2026 M L D 481

 2026 M L D 481

[Gilgit-Baltistan Chief Court]

Before Johar Ali, J

SHOAIB HASSAN---Petitioner

Versus

SAFDAR KHAN and another---Respondents

Criminal Miscellaneous No. 386 of 2025, decided on 17th September,

2025.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing

a cheque---Application for cancellation of bail, dismissal of---

Allegations against the accused-respondent was that he issued

cheque in consideration of purchasing of a vehicle from the

petitioner/complainant and when the cheque was presented before

the bank concerned, the same was dishonoured due to insufficient

funds, hence the FIR was lodged---Accused-respondent was arrested

in the said FIR---Accused-respondent filed bail application before

the Judicial Magistrate but was rejected---Being aggrieved, the

accused-respondent filed bail application before the Sessions Court,

which was allowed---Validity---From perusal of the record, it was

evident that the respondent/accused was granted bail by the

Sessions Judge---Grounds urged by the petitioner/complainant for

cancellation of bail revolved around deeper appreciation of

evidence which was not permissible at bail stage and the grounds

for cancellation of bail and grounds for granting bail were totally

different---For cancellation of bail under S.497(5), Cr.P.C., it was

mandatory that there should be repetition of offence; chance of

absconsion; tempering of prosecution evidence; interference in the

investigation; creation of hurdles in investigation, or a try to delay

the trial; judgment/order passed by the lower Court being without

jurisdiction or illegal exercis of jurisdiction, but no such like

situation existed in the present case---Court had exercised its

discretion in granting bail and the same did not appear to be

perverse, illegal or arbitrary---Moreover, once a bail was granted by

the Court of competent jurisdiction, then it could only be recalled

on exceptional grounds, such exceptional grounds were not existing

in the instant case---Furthermore, no grounds for cancellation of

bail had been substantiated by the petitioner/complainant in the

instant application---Application filed under S.497(5), Cr.P.C for

cancellation of bail was dismissed, in circumstances.

Farhan Ali for Petitioner/Complainant.

Wahid Ali for Respondent.

Malik Sher Baz, Additional Advocate General for the Proforma-

respondent/State.

Date of hearing: 17th September, 2025.

ORDER

JOHAR ALI, J.---Through this Criminal Miscellaneous application

under Section 497(5), Cr.P.C., petitioner/complainant seeks cancellation

of bail, granted to the respondent/accused by the learned Sessions

Judge Gilgit vide bail granting order dated 02-06-2025, passed in B.A.

No.298/2025, in FIR No. 239/2024, registered under Section 489-F, P.P.C,

at Police Station City Gilgit.

2. Brief facts of the case in hand as per contents of FIR narrated by

the petitioner/complainant are that in consideration of purchasing of a

vehicle from the petitioner/complainant, the respondent/accused had

issued a cheque, bearing No.CA-66162715 amounting to Rs. 11,00,000/-

(Eleven Lac), of Soneri Bank Gilgit to the petitioner/complainant. On

25-03-2024, when the petitioner/complainant presented the said

cheque in the concerned Soneri Bank, the same was dishonored due to

insufficient of funds. Resultantly, on written application of the

petitioner/complainant, the aforementioned FIR No.239/24 was

registered against the respondent/accused, under Section 489-F, P.P.C,

at Police Station City Gilgit, hence, the respondent/ accused was

arrested.

3. The respondent/accused filed post-arrest bail petition (Criminal

Misc. No.50/2025) before the learned Senior Civil Judge/Judicial

Magistrate Gilgit which was dismissed by the learned Senior Civil

Judge/Judicial Magistrate Gilgit vide judgment/order dated 26-05-2025.

Being aggrieved, the respondent/accused filed post arrest bail petition

(B.A. No.298/2025) before the learned Sessions Judge Gilgit which was

allowed by the learned Sessions Judge Gilgit vide the impugned

judgment/order dated 02-06-2025. Being aggrieved from the same, the

petitioner/complainant has filed the instant bail cancellation petition.

4. The learned counsel for the petitioner/complainant submitted

that the respondent/accused malafidely and maliciously issued a

dishonored cheque bearing No.CA-66162715, amounting to Rs.

11,00,000/- (Eleven Lac Rupees) dated 14-03-2024, to the

petitioner/complainant and the respondent/accused was bound to pay

the said amount to the petitioner/complainant in respect of a vehicle

transaction as per sale deed/agreement deed dated 24-01-2024. On presenting the said cheque to the concerned bank, the same was

dishonored due to insufficient funds. The petitioner/complainant

approached the respondent/accused multiple times regarding dishonor

of cheque and the respondent/accused gave false assurances of

payment by using delaying tactics. The learned counsel further argued

that after exhausting all reasonable efforts, the petitioner/complainant

was compelled to approach the SHO Police Station City Gilgit through

written application coupled with the original cheque and return

dishonor memo and on the basis of which the above captioned FIR

No.239/2024 has been registered against the respondent/accused under

Section 489-F P.P.C. He further contended that the learned Sessions

Judge Gilgit has failed to appreciate that issuing a bogus cheque with

knowledge of insufficiency of fund is a cognizable, non-bailable and

serious offence falling within the ambit of moral turpitude and the

trend of issuing such cheques is increasing day by day and allowing

bail in such cases without appreciation of material facts encourages

financial frauds. The learned counsel further submitted that the

learned Sessions Judge Gilgit has passed the impugned judgment/order

dated 02-06-2025 without applying judicious mind as the same is

merely passed on the basis of delay in lodging the FIR and technical

observations regarding cheque staleness and lack of vehicle

transaction details in the FIR and entirely ignored the mens-rea,

modus operandi and fraudulent conduct of the respondent/accused,

hence, the impugned judgment/order is liable to be cancelled and bail

granted to the respondent/accused by the learned Sessions Judge Gilgit

is required to be recalled and directions may kindly be issued for

arrest of the respondent/accused. He further argued that the

respondent/accused is not entitled for concession of bail as a matter of

right, hence, bail facility granted by the learned Sessions Judge Gilgit

to the respondent/accused is liable to be recalled. He further submitted

that the impugned order is patently illegal and erroneously against the

facts of the instant case, and where any bail order is patently illegal or

erroneously, then bail facility shall be recalled, hence, bail facility

granted to the respondent/accused is liable to be recalled. Lastly, the

learned counsel for the petitioner/complainant has requested for

acceptance of the instant bail cancellation petition by setting aside the

bail order dated 02-06-2025 granted by the learned Sessions Judge

Gilgit in B.A. No.298/2025.

5. Conversely, the learned counsel for the respondent/accused

vehemently opposed the contentions raised by the learned counsel for

the petitioner/complainant and contended that the alleged cheque is a

stale cheque which has been presented after an unexplained delay of

more than ten months. He further argued that FIR has been registered

on 04-12-2024, but despite lapse of more than seven months, challan has not been submitted, and it is nowhere mentioned in the FIR that

the respondent/accused issued the alleged dishonored cheque in

fulfillment of financial obligation and details of the vehicle are also

missing in the FIR. The learned counsel further submitted that no

notice under Section 30 of the Negotiable Instruments Act issued to the

respondent/accused and mandatory provisions of Section 173, Cr.P.C

have been violated as trial of the case has yet not been commenced. He

further submitted that the learned Sessions Judge Gilgit has rightly

granted bail facility to the respondent/accused as a matter of right,

hence, he prayed for dismissal of the instant bail cancellation petition

to meet the ends of justice, law and equity.

6. I have heard the arguments advanced by the learned counsel for

the parties and gone through the available record of the case with

their able assistance.

7. From perusal of the record, it is evident that the

respondent/accused was granted bail by the learned Sessions Judge

Gilgit vide order dated 02-06-2025. The grounds urged by the learned

counsel for the petitioner/complainant for cancellation of bail revolve

around deeper appreciation of evidence which is not permissible at

bail stage and the grounds for cancellation of bail and grounds for

granting bail are totally different. For cancellation of bail under

Section 497(5), Cr.P.C., it is mandatory that there should be repetition

of offence, chance of absconsion, tempering of prosecution evidence,

interference in the investigation, creates hurdles in investigation or

tries to delay the trial, judgment/order passed by the learned lower

Court is without jurisdiction or illegally exercise of jurisdiction, but no

such like situation exists in the present case. The learned Trial Court

has exercised its discretion in granting bail and the same does not

appear to be perverse, illegal or arbitrary.

8. It is a settled principle of law that once a bail is granted by the

Court of competent jurisdiction, then it can only be recalled on

exceptional grounds, such exceptional grounds are not existing in the

instant case. Furthermore, no grounds for cancellation of bail have

been substantiated by the petitioner/complainant in the instant

Application under Section 497(5), Cr.P.C.

9. In view of the above discussion, I find no illegality or infirmity in

the impugned judgment/order dated 02-06-2025 passed by the learned

Sessions Judge Gilgit. Consequently, the instant Criminal Misc.

No.386/2025 as well as Cr. Misc. No.387/2025 filed under Section 497(5),

Cr.P.C for cancellation of bail stands dismissed. File.

JK/29/GB Revision dismissed.