Asif Ali vs Zafar Iqbal alias Zafri, etc
This matter involves an application under Section 497(5) of the Code of Criminal Procedure 1898, seeking the cancellation of pre-arrest bail granted to the respondents by the Additional Sessions Judge, Sahiwal. The core legal question was whether the respondents, accused of fabricating a fictitious case diary to facilitate the unlawful arrest of the complainant, were entitled to the concession of pre-arrest bail. The High Court held that the bail granted to the primary accused, who was specifically implicated in the FIR for creating the fictitious record, was improperly granted as the lower court failed to exercise its discretion correctly. Consequently, the bail for the primary respondent was cancelled. However, the court maintained the bail for the remaining respondents, finding no evidence of misuse of the concession or specific allegations warranting cancellation. The judgment reinforces that considerations for granting bail differ from those for cancellation, and that specific allegations of forgery against an accused, absent evidence of mala fide by the complainant, necessitate a stricter judicial approach regarding pre-arrest bail.
- Can pre-arrest bail be cancelled if the accused is specifically named in the FIR for fabricating official records?
- Does the standard for granting bail differ from the standard for cancelling bail?
- Is the concession of pre-arrest bail liable to be cancelled if the lower court failed to properly exercise its judicial discretion?
- Section 497(5), Code of Criminal Procedure 1898
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 87, Code of Criminal Procedure 1898
ORDER
This is an application under Section 497(5), Cr.P.C. The applicant seeks recalling/setting aside of the order dated 08.03.2021, passed by the learned Addl. Sessions Judge, Sahiwal, whereby ad-interim pre-arrest bail already granted to respondents No. 1 to 4 namely Zafar Iqbal Zafri, Sarfraz, Naveed Aslam Khan and Muhammad Tanvir have been confirmed in case/FIR No. 977, dated 27.09.2020, offence unde r Sections 420/468/471, PPC, registered at Police Station City Depalpur , District Okara.
2. The allegation against respondents is that in collusion of each other , they got prepared a fictitious case diary No 21, without the knowledge of Jehangir Ahmad ASI, despite the fact that case/diary No. 21 recorded by Ijaz Ahmad Inspector/SHO was already available on the police file of case/FIR No. 451/2 017 (453/2017), consequently , proceedings against the complainant were initiated and proclamation u/S. 87 Cr.PC were issued against the complainant and others. Under the garb of those proceedings the petitioners got the complainant arrested by the police in the above case.
3. Heard and record perused.
4. The disputed case diary No. 21 dated 24.04.2018 pertaining to case/FIR No. 453/2017 has been recorded/written by respondent Zafar Iqbal alias Zafri allegedly on the asking of Jehangir Ahmad ASI. He has been engaged by the said ASI, without legal basis. The learned Addl. Sessions Judge, Sahiwal granted pre-arrest bail to the aforesaid petitioner mainly on the grounds that "the disputed case diary and other record of the case FIR No 453/2017 was produced before the learned Judicial Magistrate by the 1.0., who, as per request of the I.O. issued non-bailable warrants of arrest and proclamation u/s. 87, Cr.P.C. of the complainant and others (accused party of cross-version of case'FIR No. 453/2017) vide order dated 02.02.2019. The question as to who produced the record before the learned Judicial Magistrate for obtaining non-bailable warrants of arrest and proclamations of the complainant and others (accused party of the cross version) was answered by the L 0, vide Zimni No. 14 dated 08.11.2020, which reveals that the petiti oners Tanveer Aslam etc obtained non-bailable warrants of arrest and proclamations of the complainant u/S. 87, Cr.P.C. through LO. Jehangir Ahmad ASI. This fact makes the case of the petitioner one of further inquiry". Respondent No. 1 Zafar Iqbal Zafri having been named in the FIR with the specific allegation of recording fictitious case diary/Zimni vide case diary No. 21 dated 24.04.2018, when during investigation, he has been found involved in commission of the alleged offence, in absence of any. malafide on part of the complainant to falsely involve him in this case, the bail granting order passed by learned Addl. Sessions Judge, Sahiwal is not an embodiment of proper exercise of discretion, therefore, by allowing this petition pre-arrest bail granted to Respondent No 1 namely Zafar Iqbal Zafri by the learned Addl. Sess ions Judge, Sahiwal, vide order dated 08.03.2021 is hereby cancelled.
5. So far as the cancellation of bail to the extent of respondents No. 2 to 4 is concerned, the impugned order to their extent is unexceptional. No element of misuse of concession of bail by them has been agitated.
Considerations for the grant of bail and the cancellation thereof are altogether different. Hence, this petition to their extent, having no grains is dismissed. It is however clarified that observation made hereinabove shall not prejudice the post arrest bail petition if any moved on behalf of Respondent No. 1 before the learned trial Court and if any such petition is moved, the same shall be decided strictly on its own merits. The D.P.O Sahiwal shall also look into the matter .