Haji GHULAM HUSSAIN Versus MUZAMMIL HUSSAIN

ORDER

ALI BAIG, J.--- Through the instant petition filed under section 497(5), Cr.P.C. the petitioner/complainant seeks cancellation of bail granted by the learned Sessions Judge, Gilgit in favour of the respondents vide bail order dated 4.7.2018.

2. Succinctly allegations against the present respondents/accused as disclosed in the FIR are that on 17-5-2018 the respondents/accused entered into the house of the petitioner and has committed an offence of house trespass and they have assaulted the family members of the complainant. The accused/ respondents have also demolished the boundary wall of the house of the complainant.

3. The learned counsel appearing on behalf of petitioner/complainant contended that the learned Sessions Judge Gilgit has confirmed the pre-arrest bail of the respondents/accused without hearing the counsel for the complainant. The learned counsel for the petitioner/ complainant further argued that the respondents have attacked on the house of complainant and have demolished the wall and stairs of the house of complainant, hence the respondents/ accused are aggressors and the learned Sessions Judge Gilgit has illegally granted pre-arrest bail in favour of respondents/ accused which may be cancelled in the interest of justice. The learned counsel for the complainant/ petitioner further argued that the respondents have assaulted/attacked the house of the petitioner/complainant twice and as such the respondents are habitual offenders".

4. On the other hand learned counsel for the respondents controverted the arguments advanced by the learned counsel for the petitioner by contending that present respondents have also got registered a criminal case against the present petitioner/complainant, as such the present petitioner is also in that case and the learned Sessions Judge Gilgit has also granted bail before arrest in favour petitioner vide bail order dated 04.7.2018. The learned counsel for the respondents/accused further argued that respondent No.3 namely Ashiq Hussain is Headmaster of Govt. Boys Middle School Old Polo Ground Gilgit and at the time of alleged occurrence he was on duty at the aforesaid school he was not present at place of occurrence and the complainant has falsely implicated him in this case. The learned counsel for the respondents further argued that sections 147, 337-A, 427 are bailable and section 452 Cr.P.C. does not fall within the ambit of prohibitory clause of section 497(1) Cr.P.C., therefore, the learned Sessions Judge Gilgit has rightly confirmed the pre-arrest bail in favour of respondents which may be maintained.

5. I have carefully considered the submissions made by the learned counsel for the parties and perused the available record.

6. From perusal of record it shows that the parties have civil dispute regarding ownership of a piece of land due to which the quarrel was taken place between the parties. Cross FIRs have been registered against each other by the both parties and the learned Sessions Judge Gilgit has allowed pre-arrest bail in favour of both parties vide order dated 04.7.2018. It will be determined at trial by the trial court who is aggressor and who is aggressed upon, hence the case of the respondents/ accused requires further inquiry and the learned Sessions Judge has rightly granted pre-arrest bail in favour of the respondents/accused. Moreover, all sections reflected in the FIR are bail able expect section 452, P.P.C. which also does not fall within the ambit of prohibitory clause of section 497(1) Cr.P.C.

7. Furthermore, considerations for grant and cancellation of bail are different and that after granting of bail strong grounds have to be made out to justify cancellation of bail. In the case titled "Syed Amanullah Shah v. The State and other" PLD 1996 SC 241, it has been held by the Hon'ble Supreme Court that:--

"Once bail is granted by a court of competent jurisdiction, then very strong and exceptional grounds would be required for cancelling the same. Provisions of section of 497(5), Cr.P.C. are not punitive."

8. In these circumstances, the action of the learned Sessions Judge Gilgit in granting pre-arrest bail to the respondents is completely justifiable and in accordance with law.

9. For what has been discussed above, this petition filed under section 497(5) Cr.P.C. by the complainant has no force which is dismissed. File

MQ/205/GB Application dismissed.