' Through this petition, the petitioner seeks cancellation of post arrest bail granted to Respondent No, 1 vide order dated 17.06.2014 passed by this Court.
2. Precisely, facts of the case as narrated in the FIR Bearing No, 473/2007 dated 16.11.2007 u/S. 489-F, PPC 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 alter arrest, which was dismissed by the learned Judicial Magistrate vide order dated 06.05.2014. Then, the petitioner preferred bail petition before the learned Sessions Judge (West), Islamabad which too met the same fate vide order dated 17.05.2014. There-after, the petitioner approached this Hon'ble Court for the above purpose. This Court vide order dated 17.06.2014 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 1,,,,Ined 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 17.06.2014 may be cancelled.
5. I have gone through the record and heard the arguments.
6. I have perused the order dated 17.06.2014, 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 FIR i.e, 419, PPC & 489-F, PPC 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 u/S. 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 C were later on withdrawn is also not a sufficient ground for cancellation of bail.
11. Furthermore, the consideration for cancellation of bail is altogether different from the consideration fur 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 principle 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 assessm ent 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 in 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 resulted in miscarriage of justice.
(f) When bail granted by a competent Court for valid and cogent reasons, not open to legitimate exceptions;
(g) When 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 SCM R 299(Rehmat Ullah alias Rehman vs. The State & Another
(b) 1975 SCM R 230 (Karam Din us. Muhammad Ashraf & 2 others)
(c) 2005 SCM R 1291 (National Accountability Bureau vs. Khalid Masood & another)
(d) 2006 SCM R 66 (Suba Khan vs. Muhammad Ajmal & 2 others).
(e) 2008 SCM R 1715 (Muhammad Akram vs. Zahid Wed.& Others)
(f) 2009 SCM R 1202 (Muhammad Azhar us. Dilawar and Another)
(g) 2011 SCM R 815 (Gohar Rehman us. Muhammad Tahir & Another)
14, The upshot of above discussion is that cancellation of bail sought is declined. Consequently, instant criminal miscellaneous is dismissed in limine.