1. ' Applicant Mir Sadiq Ali has moved this application for cancellation of bail granted to respondent No,2. Anis Ahmed Shah in a case which is outcome of F.I.R. No 200 of 1986 of Resale Police Station.
2. ' The said F.I.R. Was registered on receipt of a written complaint from a Senior Civil Judge, Karachi to the effect that an amount of Rs,42,500 was fraudulently withdrawn from the rent deposits in his Court. The said amount was deposited by the tenant of applicant Mir Sadiq Ali in Miscellaneous Rent Case No, 5922 of 1983 (Dawood Sultan v. Fatima Begum). After disclosure of fraudulent withdrawal the matter was reported by Sadiq Ali to the High Court, which ordered an enquiry into the matter. Result of the enquiry revealed that Syed Anis Ahmed Shah (respondent No,2) had fraudulently withdrawn said money. Such complaint was lodged by the Senior Civil Judge.
3. ' After due investigation respondent No,2 was challaned and then his case was transferred to the Court of Additional Sessions Judge Hudood West, Karachi.
4. ' I have heard Mr. Qamar Muhammad Khan, Advocate for the applicant, Mr. K.M. Nadeem, Advocate for the respondent No,2 and Mr. MA.I. Qarni Advocate for the State.
5. ' Prior to this, respondent No,2 moved an application for bail which was rejected by the learned IVth Additional Sessions Judge, Karachi South on 16-4-1987. Thereafter he moved Bail Application No, 695 of 1987 in this Court but the same was not pressed and it was dismissed as withdrawn on 24- 4-1988 by my learned brother Mr. Almandine G. Memon, J. The respondent No,2 again moved fresh bail application before the trial Court on the ground of delay under third proviso below section 497(1), Cr.P.C. The said application was granted under the impugned order, dated 23-7-1988. Hence this application.
6. ' Learned counsel for the applicant argued that although police had registered the case on receiving the complaint of the Senior Civil Judge but in real sense the applicant was the complainant, as he was the first to make the complaint to the Hon'ble Chief Justice of the Sind High Court about the misappropriation of the amount of rent deposited for him and that it was after due enquiry that the responsibility was fixed on respondent No,2 for having fraudulently withdrawn the amount in question. It was added that the trial Court had granted bail only because there was no objection by the A.P.P. Relying on the case of Mirza Hassan Akhtar Beg v. The State 1984 P Cr. L J 3013 learned counsel argued that it was not necessary for him to move the trial Court for cancellation of bail. In the cited case, the view taken was, that if there was a new ground for cancellation of bail the same would first be canvassed before the Court granting the bail. In cited case bail of `Moharrar' of Police Station was cancelled because there were considerably serious allegations of having misappropriated valuable articles like motor-cycle etc. Learned counsel also cited the cases of:-
(i) Saleem Akram v. Muhammad Zakir and another nother 1979 P Cr. L J 972,
(ii) Dur Muhammad v. Bashir and others 1983 P Cr. L J 2053.
(iii) Mst. Sakeena Bibi v. Muhammad Yousuf and others PLD 1980 Kar.
7. 289.
(iv) Manager Muslim Commercial Bank v. M. Aslam Awan 1987 MLD 3346.
(v) Kalati v. Ali Gohar and others 1984 P Cr. L J 523.
8. ' The learned counsel further argued that respondent No,2 was not entitled to the benefit of third proviso below section 497(1), Cr.P.C. Because his case was covered by fourth proviso below section 497(1), Cr.P.C. As he was habitual criminal etc. ' Learned counsel for the respondent No,2 argued that the applicant had no locus standi to move an application for cancellation of bail and that in the case of Muslim Commercial Bank v.
9. Muhammad Aslam Awan the application for cancellation of bail was moved by the injured on the ground that he was given threats by the accused. That in the instant case there was no allegation if the applicant was given any threat by the respondent No,2. It was further argued that the respondent No,2 had statutory right to be released on bail, after remaining in custody for one year and that his case was not covered by fourth proviso below section 497(1), Cr.P.C. Learned counsel cited the cases of:-
(a) Amir v. The State PLD 1972 SC 277.
(b) Abdul Hakeem Khan v. The State 1981 P Cr. L J 607.
(c) Raheem Bux and others v. The State PLD 1986 Kar.
224. (d) Aijaz Ahmed v. Taswa r Hyder 1988 P Cr. L J 1409.
10. ' Learned counsel for the State did not support cancellation of bail.
11. ' Bail was granted to respondent No,2 on the ground of delay under the third proviso of section 497, Cr.P.C. Consequently, it is not necessary to go into merits of the case. It is however, to be determined if case of the respondent No,2 is covered by the fourth proviso below section 497(1), Cr.P.C. In this respect true copies of certain documents were filed by the applicant. These show that respondent No,2 Anis Ahmed is habitual of impersonating himself as an Advocate and of obtaining illegal money from innocent public and that in the year 1975 he was directed by this Court to be prosecuted, for filing some criminal proceedings and for appearing in this Court, although he was not enrolled as an Advocate. Such 'complaint was made in S.H.O. Artillery Maidan P.S. By the Secretary Sind Bar Council. Photocopy of an order passed by this Court in Criminal Miscellaneous Appeal No, 738 of 1975 shows that there were proceedings against respondent No,2 in Court of a Magistrate for the offence under section 59(6) of the Legal Practitioners Act. He moved for abashment of these proceedings. The Court ordered the Secretary Sind and Baluchistan Bar Council to prosecute the respondent No,2 in a competent Court of law. There are certificates by the Karachi Bar Association as well as the High Court Bar Association, Karachi that respondent No,2 was not their member. All this material by itself is not sufficient to attract the provisions contained by 'fourth proviso below section 497(1), Cr.P.C. If the respondent No,2 has committed an offence under section 59(6) of the Legal Practitioners Act he cannot be termed as a desperate or dangerous or hardened criminal.
12. ' Now I deal with the authorities cited by learned counsel for the applicant and mentioned above. In
(i) above it was observed that cancellation of bail was to be moved ordinarily by the State but in a proper case the aggrieved party cannot be prevented from recourse allowed to it by law. In cited case such application was moved by a person injured during the incident of that case; in (ii) above it was observed that a person vitally interested was entitled to move an application for cancellation of bail if he is injured although he is not the complainant. In (iii) above it was observed that there was no impediment of law in respect of moving an application for cancellation of bail by a private party. In this case too the injured complainant was held entitled to move for cancellation of bail; in the instant case the applicant was not injured and this was not an injury case; in (iv) above the accused released on bail extended threats to Manager of the Bank and the witnesses and the bail was cancelled. Applicant did not allege threats by respondent No,2. In (v) above bail was cancelled because the Additional Sessions Judge had granted bail on the ground of sickness of the accused without obtaining medical opinion about the ailment. None of these authorities covers this case.
13. ' Now I discuss the authorities cited above by learned counsel for the respondent No,2. In (a) above it was held that for the purposes of bail, law was not to be stretched in favor of prosecution and that benefit of doubt even at bail stage must go to the accused; In (b) above it was observed that an application for bail may be moved at any time and can be repeated without restriction if the accused continues in jail; In (c) above it was observed that it was right of the accused to be enlarged on bail in accordance with provisions of third proviso of section 497(1), Cr.P.C. In (d) above the material brought on record by the prosecution was very scanty and insufficient to hold the accused to be hardened, desperate and dangerous criminal and in the circumstances interference with the ing bail was declined.
14. ' In the light of the case-law discussed above I am clear in my mind that the respondent No,2 had statutory right to be released on bail and there is not sufficient material on record to bring his case within the four corners of fourth proviso to section 497(1),. Cr.P.C. I, therefore, dismiss this application for cancellation of bail. .