SULTAN MAHMOOD Versus MANSOOR SHAMSI

ORDER

NOOR-UL-HAQ N. QURESHI, J.--- Through this petition, the petitioner seeks cancellation of post arrest bail granted to respondent No.1 vide order dated 17-6-2014 passed by this Court.

2. Precisely, facts of the case as narrated in the F.I.R. bearing No.473/2007 dated 16-11-2007 under section 489-F, P.P.C. registered at P.S. Kohsar, Islamabad are that petitioner had paid Rs.13,80,000 for the purpose of getting VISA for England for himself as well as for his family to respondent No.1, who on failure to do the needful, issued a cheque dated 19-11-2007, which was dishonoured on its presentation.

3. Respondent No.1 filed petition for bail after arrest, which was dismissed by the learned Judicial Magistrate vide order dated 6-5-2014. Then, the petitioner preferred bail petition before the learned Sessions Judge (West), Islamabad which too met the same fate vide order dated 17-5-2014. There after, the petitioner approached this Hon'ble Court for the above purpose. This Court vide order dated 17-6-2014 allowed bail to respondent No.1, hence this petition for cancellation of bail.

4. Learned counsel for the petitioner, has mainly argued that complainant was not put on notice to pursue the bail petition filed by respondent No.1 before this Court therefore proper assistance could not be provided to the learned Standing Counsel during hearing of bail petition. Due to previous conduct of accused/respondent No.1, there is every likelihood of his absconsion, as he had already absconded for a longest period. Moreover, respondent No.1, at one time, misused the concession of bail therefore non-bailable warrants were issued by the learned trial Court, which were later on recalled extending leniency. In view of above, it has been contended that since respondent No.1 has violated the conditions for grant of bail therefore bail granted to him vide order dated 17-6-2014 may be cancelled.

5. I have gone through the record and heard the arguments.

6. I have perused the order dated 17-6-2014, which shows appearance of learned Standing Counsel, who opposed the grant of bail to respondent No. 1, but he failed to explain legal position or to rebut the arguments advanced on behalf of respondent No.1 for grant of bail.

7. This Court while passing order dated 17-6-2014 granted bail to respondent No.1 observed that both sections specified in the F.I.R. i.e. 419, P.P.C. and 489-F, P.P.C. are punishable for three years or fine or both. It was further observed that, if the learned trial Court convicts the petitioner only with imposition of fine then detention suffered by the petitioner cannot be compensated.

8. Moreover, learned counsel for the petitioner has not been able to satisfy this Court as to which condition for grant of bail or bond has been violated by respondent No. 1 after seeking bail from this Court. Though no proof was submitted with regard to absconsion of respondent No.1 as argued, but yet, it is a legal proposition that the absconsion by itself is not a blind rod to kill each and every right of accused.

9. Even otherwise, respondent No.1 was granted bail by exercising discretionary powers vested to the Court under section 497, Cr.P.C. The absconsion should not come in the way for refusal of bail or same cannot be made a ground for cancellation of bail.

10. Furthermore, absence of respondent No.1 for which, non-bailable warrants were also issued by the learned trial Court which were later on withdrawn is also not a sufficient ground for cancellation at bail.

11. Furthermore, the consideration for cancellation of bail is altogether different from the consideration for grant of bail. No exceptional circumstances shown to have existed for seeking-extraordinary indulgence of this Court to deprive a citizen of his liberty. No ground of misusing the concession of bail after passing of the impugned order has been pointed out.

12. Following are the settled principles of law required to be considered while dealing with the petition for cancellation of bail:--

(a) That if the court while granting bail has not violated the principles laid down for grant of bail, the cancellation is not proper;

(b) Mere fact that there could be another opinion to that of opinion framed on the tentative assessment of evidence, would not be sufficient to cancel the bail, if facts assessed on the test of further arguing into the guilt, or innocence of accused it terms of section 497(2), Cr.P.C.;

(c) Strong and exceptional grounds are required for cancellation of bail;

(d) When trial has already commenced, so to avoid the discussion and remarks upon the merits of the case;

(e) Court while considering cancellation plea has to see whether bail granting order was patently illegal, erroneous, factually incorrect and resulted in miscarriage of justice.

(f) When bail granted by a competent court for valid and cogent reasons, not open to legitimate exceptions;

(g) Whether accused after grant of bail has misused the concession of bail and conditions of bond executed.

(h) In case of fresh ground for cancellation, the court which granted bail should be approached first, as propriety demands.

13. In this regard, I am fortified with the following case-law:--

(a) 1970 SCMR 299 (Rehmat Ullah alias Rehman v. The State and another)

(b) 1975 SCMR 230 (Karam Din v. Muhammad Ashraf and 2 others)

(c) 2005 SCMR 1291 (National Accountability Bureau v. Khalid Masood and another)

(d) 2006 SCMR 66 (Suba Khan v. Muhammad Ajmal and 2 others)

(e) 2008 SCMR 1715 (Muhammad Akram v. Zahid Iqbal and others)

(f) 2009 SCMR 1202 (Muhammad Azhar v. Dilawar and another)

(g) 2011 SCMR 815 (Gohar Rehman v. Muhammad Tahir and another)

14. The upshot of above discussion is that cancellation of bail sought is declined. Consequently, instant criminal miscellaneous is dismissed in limine.

MWA/66/ISL. Petition dismissed.