MUHAMMAD ALI TARIQ vs AFFAN AHMAD KHAN and another

ORDER

' FAZAL-F-MIRAN CHAUHAN, J.-By filing this petition, petitioner/ complainant has sought cancellation of ed by this Court vide order dated 20-11-2006 to Afan Ahmad, respondent No,l, in case F.I.R. No, 309, dated 13-7-2006 offence under section 489-F, P.P.C., registered at Police Station, Lytton Road, Lahore.

2. Learned counsel for the petitioner submits that respondent in connivance with the then I.O.

Recorded a wrong Zimini that compromise has been effected between the parties and I.O. Made a wrong statement in the Court as a result thereof bail before arrest was granted to the respondent.

Since petitioner/complainant was not informed by the Investigating Officer about the pendency of bail petition and managed to get the bail confirmed. Further argued that on the findings of the Investigating Officer the respondent was found to be innocent, was also based upon mala fide intention. Having come to know about the connivance of the Investigating Officer with respondent, application for change of investigation was moved by the petitioner and ultimately investigation was changed and in the subsequent investigation, respondent was found to be guilty of the offence. It is also argued, that the previous Investigating Officer referred the matter to the Arbitrator and the said Arbitrator wrongly declared that a compromise was effected. All this was done by the previous Investigating Officer, who has been suspended and facing an inquiry in this respect.

Finally argued that if the wrong statement of the Investigating Officer is discarded, it was not a fit case for bail before arrest. Since it was secured by making a false statement, such person is not entitled for any such relief.

3. On the other hand, learned counsel for respondent No,l has vehemently opposed the cancellation of bail and submitted that the ing order passed by this Court is well-reasoned and nothing has been concealed therefrom. Actually a compromise has been effected between the petitioner and respondent No, 1 and due to this reason, the police has declared respondent No,l as innocent, thus, this cancellation petition merits dismissal.

4. Learned Assistant Prosecutor General has submitted that, since in the subsequent investigation, respondent No,l has been found guilty of the offence, thus, is not entitled for any concession of bail especially, when the ing order was procured by making a false statement.

5. I have heard the learned counsel for the parties and perused the record.

6. The principles for grant and cancellation of bail are altogether different. Strong and exceptional ground are needed for cancellation of bail. Bail can be cancelled:-

(i) "when the ing order is patently illegal, erroneous, factually incorrect;

(ii) some fresh facts or material has been collected by the police during investigation which may tend to establish or point out guilt of accused;

(iii) accused had misused his liberty by indulging in similar criminal activities;

(iv) accused interfered with course of investigation;

(v) accused attempts to tamper with prosecution evidence;

(vi) accused threatens witnesses or indulges in similar activity which would hamper smooth investigation and there is likelihood of his fleeing from the country or

(vii) accused makes himself scarce by going underground or becoming unavailable to investigating agency.

7. After perusing the record, it becomes crystal clear that after transfer of investigation, the police in the subsequent, investigation has declared respondent No,l. As guilty, thus, his case falls under subclause (ii) of section 497(5), Cr.P.C. Admittedly at the time of granting bail to respondent No,l by this Court vide order, dated 20-11-2006 the petitioner/complainant was not present, who is necessary party as per rules. This Court confirmed the bail before arrest of respondent No,l on the basis of statement made by Muhammad Ashraf S.I. That respondent No,l was found innocent and a compromise has also been effected between the parties. However, in the subsequent investigation, he was found to be guilty by the A.S.P. And the I.O. Was found to have connived with the accused/respondent and made wrong statement and get the bail confirmed. After second investigation, the police has collected record, making out a reasonable ground for believing the accused to be guilty of offence under section 489-F, P.P.C., which is sufficient ground to recall the earlier, order dated 20-11-2006 obtained by misrepresentation. Reference is made to the case of Qadir Mand v. Muhammad Amroze and others 1998 SCM R 496. The mere fact' that offence does not fall within prohibitory clause of section 497(1), Cr.P.C. Ground to claim bail as a matter of right.

Reference is made to the case of Abdur Razzaq v. Shah Nawaz and others 2003 YLR 1573.

8. For the foregoing reasons, this Crl. Misc. Is accepted and the ing order, dated 20-11-2006 passed by this Court is recalled.