ALI BAIG, C.J. The petitioner/complainant namely Motabar Khan has filed the instant petition under section 497(5) Cr.P.C for cancellation of bail granted to the respondent/accused namely Zaheer Abbas by the learned Sessions Judge, Gilgit, vide order dated 21.10.2023 passed in B.A No.289/2023.
2. Succinctly the allegations against the respondent/accused as reflected in the FIR are that on 04.06.2023, at about 0400 hours, the present respondent/accused along with other co-accused has committed murder of one Zeeshan Abbas and injured Mst. Sana Zahra by opening fires with fire arms at the house of one Imtiaz situated at Sakwar, Gilgit.
3. On written application of the complainant, the local police of PS Jutial have chalked FIR No. 89/2023, dated 04.06.2023, under sections 302, 324, 337-A(1), 337- F(v), .109, 34 P.P.C. The present respondent/accused after his arrest had filed an application under section 497 Cr.P.C for grant of bail before the Court of learned Sessions Judge, Gilgit. The learned Sessions Judge, Gilgit vide order dated 21.10.2023 has allowed bail to the respondent/accused.
4. Feeling aggrieved and dissatisfied with the impugned order of the learned Sessions Judge, Gilgit dated 21.10.2023, the complainant/petitioner has filed the instant petition under section 497(5)
Cr.P.C before this Court for cancellation of hail.
5. The learned counsel appearing on behalf of the petitioner/complainant argued that the respondent/accused is directly nominated in the promptly lodged FIR. The learned counsel for the petitioner/complainant further argued that the sections reflected in the FIR are not bailable and also fall within the ambit of prohibitory clause of section 497 Cr.P.C, as such the bail granted to the respondent/accused is liable to be re-called. The learned counsel for the petitioner/complainant further argued that the motive behind the occurrence has been disclosed in the FIR. The learned counsel for the petitioner/complainant further argued that the eye-witnesses have established the presence of the respondent/accused at the place of occurrence alongwith other co-accused during the commission of offence in their statements recorded by the police under section 161 Cr.P.C. The learned counsel for the petitioner/complainant further argued that the occurrence has been witnessed by impartial PWs and the PWs have narrated the natural account of the occurrence by fully implicating the present respondent/accused. The learned counsel for the petitioner/complainant further argued that the bail application of co-accused Muntazir Abbas has been dismissed by the learned trial Court. The learned counsel for the petitioner/complainant further argued that there is apprehension of tampering with prosecution evidence by the respondent/accused if the bail of the respondent/accused is not cancelled. The learned counsel for the petitioner/complainant further argued that the learned Session's Judge, Gilgit has exercised his authority in an injudicious manner in the instant matter by granting bail to the respondent/accused in an offence which provides capital punishment, hence the impugned order of the learned Sessions Judge. Gilgit is not based on merit and the same is liable to be set aside by recalling bail facility of the respondent/accused in the interest of justice.
6. Conversely, the learned counsel for the respondent/accused strongly opposed this bail cancellation petition by contending that the learned Sessions Judge, Gilgit has rightly admitted bail to the petitioner on merit as the respondent/accused was charged under section 109 P.P.C. and the role of the respondent/accused is different from his co-accused. The learned counsel for the respondent/accused further contended that the respondent/accused has never misused the bail facility. The learned counsel for the respondent/accused further contended that the petitioner has failed to agitate any ground of bail cancellation in his arguments as well as in his petition. The grounds taken by the petitioner/complainant do not meet the requirements of bail cancellation, hence, the instant petition is not maintainable and liable to be dismissed. The learned counsel for the respondent/accused further contended that the important witness of the occurrence is Mst.
Sana Zahra and she has not uttered a single word against the present respondent/accused in his statement recorded under section 164 Cr.P.C by the learned Judicial Magistrate Gilgit. The learned counsel for the respondent/accused further contended that the respondent/accused has been booked in the FIR under section 109 P.P.C. but there is no evidence on record to connect the respondent/accused with the commission of alleged offence. The learned counsel for the respondent/accused have relied upon judgments of superior Courts reported as 2004 SCMR 231, 2003 YLR 2910 and 2023 YLR 2660.
7. The learned Dy. Advocate General appearing on behalf of the State supported the version of petitioner/complainant and relied upon arguments on the learned counsel for the petitioner/complainant.
8. I have heard arguments advanced by the learned counsel for the parties and perused the available record of the case with their able assistance.
9. From perusal of contents of challan/final police report it transpires that the police, has involved the present respondent No. 1/accused in the offence of abetment under section 109 P.P.C., but no direct evidence against the present respondent No. 1/accused is available on the record. PW namely Mst. Sana Zahra is eye-witness of the occurrence and she has also sustained injury in the occurrence. The above named PW has not uttered a single word against the present respondent No.1/accused in her statement recorded under section 164 Cr.P.C by the learned Judicial Magistrate Gilgit, thus the learned trial Court has rightly granted bail in favour of the present respondent No.1/accused, vide bail order dated 21.10.2013.
10. Moreover, the Hon'ble superior Courts have enunciated/laid down the following principles for cancellation of bail:
(i) That if bail graving order is patently illegal, erroneous, factually incorrect and has result of miscarriage of justice.
(ii) That the accused has misused the concession of bail.
(iii) That the accused has tried to tamper/hamper prosecution witnesses.
(iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of the Court.
(v) That the accused has misused his liberty while involving into similar offence.
(vi) That some fresh facts and material has been collected during the course of investigation which tends to establish the guilt of the accused.
When confronted the learned counsel for the complainant to show from the record as to whether the respondent No.1/accused has violated any of the aforesaid conditions on the basis of which his bail can be cancelled, he had not answer.
11. For the foregoing reasons, the instant petition filed under section 497(5) Cr.P.C, being devoid of merit, is hereby dismissed.
12. Before parting with this judgment/order it is clarified that the observations made herein above are tentative in nature and the learned trial Court may not be influenced and it shall decide the case strictly in accordance with law and merit of case. File