P L D 2019 High Court (AJ&K) 9 (PLP)

RAJA SAJJAD AHMAD KHAN, J.

Since appeal, revision petition and the application arise out from the same F.I.R, therefore, these are consolidated and will be disposed of through this common order. Brief facts forming background of the instant appeal and application are that complainant Mohammad Saleem, lodged a written report at Police Station, Mangla wherein it is alleged that on 25.07.2016 that he was going to Airport to see off his son Imtiaz Ahmad aged 45 years who is going. The complainant and others were a Car No.8064/LWK which was driven by Javed Akhtar. Imtiaz Ahmad was sitting on front seat while complainant and his grand-son Mohammad Sami aged eight year and his daughter's son Ubaid-ur-Rehman were sitting in the back seat, when they crossed bung head bridge, the accused armed with pistol and sticks, stopped their Car and launched an attack upon them and broke the glasses of his Car. They pulled out Imtiaz Ahmad and Ubaid-ur-Rehman from the car, Javed Akhtar alighted from the vehicle to rescue them but Irfan with intention to kill him gave danda blow at his head who seriously injured while caused stick injury at the head of Javed Akhtar. The other three accused also beat Ubaid-ur-Rehman with Dandas. All the five accused inflicted sticks injuries on different parts of body of Imtiaz Ahmad, Javed Akhtar and Ubaid-ur-Rehman.

3. On this report a case under sections 324, 341, 337A-F, 147, 148, 149, 109 and 427, A.P.C was registered. After registration of the case, accused-respondents applied for pre-arrest bail before Additional District Court of Criminal Jurisdiction, Mirpur which was allowed to the extent of Mohammad Shoukat and Mohammad Shabbir while bail to the extent of Aamir Iqbal, Irfan, and Shahzad was refused vide order dated 17.08.2016. After arrest, they applied for bail before Additional Tehsil Court of Criminal Jurisdiction, Court No.1, Mirpur which was allowed to the extent of Shazad accused but the same was refused to Mohammad Irfan and Aamir vide order dated 25.08.2016. Against the aforesaid order, the petitioner-complainant moved an application for cancellation of bail allowed to Shazad accused, before Additional District Court of Criminal Jurisdiction, Mirpur which was dismissed vide order dated 23.09.2016 After completion of investigation and submission of challan, Aamir and Irfan accused respondents again applied for bail before Additional District Court of Criminal Jurisdiction, Mirpur on 29.08.2018 which was allowed to them vide impugned order dated 03.09.2016. The correctness and legality of the orders dated 17.08.2017, 23.09.2016 and 03.09.2018 have been called in question through the instant appeal, revision petition and application.

4. Ch.Mohammad Riaz Alam, the learned counsel for the petitioner in cases Nos.19/2017 and 95/2017, and learned Assistant Advocate General for the State, reiterated the grounds already made in the appeal, revision and application and submitted that court below has committed grave error while allowing bail to the accused-respondents because they were present at the place of occurrence and ascribed specific role in the occurrence and seriously injured the complainant, his son and daughter's son. The learned counsel emphasized on the point that pre-arrest bail of accused respondents Aamir, Irfan and Shazad was rejected on merits on 17.08.2016 but they were allowed after bail without any fresh ground which is against the settled principle of law governing bail matters, therefore, by accepting the application, revision and appeal, the same may be cancelled. In support of his arguments the learned counsel placed reliance on 1996 SCR 25, 28 and 880.

5. On the other hand, Rashid Nadeem Butt, the learned counsel for the accused-respondents defended the impugned order on all counts and prayed for dismissal of the appeal and application. He further argued that challan has been submitted before the competent Court and no further recovery is required, therefore, the same may be dismissed. In support of his arguments, he placed reliance on 2016 SCR 1089.

6. I have heard the learned Advocates for the parties as well as A.A.G and gone through the record of the case and case law cited by learned counsel for the parties.

7. It would be worthwhile to mention here that pre-arrest bail is an extra-ordinary relief which can be granted in extra-ordinary circumstances and the same cannot be allowed unless the accused satisfy the Court that the case against him was based on ulterior motives or where no offence was shown to have been committed on the very face of record. It is also settled principle of law that pre-arrest bail disallowed by a superior Court on merits the lower Court stands precluded from accepting the post arrest bail without change of circumstances and mere arrest of an accused will not change the nature of case. The learned counsel for petitioner-complainant has rightly placed reliance on 1996 SCR 25 and 28.

8. In the instant case, bail before arrest of the accused respondents Aamir, Irfan and Shahzad was rejected on 17.08.2016, however, accused Shazad was allowed bail by Additional Tehsil Court of Criminal Jurisdiction, Mirpur on 25.08.2016 while Aamir and Irfan were granted bail by Additional District Court of Criminal Jurisdiction, Mirpur on 03.09.2016 when investigation was completed and challan of the accused was presented before the trial Court. So they were allowed bail after arrest after the change of circumstances.

9. It may be mentioned here that consideration for grant of bail and for cancellation of the same are altogether different. It is settled principle of law that once the bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation thereof. There is no iota of evidence that the accused respondents misused the concession of bail. A perusal of the record shows that though the accused respondents are nominated in the F.I.R, but prima facie case against them was a matter of further inquiry. Moreover, after completion of investigation challan has been submitted before the trial court meaning thereby that the accused respondents are not required by the Police for the purpose and accused cannot be handed over to the police.

10. As far as the objection of learned counsel for the accused petitioner regarding pre-arrest bail granted to the accused Shabbir Hussain and Shoukat accused, is concerned. It may be mentioned here that it is correct that Shabbir Hussain accused is nominated in the F.I.R, but no specific role regarding his actual participation in the occurrence was attributed to him while his role was ascribed by the witnesses in statements recorded under Section 161,Cr.P.C. The learned trial Court granted pre-arrest bail to accused Shabbir and Shoukat on the ground of possibility of false involvement, thus committed no illegality.

11. It may be mentioned here that no appeal is competent against an order passed on a bail petition as it is not a final judgment in term of section 369,Cr.P.C. moreover, it has already been resolved by the Apex Court in a case titled "Mohammad Bashir v.The State" PLD 1992 SC(AJ&K)14 that scheme of Code of Criminal Procedure Code in respect of bail matter is fully applicable to the cases of Islami Tazeerati Quanaeen, Nifaz, Act, therefore, appeal filed by the complainant is hereby converted into petition for cancellation of bail. Under these circumstances the impugned orders were passed in right direction and at this stage bail could not be withheld as a punishment. No illegality or infirmity has been committed by the trial Court, therefore, finding no force in the revision petition and the petitions for cancellation of bail, these are hereby dismissed. A copy of order shall be annexed with other relevant files. SA/18/HC(AJ&K) Petitions dismissed.