State Versus Arif Hussain

Order

Ali Baig, C.J .--- The instant petition under section 497(5) Cr.P.C has been filed by the petitioners against the impugned judgment/order dated 19-10-2024 passed by learned Anti-Terrorism Court No.1 Gilgit in Bail Application No. 23/2024, whereby the learned Anti Terrorism Court No.1 Gilgit has allowed/confirmed the pre- arrest bail in favour of the present respondent/accused.

2. Precisely, stated the allegation against the respondent as disclosed in the FIR is that the complainant namely Ansar Hussain son of Ghulam Hussain resident of Sakwar District Gilgit has lodged a written complaint to the Station House Officer, Police Station Jutial Gilgit by contending that on 09-04-2024 at about 03:00 am severe explosion occurred in his house and at that time no family members were present at his house. He was on main road to bring some edible items for Sehri and then he immediately rushed towards his house, when he reached to his house, he saw Iftikhar Hussain S/o Hussain Asghar, Syed Ibrar Hussain S/o Syed Fida Hussain came out from of his house and were running towards the road and fled away in a car parked on the road. When complainant entered in his house he saw roof of house was collapsed as a result of explosion.

3. It is pertinent to mention here that the present respondent/accused had filed a petition under section 498, Cr.P.C before the learned Anti-Terrorism Court No.1 Gilgit for grant of ad-interim pre-arrest bail. Initially the learned Trial Court/ learned Anti-Terrorism Court No.1 Gilgit had allowed the ad-interim pre-arrest bail to the respondent /accused and later on after hearing arguments on behalf of both the parties the learned Anti-Terrorism Court No.1 Gilgit has confirmed the ad-interim pre-arrest bail already granted to the accused/respondent vide order dated 19-10-2024.

4. Feeling aggrieved and dissatisfied with the impugned judgment/ order passed by learned trial court/Anti-Terrorism Court No.1 Gilgit, the present petitioners have filed the instant petition under section 497(5) Cr.P.C before this Court seeking cancellation of bail facility extended to the respondent/ accused.

5. The learned Dy.A.G argued that the order/judgment passed by the learned trial court is against the law and the facts on the record of the case, hence, liable to be set aside. The learned Dy.A.G further submitted that the accused/ respondent is directly nominated in the FIR. The offences mentioned in the FIR are not bailable and fall within the ambit of prohibitory clause of section 497, Cr.P.C. The learned Dy.A.G further submitted that the order/judgment passed by learned trial court is result of misreading and non-reading of material available on the record of the case. The learned Dy.A.G further submitted that the order passed by the learned trial Court/ Judge Anti-Terrorism Court No.1 Gilgit is illegal, perverse, fanciful, without merit and arbitrary, hence, liable to be set aside. The learned Dy.A.G further submitted that accused/respondent is misusing the bail facility extended to him and try to tamper with the PWs. The learned DAG further submitted that grounds for grant a pre-arrest are different from the grounds of post arrest bail and the learned learned Anti-Terrorism Court No.1 Gilgit has not taken the view in accordance with law, hence, the judgment/order passed by the learned Anti-Terrorism Court No.1 Gilgit is liabel to be set aside. The learned Dy.A.G lastly submitted that the instant petition may be accepted and the accused/ respondent may be committed to judicial custody by cancelling his bail facility to meet the ends of justice.

6. On the other hand the learned counsel for the accused / respondent vehemently opposed the contentions raised by the learned counsel for the petitioners and submitted that the respondent/ accused is innocent and has falsely been implicated in the case by the police in league with the complainant with ulterior motive. The learned counsel for the accused / respondent further submitted that no any incriminating material has been recovered from the present respondent/ accused and the co- accused of the present respondent has already been granted pre-arrest bail by this Hon'ble Court, hence, rule of consistency applies to the case of the present respondent/accused. The learned counsel for the accused /respondent further submitted that the present accused has been charged for the offence under section 109, P.P.C. hence, the case of the present respondent/accused requires further inquiry. The learned counsel for the accused /respondent further submitted that the petitioners have failed to establish the grounds as required under law for cancellation of bail. The learned counsel for the accused /respondent further submitted that the judgment/ order passed by learned trial court is result of correct appreciation of law and material available on file and petition in hand has been filed with malafide intention. The learned counsel for the accused / respondent further submitted the order passed by the learned trial court be maintained by dismissing the instant petition to meet the ends of justice.

7. We have heard the learned counsel for the parties at a considerable length and have minutely gone through the available police record with their able assistance.

8. From perusal of available record it transpires that the present accused/respondent was admittedly not present at the place of occurrence at the time of occurrence. The complainant has involved the respondent/accused for the offence under section 109, P.P.C. alleging that the occurrence was taken place at the behest of the present petitioner, but the prosecution has not been able to collect any evidence regarding abetment of the respondent/accused in the occurrence. Principal accused who were directly nominated in the FIR namely Iftikhar Hussain and Ibrar Hussain have been admitted to pre-arrest bail by this Court vide bail order dated 21-10-2024, hence rule of consistency applies to the case of the respondent/accused. Moreover, superior Courts of the Country from time to time have enunciated/settled certain principles governing cancellation of bail. Those are enumerated as under:- i. If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice. ii. That the accused has misused the concession of bail in any manner. iii. That the accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witness. iv. There is likelihood of absconsion of the accused beyond the jurisdiction of the Court. v. That the accused has attempted to interfere with the smooth course of investigation. vi. The accused has misused his liberty while indulging into similar offence. vii. Some fresh facts and material has been collected during the course of investigation with tends to establish guilty of the accused.

9. The aforementioned seven conditions/grounds are lacking in the case of the petitioner. We have observed that the learned trial Court has exercised the jurisdiction on the basis of material and order of pre-arrest bail granted to the present respondent by the learned trial Court is justified.

10. For the foregoing reasons this bail cancellation petition being devoid of merit is hereby dismissed and the impugned order dated 19-10-2024, passed by the learned trial Court is maintained. File.

JK/8/GB Petition dismissed.