' Shafqat Ali respondent No.2/accused in case F.I.R. No.4/2012 dated 18-1-2012 under sections 409, 420, 468, 471, 109, P.P.C. Read with section 5(2) Prevention of Corruption Act 1947 Police Station FIA Lahore was allowed pre-arrest bail by the learned Special Judge Special Court (Offences in Banks)
Lahore vide order dated 11-10-2012. Through this petition under section 497(5) of Criminal Procedure Code 1898 Shehriyar Alam on behalf of the complainant seeks cancellation of pre-arrest bail allowed to the respondent No.2.
2. Prosecution case is that one Nasir I3ashir Malik and Shafqat Ali (respondent No.2) along with their co-accused namely Muhammad Rafique Khan and Tanvir Hussain opened separate sole proprietorship accounts in UBL Abid Market Branch Lahore: that co-accused Nasir Bashir Malik fraudulently got encashed and deposited seven stolen foreign currency cheques total amounting Rs.162.7 Million by different entities in favour of CIBC Work Market and CIBC Capital Market Inc. In his account and the amount Rs.162.7 Million was credited in the said account. Attribution against Shafqat Ali (respondent No.2) is that he received a sum of Rs.
9.3 Million through cheques issued by principal accused Nasir Bashir Malik from his fraudulent Account No.371-0111-0.
3. Arguments heard. Record perused.
4. During the course of investigation Shafqat Ali respondent No.2 was declared innocent for want of incriminating material. The learned Special Judge Special Court (Offences in Banks) Lahore vide order dated 11-10-2012 allowed pre-arrest bail in his favour in the following manner:- "----It is fact to this extent that he was given cheque and he withdrew the amount but not for himself. And this has been thoroughly investigated by the Investigating Agency that the main beneficiary was Nasir Bashir Malik and the other accused. And the present petitioner is not the beneficiary of the any alleged amount. He has surrendered him before the Investigating Agency.
Nothing is required to be recovered from him as I.O. Has concluded that he has gained nothing from that alleged amount. The record is a, eady in the possession of the police. The present petitioner has no access to that record. There is no apprehension of tampering of the same.
Therefore, I do -.Or think it proper to hand over the custody of truth the petitioners to the police.
The ad-interim pre-arrest bail of the petitioners is confirmed and their custody is handed over to the sureties in the sum .Of Rs.10,00,000 each or bank guarantee of the equal amount each with one surety each in the like amount to the satisfaction of the Registrar of this court within a week's time."
5. Petitioner's plea is that signatures of respondent No.2 on the back of four cheques were sent to the Forensic Science Laboratory Islamabad wherefrom it is reported that signatures on the backside of the said cheques were similar with his signatures and that prosecution has sufficient incriminating material to connect respondent No.2 with the withdrawals from the fraudulent account maintained by co-accused Nasir Bashir Malik therefore order passed by learned Special Judge is perverse and respondent No.2 being beneficiary and guilty of fraudulent withdrawals of heavy amounts does not deserve concession of bail.
6. It is evident on the record that Account No.371-0111-0 from which allegedly the amounts were withdrawn was a sole proprietorship account in the name of CIBC Work Markets Inc. And CIBC Capital Markets Inc. Maintained by Nasir Bashir Malik co-accused. It is also available on the record that Cheques No.7076501, 7076503, 7076508 and 7076509 were issued by Nasir Bashir Malik in his own favour. The allegation against respondent No.2 is that he had received the amounts of said cheques on behalf of Nasir Bashir Malik co-accused. There is no incriminating material with the prosecution to establish any nexus of respondent No.2 with regard to opening and maintenance of the above said account. Admittedly reports of Forensic Science Laboratory Islamabad were not available with the prosecution at the relevant time i.e. On 11-10-2012 when respondent No.2 was allowed pre-arrest bail by the learned Special Judge. The Investigating Officer has declared respondent No.2 innocent being not beneficiary of the allegedly withdrawn amounts. We do not find any perversity in the impugned bail granting order.
7. Needless to say that consideration for grant of bail and those for its cancellation are entirely different. Ordinarily the ground which are taken into consideration for cancellation of bail are:--
(i) that the applicant has misused the concession of bail and is causing fear and alarm to the complainant and the prosecution witnesses;
(ii) that there is likelihood of witnesses being won over and their evidence being tampered with;
(iii) that there is likelihood of repetition of the commission of the crime which the accused had allegedly committed;
(iv) that the accused was likely to abscond; and
(v) that the order granting the bail was arbitrary, capricious and against the evidence available with the prosecution.
' None of the above mentioned grounds is available to the complainant/petitioner calling for cancellation of bail granted to the respondent No.2. Learned counsel for the petitioner did not allege any misuse of concession of bail by the respondent. Once the bail has been granted on merits by the court of competent jurisdiction, very strong and exceptional circumstances are required to cancel the C same which are not available to the petitioner in this case.. Reliance be made upon Abdul Rasheed Khan v. Zahoor Ahmed Malik and others (PLD 2011 SC 210).
8. Since the petitioner has not been able to point out any solid reason for cancellation of bail therefore this petition having no merit is dismissed in limine.