2025 PLP 1434 (YLR)

Raza Ali Khan, J.

The instant appeal has been preferred against the judgment rendered by the learned High Court on 30.01.2024, whereby the revision petition instituted by the appellant herein was dismissed.

2. The brief facts of the case are that a criminal case registered as FIR No.92/2021, under sections 302, 31, TA, 34, 342, 489-X, 489-Y, 500, and 501 of the Azad Penal Code, was lodged against the accused respondents at Police Station Fatehpur Thakyala on 15-06-2021. Following to the registration of the aforementioned case, the accused respondents sought pre-arrest bail by filing an application before the learned Sessions Judge, Kotli. The requested relief was initially granted and subsequently confirmed through a detailed judgment dated 27-09-2021. Aggrieved by the confirmation of bail, the appellant challenged the order by filing a revision petition before the High Court. However, after due deliberation and appraisal of the record, the learned High Court dismissed the revision petition through its judgment dated 30-01-2024. Dissatisfied with the outcome of the impugned order, the appellant now approached this Court, asseting that the courts below have failed to adequately consider the gravity and seriousness of the alleations levelled against the accused respondents. The appellant levelled against the accused respondents. The appellant further contended that granting of extraordinary concession of pre-arrest bail has resulted in grave miscarriage of justice.

3. Ch. M. Bashir Tabasum, the learned counsel for the appellant, submitted that the allegations outlined in the FIR against the respondents are of a most serious and egregious nature. The respondents stand accused of the heinous act of forcibly disrobing the victim, the complainant's daughter, within the basement of Read Foundation School, and subsequently capturing indecent photographs of her. Respondents Nos. 2 and 3 alleged to have aided and abetted the commission of the offence by standing guard outside the premises. The learned counsel further argued that when the victim confided in respondent No. 3 regarding the incident, she was callously admonished to remain silent. This accompanied by threats from respondents Nos. 1 and 2, who warned that the photographs would be disseminated on social media, thereby intensifying the gravity of the offence. Despite the profound nature of the allegations and the corroborative evidence on record, the respondents sought the pre-arrest bail before the learned Sessions Judge, Kotli, which was granted in flagrant disregard of established decal principles and the specific facts of the case. He emphasized that the learned High Court, while considering the revision petition filed by the appellant, similarly failed to accord due weight to this critical aspect, thereby, resulting in a manifest miscarriage of justice. The learned counsel for the appellant contended that both the judgments rendered by courts below are legally untenable and warrant intervention by this Court. Furthermore, he argued that the courts below failed to consider the stipulations set forth in the Second Schedule of the Criminal Procedure Code, which clearly distinguishes between bailable offences punishable with imprisonment of less than three years, and non-bailable offences carrying imprisonment of three to seven years, which are categorized as non-bailable. He added that the accused respondents have been charged under Section 31-TA, which prescribes a maximum sentence of three years thereby rendering the offence non-bailable under the Code. This fundamental legal tenet was regrettably overlooked by the courts below, rendering their decisions perverse and contrary to law.

4. Sardar Hamid Raza, the learned counsel for the accused-respondents, contended that the appellant has failed to present any compelling, valid, or reasonable grounds warranting interference by this Court; consequently, the impugned judgments rendered by the courts below should be affirmed. The counsel submitted that this Court, in numerous authoritative decisions, has consistently held that the criteria governing the grant of bail fundamentally differ fundamentally from those applicable to its cancellation. He argued that the appellant, in the memorandum of appeal, has not identified any substantial reason justifying intervention by this Court. Notably, there is no allegation that the accused respondents are abusing the concession of bail, nor is it asserted that the recovery of any incriminating evidence remains pending against them. In these circumstances, the impugned judgments are legally sound and should be upheld. Furthermore, the counsel submitted that the appellant has approached this Court with unclean hands, deliberately omitting material facts. The appellant's failure to disclose the details of prior bail applications, as outlined in the memorandum of appeal, constitutes a sufficient ground for the dismissal of the present appeal. Therefore, the impugned judgments are well-founded both in law and fact and should remain undisturbed. He relied on a judgment of this Court titled Zaheer Ahmed v. Ibrar Hussain [PLJ 2015 SC AJK 373]

5. Mr. Ahmed Saad Khan, the learned Assistant Advocate-General, has also adopted and endorsed the arguments put forth by the learned counsel for the appellant, thereby aligning himself with the submissions already made in support of the appeal.

6. We have carefully considered the submissions of the learned counsel for the parties and have thoroughly examined the record of the case placed before us. It is well established principle that this Court ordinarily refrains from interfering the decision of High Court regarding the grant or denial of bail. However, it is equally imperative for courts to exercise their discretion in bail matters judiciously, cautiously, and in strict adherence to the fundamental principles established in a series of judgments by this Court. The determination of whether a case necessitates a delicate balancing of various factors, including, but not limited to, the nature of the alleged offence, the severity of the punishment, and a prima facie evaluation of the involvement of the accused. While no rigid or inflexible formula governs the adjudication of bail applications, courts are not required to detail a examination of the evidence to establish the accused guilt beyond a reasonable doubt at this stage. Notably, the grant of bail can be reconsidered or even cancelled if the order passed by the High Court is found to be perverse or legally unsound. Over the time, this Court has articulated key consideration for asserting bail applications, which include:- i) "Whether there exits a prima-facie or reasonable ground to believe that the accused has committed the alleged offence; ii) the nature and gravity of the accusation; iii) the severity of the potential punishment upon conviction; iv) the likelihood of the accused of absconding or evading the judicial process if released on bail; v) Likelihood of repetition of offence by accused; vi) Apprehension of the witnesses being influenced; and vii) Danger, of course of justice being thwarted by grant of bail." 9. present Now, it is imperative to determine whether the case aligns with the parameters and circumstances outlined above. As per FIR, the respondents are accused of forcibly disrobing the victim in the basement of Read Foundation School and taking explicit photographs of her, while respondents No. 2 acted as lookouts outside. When the victim confided accused-respondent No. 3 about the incident, she was instructed to remained silent, and accused-respondent No. 1 and 2 subsequently threatened to disseminate her photographs on social media. Prima facie, the allegations are of an exceptionally grave and heinous nature, and there are reasonable grounds to believe that the respondents have committed the alleged offences against them. All the accused have been specifically named in the FIR, assigning distinct and specific roles to each thereby establishing their active involvement in the offence. Based on the facts and evidence presented, it can reasonably inferred that accused-respondent No. 1 has committed an offence punishable by death, imprisonment for life, or imprisonment for a term of up to ten years. In such cases, the provisions of Section 497(1) of the Criminal Procedure Code are unequivocally applicable, precluding the grant of bail. Consequently, the benefit of Section 497(2) Cr.P.C, which permits in non-bailable offences wherein further inquiry is required, cannot be extended in this case, as there is no ambiguity regarding the role of the accused. Section 497(2) of the Criminal Procedure Code stipulates that if at any stage of the investigation, inquiry, or trial, it appears to the Officer or Court that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but sufficient grounds exist for further inquiry into his guilt, the accused may be released on bail or on the execution of a bond without sureties. However, in the present case, such an eventuality does not arise, and the matter does not fall within the ambit of Section 497(2), Cr.P.C. In this regard we are guided by the judgment of this Court in the case reported as Muhammad Younas v. Zameer Hussain Shah1, wherein, it has been held that: "The way in which subsection (2) of section 497, Cr.P.C, is being applied, it makes the provision contained in subsection (1) of section 497, Cr.P.C, redundant, nugatory and inoperative. It is specifically provided in subsection (1) of section 497, Cr.P.C, that when any accused of any non-bailable offence, is arrested, or detained without warrant by an Officer Incharge of Police Station or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. It may be observed here that no Court is empowered to release an accused on bail on the ground of further inquiry without first coming to the conclusion that there are no reasonable grounds for believing that the accused has not committed non-bailable offence. Reliance can be placed on a case reported as Asjad Mahmood and another v. The State and another [2014 SCR 173], wherein, this Court observed as under: '

10. Section 497 Cr.P.C postulates that when any person accused of non-bailable offence, is arrested or detained without warrants, the Court may release him on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment of life or ten years."

10. It is a well-established principle that the grant of bail depends on the specific facts and circumstances of each case as the factual contexts invariably varies from one case to another. The nature of the offence is the pivotal factor in deciding whether bail should be granted or denied. However, this determination ultimately hinges on the unique factual matrix of individual case. This Court generally refrains from intervening in bail matters, affording discretion to the Court of competent jurisdiction in evaluating the guilt of the accused. Intervention by this Court is typically reserved for exceptional circumstances, where it is found that the competent Court has exercised its discretion in an arbitrary or unreasonable or unjust manner, in such instances this Court may steps into rectify the resulting miscarriage of justice and recall the impugned order. In the latest case titled Khaqan v. State,2 this Court while dealing with the identical matter, has observed as under: "

5. It has been the practice of this Court not to interfere in bail matters ordinarily leaving them to the discretion of the Court in quailing the guilt of the accused. Only in exceptional cases where discretion has been found to have been exercised arbitrarily, perversely, or contrary to the settled principle of law, this Court does not hesitate to interfere in the wrong exercise of discretion in the interest of justice."

11. In light of the above detailed discussion, we are of the considered view that both the learned High Court and the trial Court have committed a grave illegality in granting extraordinary concession of bail before arrest to the accused-respondents. Consequently, the orders granting bail are hereby recalled, and the judgments of the lower Courts are set aside. The accused-respondents shall be taken into custody forthwith. This appeal is accordingly allowed in the terms outlined above.

12. As per the statement of the learned Assistant Advocate-General, the trial has commenced, and nature and gravity of the offences demands its prompt disposal. The trial Court is directed to conclude the trial and deliver its judgment within six months from the date of communication of this order, without unnecessary delay. The accused-respondents upon arrest may apply for bail in accordance with law if fresh grounds become available. The detailed reasons provided here form the basis for the short order announced in the Court, allowing the appeal and recalling the impugned judgments. JK/22/SC(AJ&K). Appeal allowed.