2025 CCJ 15
Other citations: 2025 PCrLJ 120
[Gilgit-Baltistan Chief Court]
Before Mushtaq Muhammad and Jahanzeb Khan, JJ
The State through Additional Advocate General Gilgit Baltistan—Petitioner
versus
Ahmed Hassan—Respondent
Cr. Misc. No. 109 of 2024, decided on 18th May, 2024.
HEADNOTES
Awaiting headnotes from volunteer editors.
Malik Sherbaz Khan, Additional Advocate General for the State assisted by Muhammad Faqir, Special Prosecutor Anti-Corruption Gilgit.
I.O of the case Abdul Hadi of PS Anti-Corruption Gilgit.
Accused/respondent in person along with counsel Imtiaz Hussain.
Date of hearing: 17th May, 2024.
JUDGMENT
Mushtaq Muhammad, J.—Through the instant application under Section 497 (5) Cr.P.C., the learned Additional Advocate General Gilgit Baltistan (hereinafter called petitioner) has called in question the impugned order dated 02/04/2024 of learned Special Judge Anti-corruption Gilgit (hereinafter called trial court), whereby, the learned trial court has confirmed the ad-interim pre-arrest bail in favour of the accused/ respondent Ahmed Hassan son of Shah Jahan Khan in the case FIR No.05/ 2024 registered at P.S Anti-corruption Jutial Gilgit.
2. The stated charges according to the FIR are the massive corruption/ embezzlement in the official budget of the City hospital Gilgit. On the application of complainant Amanullah son of Dadu, inquiry was conducted and responsibility of the said massive corruption/embezzlement has been fixed against the present accused/ respondent namely Ahmed Hassan, the then Medical Superintendent, Nadeem Fareed storekeeper of the said hospital and Kamil Jan procurement contractor. Or the basis of inquiry report FIR No.05/ 2024 was formally registered on 19/02/2024. The concluding paragraph of FIR No.05/2024 reveals that it is case of embezzlement in the funds specifically allocated for the poor, needy and destitute patients. Accused/respondent after registration of the case surrendered before Peshawar High Court and obtained anticipatory bail and in the shelter of said protection surrendered before the learned trial court and requested for pre-arrest bail in the said case vide Bail Application No.12/ 2024. After hearing both the parties learned trial court vide the impugned order dated 02-04-2024 has confirmed the pre-arrest bail in favour of accused/respondent on the grounds that the offences with which accused/respondent is charged do not fall within the prohibitory clause of Section 497 Cr.P.C, that the accused Nadeem Fareed has been admitted to bail, hence role of consistency attracts in the instant case and lastly that the learned Special Prosecutor and I.O of the case admitted before the trial court that accused/ respondent is co-operating towards the completion of investigation. Felt aggrieved with the impugned order dated 02-04-2024 de State through the Additional Advocate General Gilgit Baltistan has filed this petition
3. Arguments have been heard on 17/05/2024. Malik Sherbaz Khan Addl. AG assisted by Mr. Muhammad Faqir Special Prosecutor submitted before the court that accused/ respondent is directly charged in the FIR and he is required for further investigation in the case but the learned trial court has wrongly extended the judicial protection to the accused/ respondent. Learned Addl. AG contested the impugned order dated 02/04/2024 on the ground that pre-arrest bail being an extra ordinary remedy has it’s own parameters but the learned trial court has granted the extra-ordinary relief in favour of accused/ respondent on altogether different grounds, hence the impugned order 02/04/2024 is liable to be set aside.
4. On the other hand, Mr. Imtiaz Hussain advocate appearing on behalf of accused/ respondent submitted that this petition filed under Section 497(5) Cr.P.C does not involve a single valid ground for cancellation of bail. He referred the judgment “Saeed Ullah and 2 others v. The State” [2023 SCMR 1997], “Aurangzeb v. Muhammad Yaqoob” [2022 PCr.LJ 1047], “Muhammad Saifullah Cheema’s Case” [2022 PCr.LJ 1327] and “Ali Sher v. The State” [2005 PCr.LJ 535]. Learned counsel further submitted that complainant Aman Ullah in his application did not charge the present accused/ respondent and he was subsequently involved by the prosecution. He submitted that FIR has been registered in violation of Section 8 of the Gilgit-Baltistan Anti-Corruption Establishment Act, 2019 and the rules made thereunder. Learned counsel submitted that the I.O and learned Special Prosecutor before the trial court had conceded that accused/ respondent is not required for investigation hence, their subsequent act by filing the instant petition is not justified. Learned counsel prayed that this petition being devoid of merit and illegal may be dismissed.
5. Record perused and deliberated. The relief of pre arrest bail ist only available to an innocent person, who has been involved or dragged in a false case. While granting this exceptional remedy, to a person, court must examine the case with a view to see the correctness or falsity A of the case i.e., the facts alleged in the FIR do constitute commission of a cognizable offence. There is no legal provision for pre-arrest bail unlike post arrest bail. This exceptional remedy has emerged from the judgment of a full bench of Lahore High Court in the case cited “Hidayat Ulah Khan v. The Crown” (PLD 1949 Lahore Page 21). Relevant portion of the judgment is reproduced here:
“Admission of suspected persons to bail in anti-cipation of arrest– Power of High Court not only good prima facie ground should be made out but also that arrest would be from ulterior motives or that it would cause irreparable harm”
“In proper case the High Court has power under Section 498 Cr.P.C to make an order that a person who is suspected of an offence for which he may be arrested by a police or a Court, shall be admitted to bail”
“The exercise of the power should however, be confined to cases in which not only is good prima facie ground made out for the grant of bail in respect of the offence alleged but also, it should be shown that if the petitioners were to be arrested and refused bail such an order would, in all probability, be made out from motives of furthering ends of justice in relation to the case, but for some ulterior motives and with the object of injuring the petitioner or that the petitioner would in such eventuality suffer irreparable loss.”
It is in the judgment that, the power would require to be exercised with the very greatest care and restricted to exceptional case. Therefore, a court while hearing a petition for pre-arrest bail must consider the following points: –
i. Whether the facts stated in the FIR reveal the commission of a cognizable offence?
ii. Whether the accused appears to be involved in the commission of the offence on a prima facie examination?
iii. Whether the conduct of prosecution is actuated by malice or ulterior motive?
iv. Whether the arrest of the accused would cause him irreparable harm or injury?
In a recent judgment cited “Gulshan Ali Solangi v. The State through Prosecutor General Sindh” (2020 SCMR 249) a division bench of Hon’ble Supreme Court of Pakistan has laid down the principle for grant of pre-arrest bail. Relevant portion is reproduced here for a ready reference:
“Grant of Pre-arrest bail was a remedy rooted into equity, at a cost to hamper investigation…Such judicial protection was extended solely to save the innocent from the horrors of abuse of process of law with a view to protect his dignity and honour… Said remedy could not be granted in every run of mill criminal case, particularly to an accused prima facie charges structured upon material/evidence, warranting custody, that too, on the basis of positions/pleas, verification whereof, was consequent upon recording of evidence.”
6. Perusal of the impugned order dated 20-04-2024 passed by the learned trial court, we are of the considered view that the learned trial court has granted the extraordinary relief to the accused/ respondent in a very ordinary manner. Learned trial court has not recorded a single sentence/ finding on the points prima facie case and involvement of the accused/ respondent in the instant case. Learned trial court has also not given a single reason regarding the consequences of arrest of accused/respondent.
It is on record that after a formal inquiry the case has been registered. Accused/ respondent is directly charged in the FIR and his role being the Medical Superintendent of the said Hospital is specifically mentioned therein. Beside the above, the case is one of documentary evidence and verification of the same is required. Prima face accused/respondent is facing a charge structured upon the documentary evidence, Accused/ respondent during the days of occurrence was the Medical Superintendent of said Hospital, therefore, question of false implication does not arise. The question of rule of consistency does not arise because the co-accused, Nadeem Farid had joined the investigation and he was later on released by this court on post arrest bail.
7. Learned Special Prosecutor and I.O Abdul Hadi stated at the bar that statement attributed to them regarding cooperation of accused/respondent is incorrect and they don’t accept the same. Learned trial court while attributing such a serious allegation against the learned Prosecutor and I.O, did not record their statement or taken any other evidence. Therefore, the said attribution is incorrect and same does not get any support from the record is hereby set aside.
8. The State by filing this petition has asked for cancellation of pre-arrest bail granted to the accused/ respondent under section 497(5) Cr.P.C. But after examining the impugned order dated 02-04-2024 passed by learned trial court we are of the opinion that learned trial court has blatantly disregarded the established principle for grant of pre-arrest bail and granted exceptional remedy in favour of the accused/ respondent on irrelevant grounds and upholding such an. illegal order, which is clear example of wrong exercise of jurisdiction, is tantamount to set a bad judicial precedent. If this kind of decision is not overturned same would encourage future abuses of jurisdiction.
9. These are the reasons of our short order dated even. Which reads as under:
“For reasons to be recorded later, this petition is converted into revision and same is allowed. It is recorded that learned trial court has failed to exercise its jurisdiction while passing the impugned order dated 02-04-2024, hence the impugned order dated 02-04-2024 passed by the learned trial court in B.A. No.12/2024, is hereby set aside and judicial protection in the shape of pre-arrest bail granted in favour of accused/respondent is hereby withdrawn. Investigating Officer present in Court, is at liberty to arrest the accused/respondent outside of the court-room.” File.
Revision allowed