Karim Madad VS Muhammad Rafique etc.

ORDER SHEET.

IN THE ISLAMABAD HIGH COURT, ISLAMABAD.

JUDICIAL DEPARTMENT

Criminal Misc. No. 948-BC/2022

Karim Madad

Versus

Muhammad Rafique, etc.

S. No. of Date of Order with signature of Judge and that of parties or order/ order/ counsel where necessary.

proceedings Proceedings 26.07.2022 Mr. Azeem-ul-Quder, Advocate for petitioner.

This Crl Misc. under Section 497(5) of the Code of Criminal Procedure, 1898 (“Cr.P.C”) is arising out of order dated 27.06.2022, passed by the learned Additional Sessions Judge, Islamabad-West whereby respondent No.1/accused Muhammad Rafique was allowed pre-arrest bail in FIR No. 528, dated 28.07.2021, under Section 380, 34 PPC, Police Station Ramna, Islamabad.

2- According to the allegations set-forth in the FIR, complainant along with his family had been away to his native town in Hunza, Gilgit in order to celebrate Eid where he remained from 9.07.2021 to 26.07.2021. When they came back, witnessed that the thieves have stolen prize bonds worth Rs.1,828,750/- from his house. The complainant reported the incident to the police through 15, who also collected finger prints during spot inspection and registered the FIR against unknown persons.

3- After the registration of FIR and on completion of investigation, respondent No. 1 applied for post-arrest bail, which was allowed vide order dated 27.06.2021, passed by the learned Additional Sessions Judge, Islamabad-West, being impugned through the instant petition.

4- Learned counsel for the petitioner assisted by learned State Counsel contended that sufficient incriminating material is available on record which connects the respondent No. 1 with the commission of alleged offence. He further stated that challan has already been submitted and there was no justification with the learned Trial Court to exercise discretion in favour of the respondent, as such the order passed by the Courts below is liable to be set aside.

5- On the other hand, learned counsel for the respondent No. 1 contends that no incriminating material has come on record against the said respondent; that no overt act is attributed to him while nothing was recovered from his possession and that no ground has been urged warranting cancellation of bail as contemplated in section 497 (5) Cr.P.C, therefore, petition is liable to be dismissed.

6- Heard, record perused.

7- Perusal of the record reveals that the respondent No. 1 was implicated in this on the basis of statement/disclosure of co- accused in terms that he sold the stolen prize bonds to the respondent No. 1. The latter then applied for pre-arrest bail which was allowed by learned ASJ-IV vide impugned order 27.06.2022 by observing that no incriminating material brought on record that respondent No. 1 had knowledge of the said prize bonds to be stolen.

8- The Hon’ble Supreme Court of Pakistan in the recent Order dated 08.11.2021 in case of Abdul Majeed Afridi v. The State and Abdul Latif Afridi, Crl. P. No. 632 of 2021 while deciding bail cancellation petition in a murder case has reiterated the principles governing cancelation of bail laid down in the case of “Samilullah and another V. Laiq Zada and another (2020 SCMR 1115), followed in Criminal Petition Nos. 1459/2020,

1523/2020, 970 to 976/2021 & Criminal Petition No. 1145-L of 2020: which are as under:-

“i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice.

ii)That the accused has misused the concession of bail in any manner.

iii)That accused has tried to hamper prosecution evidence by persuading pressurizing prosecution witnesses.

iv)That there is likelihood of absconsion of the accused beyond the jurisdiction of court.

v)That the accused has attempted to interfere with the smooth course of investigation.

vi)That accused misused his liberty while indulging into similar offence.

vii)That some fresh facts and material has been collected during the course of investigation which tends to establish guilt of the accused.”

9- The limits on the subject are explicit and guide to hold that a bail granting order being patently illegal, either erroneous or factually incorrect can be interfered with, particularly when the same is in defiance of the material available on the record.

10- Reliance is placed upon case law reported as “Maqbool Ahmed Mahessar & others v. National Accountability Bureau through its Chairman & others.” (2021 SCMR 1166). Grant of bail is a discretionary relief, however, exercise of discretion must be structured on sound judicial considerations, objectively deducible from the record of the case. Particularly in cases punishable imprisonment for 10 years or above, thus, grant of bail in this regard thereof, by itself constituted a strong ground, justifiable calling for interference. Reliance in placed upon Noor Aslam v. The State (2021 SCMR 1225). Bail granting order could be cancelled if the same was perverse. In legal parlance, a perverse order was defined as an order which was, inter-alia, entirely against the weight of the evidence on record. An order granting bail would be perverse and contrary to the principles of law if the same was passed by ignoring material evidence on record and without giving reasons. In cases

where the Court granting bail ignored relevant material indicating prima facie involvement to the accused in the commission of crime or took into account irrelevant material, which had no relevance to the question of grant of bail to the accused, then the court reviewing such order would be justified in cancelling the bail. Reliance in placed upon Sidra Abbas v. The State (2020 SCMR 2089) Reliance is also placed on (2010 SCMR 580).

11- In view of above, the impugned order being in accordance with the material collected by the prosecution, does not call for any interference. Consequently, instant criminal misc. fails and accordingly dismissed.

(ARBAB MUHAMMAD TAHIR)

JUDGE

**//Kamran//**