' Respondent No,2, had sold 1993 Model Datsun Pick-up, Registration No, DR-7616, to Gul Haram, Gul Anbar Khan and the petitioner for Rs,6,85,000 in January/February, 1996. Respondent No,2 was paid Rs,1,00,000 (one lac) in cash on the same day and it was agreed that the rest of the amount shall be paid in two instalments. The first instalment (Rs,1,50,000) was to be paid after 20 days from the date of the sale whereas the second instalment (Rs,4,35,000) was to be made after seven months.
Since the first instalment was not paid, therefore, respondent No,2 went to Gul Haram and demanded that the amount be paid to him. Gul Haram informed respondent No,2 that the Datsun Pick-up had been taken away by Gul Anbar and the petitioner and that he should contact them and get the remaining amount. Since the amount was not paid to respondent No,2, therefore, he reported the matter to the police as a result of which the present case was registered vide F.I.R.
No,112 on 23-41996 under section 406/419/420/468/471, P.P.C. In Police Station, Khal against Gul Haram, Gul Anbar and the petitioner.
2. The petitioner was arrested. He applied for bail and was released on bail by the Illaqa Qazi, vide his order, dated 21-3-1997.
3. Respondent No,2 filed bail cancellation application in the Court of Additional Sessions Judge (Izafi Zila Qazi) who wide his order, dated 23-5-1997, accepted the bail cancellation application and cancelled the bail granted to the petitioner. Hence this petition.
4. Qazi Zakiuddin, Advocate, learned counsel for the petitioner, Mr. Ziaur Rehman, Assistant Advocate-General for the State and Mian ljaz Younas Advocate, learned counsel for the complainant present and heard. Record of the case perused carefully.
5. The learned counsel for the petitioner, at the out-set, stated that the order of the Additional Sessions Judge/Izafi Zila Qazi is not only arbitrary but is also perverse inasmuch as he had, by his order dated 20-5-1996, granted pre-arrest bail to one of the co-accused namely, Gul Anbar. He stated that keeping in view of the principle of consistency in granting bail, the Additional Sessions Judge (Izafi Zila Qazi) should not have cancelled the bail granted to the petitioner, in the circumstances. He contended that the matter in dispute is essentially of civil nature and respondent No 2 instead of resorting to the criminal proceedings, should have filed a civil suit for the recovery of the balance amount. According to him the case of the petitioner did not fall under the prohibitory clause of section 497, Cr.P.C. And, therefore, he was rightly granted bail by the Illaqa Qazi and that the Additional Sessions Judge (Izafi Zila Qazi) was not justified in recalling the said order and that the petitioner is entitled to be released on bail.
6 . When confronted with this situation the learned Assistant Advocate- General representing the State frankly conceded and rightly so that in the circumstances the petitioner should not have been charged for having committed an offence punishable under section 406, P.P.C.
7. On examining the facts appearing in the order of the Additional Sessions Judge (Izafi Zila Qazi) as well as the other record and without dilating upon the merits of the case at this stage. I am of the considered view that these conditions laid down in section 497, Cr.P.C. For refusing bail have not been fulfilled in this case. Besides, the fact that co-accused has already been granted pre- arrest bail by the said Additional Sessions Judge (Izafi Zila Qazi), cannot be lost sight of.
8. This bail petition is accordingly accepted. The petitioner shall be released forthwith, if not required in any other case, provided he deposits Rs,25,000 as bail money in this Court.