respondent misused the bail facility nor there is any allegation that after getting bail the accused/respondent tried to tamper with prosecution evidence and threaten the prosecution witnesses or interfere and hamper with the course of trial or there is an imminent apprehension that the accused/respondent will leave the area and will abscond.
Otherwise each case had to be seen through its facts and circumstances.
7. As a result of above discussion, I feel no hesitation to hold that the bail granted by the learned Sessions Judge Gilgit is neither patently illegal, factually incorrect nor has resulted in miscarriage of justice. No reasonable ground exists for the cancellation of bail granted to the accused/respondent. Learned counsel for the petitioner/complainant has I failed to demonstrate that the bail grating order is patently illegal, factually incorrect or erroneous, rather he has chosen to level general allegations on the accused/respondent. In the wake of the above circumstances, this Criminal Miscellaneous application merits no acceptance being devoid of any merit or legal substance. Case dismissed. However, the Trial Court is directed to conclude the trial of the instant case expeditiously. File