2025 P Cr (PLP)

Ali Baig, C.J.

The petitioner/complainant has filed the instant petition under section 497(5), Cr.P.C. for cancellation of bail allowed to the present respondent No.1 by the learned Sessions Judge, Gilgit vide order dated 18-05-2024.

2. A brief sketch of the case as per record is that on 03.10.2023 the complainant/present petitioner namely Iqbal Azam filed a written complaint before SHO Police Station Jutial stating therein that in a business transaction the accused/present respondent No.1 had handed over a cheque amounting to Rs.30,00,000/- (thirty lac) of Khushal Bank Jutial Branch Gilgit to him. On presentation of the same before the authorities of concerned bank, the said cheque has been dishonoured due to insufficient balance in the account of the accused and after issuance of a memo returned the said cheque. Accordingly, on written application of complainant, FIR No.191/2023 was registered against the accused/ present respondent No.1 under section 489-F, P.P.C. at Police Station Jutial District Gilgit.

3. It is pertinent to mention here that the present respondent No.1/accused had filed an application under section 498, Cr.P.C. before the learned Sessions Judge, Gilgit for grant of pre-arrest bail. The learned Sessions Judge, Gilgit initially allowed ad-interim pre-arrest bail to the present respondent No.1 and after hearing arguments on behalf of both the parties, the learned Sessions Judge, Gilgit has confirmed the interim pre-arrest bail granted to the present respondent No.1/accused vide judgment/ order dated 18-05-2024.

4. Feeling aggrieved and dissatisfied with the impugned order of the learned Sessions Judge, Gilgit dated 18.05.2024, the Complainant/present petitioner has filed Cr. Misc. No. 161/2024 for cancellation of bail of the accused/present respondent No. 1.

5. The learned counsel for the complainant/present petitioner argued that the accused/respondent has willfully issued the impugned cheque of huge amount and has committed financial murder of the complainant, but the learned Sessions Judge, Gilgit has totally ignored all these facts, hence the order of the learned Sessions Judge, Gilgit is patently illegal and against the facts of the case. The learned counsel for the complainant further argued that the learned Sessions Judge Gilgit has wrongly exercised his discretion in the instant case, hence the bail concession extended to the accused may be recalled. The learned counsel for the complainant further argued that the accused has issued cheque to the petitioner in a business transaction and caused huge loss to the petitioner, hence the accused has committed offence under section 489-F, P.P.C. and learned Sessions Judge, Gilgit has wrongly appreciated the relevant law and has passed the impugned order in a hasty manner. The learned counsel for the complainant further argued that the accused has issued the cheque with mala fide intention, hence the accused is not entitled for concession of bail. The learned counsel for the petitioner further submitted that offence under section 489-F, P.P.C. is non-bailable and is fully attracted to the instant case. The learned counsel for the petitioner further submitted that the accused has misused the concession of bail and has not joined the investigation during investigation of the case, hence, the accused is not entitled for concession of bail, as the bail facility extended to the accused may be recalled and accused be handed over to the police for investigation of the case. In support of his contentions the learned counsel for the petitioner/complainant has relied on judgment of this Court passed in Cr. Misc.07/2024.

6. On the other hand, the learned counsel for the accused/respondent No. l controverted the arguments advanced by the learned counsel for the complainant by contending that exceptional circumstances are required to recall bail facility of an accused once granted by a competent Court of law. The learned counsel for the accused further submitted that in the instant case the learned counsel for the complainant has miserably failed to agitate any single ground of bail cancellation, hence the bail cancellation petition of the complainant is liable to be dismissed. The learned counsel for the accused further contended that there is 5 months and 20 days un-explained delay in lodging of the FIR. The learned counsel for the accused/respondent No.1 further contended that there is old standing business relationship between the parties, hence, no case of offence under section 489-F, P.P.C. is made out against the accused and the learned Sessions Judge has rightly confirmed the interim pre-arrest bail. The learned counsel for the accused/respondent No.1 further submitted that the grounds for cancellation of bail are much different from the grounds of granting of bail and in the instant petition the petitioner has failed to establish the required grounds for cancellation of bail, hence, the instant petition may be dismissed in the interest of justice. The learned counsel for the accused/respondent No.1 has relied upon the judgments of superior Court reported as PLD 2005 Lahore 607, 2016 PCr.LJ 769.

7. I have considered the arguments advanced by the learned counsel for the parties at length and perused the available record of the case with their able assistance.

8. Perusal of record would show that there is five months and twenty days unexplained delay in lodging of FIR. There was a bona fide transaction of land between the complainant and accused/respondent No.1 as the complainant had sold out one Kanal and five Marlas land to the respondent No.1/accused in consideration of Rs. 85, 00,000/- as evident from the sale deed dated 10-01-2021. Out of Rs. 85,00,000/- Rs. 55, 00,000/- has been paid to the complainant by the accused/ respondent No.1. The land in question has yet not been transferred in the name of respondent No. I /accused. Thus, I am of the considered opinion that the controversy /dispute between the parties is of a civil nature and this controversy can be resolved through filing civil suit in the Civil Court, hence case of the respondent/accused requires further inquiry. Moreover, offence under section 489-F does not fall within the ambit of prohibitory clause of section 497, Cr.P.C., as punishment prescribed for the offence is riot beyond 3 years, hence, grant of bail in the offences which do not fall within the ambit of prohibitory clause of section 497, Cr.P.C. is a rule and refusal is an exception . Reliance is placed on, case titled "Tariq Bashir v. The State" PLD 1995 P-3 and 2021 PCr.LJ 502.

9. Moreover, deeper appreciation of evidence is not permissible in cases of bail or cancellation of bail, where the Court of competent jurisdiction granted bail to the accused, strong grounds are required for its cancellation. For cancellation of bail, the Court has to see whether the accused after release on bail is creating hindrance for the complainant party, tempering with the prosecution witnesses, or misusing concession of bail. Perusal of record depict that all these ingredients are lacking in favour of the complainant.

10. For what has been discussed above, the petition filed under section 497(5), Cr.P.C. for cancellation of bail granted by the learned Sessions Judge, Gilgit being bereft of merit is hereby dismissed. File. JK/37/GB Petition dismissed.