State Versus Sher Alam
Order
Ali baig, C. J.--- The instant petition under section 497(5) Cr.P.C has been filed by the petitioner /complainant against the impugned judgment/order dated 04-10-2025 passed by learned Sessions Judge District Hunza, whereby the learned Sessions Judge District Hunza has confirmed the ad-interim pre-arrest bail granted to the respondent/accused earlier vide order dated 04-10-2025.
1. Precisely, stated the allegation against the respondents/accused as disclosed in the FIR is that the complainant namely Ghulam Haider son of Ali Madad resident of Nasir Abad District Hunza has lodged a written complaint to the Station House Officer, Police Station Nasir Abad District Hunza stating therein that the present respondent/accused and his co-accused namely Azmina and Gul Zadi had abused and used filthy language against the deceased and threaten to kill him. Due to which the deceased namely Waqar Haider has committed suicide by opening fire with 30 bore pistol.
2. After receipt of the complaint the concerned SHO has registered the above mentioned FIR, started investigation of the case, arrested the co-accused of the present petitioner and the present petitioner had obtained pre- arrest bail. The learned District and Sessions Judge Hunza after hearing the arguments of the parties has confirmed the ad-interim pre- arrest bail granted to the present petitioner vide order dated 04-10-2025.
3. Feeling aggrieved and dissatisfied with the impugned judgment/ order passed by learned District and Sessions Judge Hunza the present petitioner/complainant has filed the instant petition under section 497 (5) Cr.P.C before this Court seeking cancellation of bail facility extended to the respondent/ accused.
4. The learned Dy.A.G assisted by learned counsel for the complainant argued that the order passed by the learned District and Sessions Judge Hunza is against the law and the facts on the record of the case, hence, liable to be set aside. The learned Dy.A.G and learned counsel for the complainant further submitted that the accused/respondent is directly nominated in the FIR with specific role. The learned Dy.A.G and learned counsel for the complainant further submitted that grounds for grant of post arrest bail and pre-arrest bail are quite different and the learned District and Sessions Judge, Hunza has ignored this very aspect and confirmed the interim pre-arrest bail, hence, the same is liable to be set aside. The learned Dy.A.G and learned counsel for the complainant further submitted that the pre-arrest bail is a extra ordinary relief which can be extended only if the accused/petitioner found innocent and his involvement seems to be with mala fide intention. The learned Dy.A.G and learned counsel for the complainant further submitted that the present respondent/accused is directly charged with the crime, hence, he is not entitled for concession of pre-arrest bail. The offence under section 322 P.P.C is not bailable. The learned Dy.A.G and learned counsel for the complainant further submitted that the order passed by learned District And Sessions Judge Hunza is result of misreading and non-reading of material available on the record of the case, hence, liable to be set aside. The learned Dy.A.G and learned counsel for the complainant further submitted that the order passed by the learned District and Sessions Judge, Hunza is illegal and arbitrary, hence, liable to be set aside. The learned Dy.A.G and learned counsel for the complainant further submitted that the learned District and Sessions Judge Hunza has failed to apply his judicious mind and drawn wrong inferences hence, the order passed by the learned District Judge Hunza is liable to be set aside. The learned Dy.A.G and learned counsel for the complainant lastly submitted that the instant petition may be accepted and the accused/ respondent may be committed to judicial custody by cancelling his pre-arrest bail facility to meet the ends of justice. In support of his arguments, the learned counsel for the petitioner/complainant has relied upon judgments of superior Courts reported as PLD 1983 SC 82, PLD 1994 SC 65, PLD 2009 Sc 427, PLD 2020 SC 293, 2007 SCMR 482, 2023 YLR 1582 Sindh and 2010 SCMR 1171.
5. On the other hand the learned counsel for the accused / respondent controverted the contentions raised by the learned counsel for the petitioner/complainant and submitted that the respondent/ accused is innocent and have falsely been implicated in this case by the police in league with the complainant with mala fide intention. 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 have already been granted bail by trial Court and this Hon'ble Court has also dismissed the bail cancellation application of the complainant/State, hence, rule of consistency applies to the case of the present respondent/accused. The learned counsel for the accused /respondent further submitted that there is one month and 02 days delay in lodging of FIR which creates serious doubts in the case. The learned counsel for the accused /respondent further submitted that no punishment of imprisonment has been provided for the offence under section 322 P.P.C while rest of the offences are bailable and do not fall under the prohibitory clause of 497 Cr.P.C hence, the case of the present respondent/accused requires further inquiry. The learned counsel for the accused / respondent further submitted that the 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 respondent/ accused further submitted that the petitioner/complainant has failed to agitate any grounds which were required under law for cancellation of bail facility already extended to an accused on merit, hence, the instant petition is not maintainable in the eye of law. The learned counsel for the accused /respondent further submitted the order passed by the learned trial court may be maintained by dismissing the instant petition to meet the ends of justice. In support of his arguments, the learned counsel for the respondent/accused has relied upon judgments of superior Courts reported as PLD 1983 SC 82, 1981 SCMR 1139 and 2024 YLR 1562 Sindh.
6. I have heard the learned counsel for the parties at a considerable length and have minutely gone through the available record with their able assistance.
7. From perusal of record it transpires that there is one month and two days unexplained delay in lodging of FIR as the occurrence was taken place on 08-7-2025 and complainant has submitted application for lodging of FIR against the present respondent/accused and his co-accused on 10-08-2025. The complainant has remained silent for about more than one month of the occurrence. This conduct of complainant prima-facie seems that the lodging of FIR against the present respondent and his co-accused is result of afterthought as such the case of the present respondent requires further inquiry. Moreover, offence under section 322 P.P.C though is non bailable but is not punishable with any period of imprisonment except payment of Diyat and eventually if the present respondent/accused is convicted under section 322 P.P.C he shall pay the Diyat amount to the legal heirs of deceased.
8. It is settled principle of law that where criminal liability of an accused of an offence is Diayat only, the offence shall not fall within the ambit of prohibitory clause of section 497 Cr.P.C. Remaining offences under sections 500 and 506 P.P.C as reflected in the FIR are bailable. Two co-accused of the present respondent have been released on bail by the learned trial Court/Sessions Judge Nagar hence, rule of consistency applies to the case of the respondent/accused. Furthermore, the Hon'ble Supreme Court of Pakistan has enunciated the following principles for cancellation of bail in its reported judgment reported as 2020 SCMR 1115;-
1. The bail granting order was patently illegal, erroneous, factually incorrect and had resulted into miscarriage of justice.
2. The accused had misused the concession of bail in any manner.
3. The accused had tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses.
4. There was likelihood of absconsion of the accused beyond the jurisdiction of court.
5. The accused had attempted to interfere with the smooth course of investigation.
6. The accused misused his liberty while indulging into a similar offence.
7. Some fresh facts and material had been collected during the course of investigation with tents to establish guilt of the.
When confronted, the learned counsel for the complainant to show from the record as to whether the respondent/accused had violated any of the above said conditions/principles on the basis of which his bail can be cancelled, he had no answer.
9. Thus I am of the considered view that the petition filed under section 497 (5) Cr.P.C for cancellation bail of respondent/accused is not maintainable.
10. Keeping in view the above facts and circumstances of the case and authoritative case laws referred above, this petition being bereft of merit is hereby dismissed. However, before parting with this order, it has been made clear that the observations made herein above are tentative in nature and it has no bearing during the course of trial before the learned trial Court. File.
JK/43/GB Petition dismissed.