2010 PLP 1931 (SCMR)

CH IJAZ AHMED, J.

Vide order dated 26-11-2009 notice was issued to Junaid Toor who had been granted bail before arrest by the High Court vide order dated 9-9-2009 while Shaukat Hayat petitioner was declined bail before arrest. Shaukat Hayat's Criminal Petition No.1325-L of 2009 was dismissed by this Court as well vide order dated 26-11-2009.

2. Learned counsel for the petitioner submits that petitioner was not involved in F.I.R. No. 217 of 2009 dated 18-7-2009 as is evident from the contents of the impugned F.I.R. and the supplementary statement of the complainant dated 12-9-2009. The Investigating Officer had also declared him innocent. Learned counsel for the petitioner alleges mala fide against the Police.

3. The Additional Prosecutor-General submits that Shaukat Hayat was also included in supplementary statement along with the petitioner. The complainant had never requested for deletion of petitioner's name from the F.I.R. He further urges that petitioner named in the F I.R., was also involved in the case in the evidence collected by the Investigating Officer. He further submits that Shaukat Hayat's bail was rejected by this Court on 26-11-2009 but Altaf Hussain, ASI had not arrested him on that date or thereafter, further stated that the prosecution had submitted an application to initiate proceedings against him under sections 87/88 of the Cr.P C. 4. 4: We have given our anxious consideration to the contentions raised by learned counsel for the parties and perused the record.

5. As per order dated 26-11-2009, Junaid Toor petitioner co-accused of Shaukat Hayat had been granted bail by the learned High Court in spite of the fact that his case did not fall within the parameters prescribed by this Court in various pronouncements. Learned High Court had erred in law to grant bail before arrest to the petitioner without adverting to the dictum laid down by this Court in "Murad Khan. v. Fazal-e-Subhan and another" (PLD 1983 SC 82). It is the duty of the Investigating Officer to investigate the matter in a manner to find out the truth by collecting evidence that connects the accused with the offence or otherwise proves innocence of the accused. The investigation must be conducted honestly, justly and fairly in accordance with law without favour to any party. That is the command of the Constitution in terms of Articles 4 and 5 (2) of the Constitution. In the present case, police mala fide allegation appears to be a stock argument. The fact appears to be otherwise as Altaf Hussain, ASI did not arrest Shaukat Hayat on 26-11-2009. Investigation also appears to be lopsided. Junaid Toor petitioner was also declared by him to be innocent without recording the statement of the aggrieved persons and complainant side. Prima facie the circumstances of this case clearly depict that the Investigating Agency had not conducted the investigation in accordance with law. It is a settled principle of law that when the allegation of mala fide of police involving an accused appears to be unreasonable and false, this Court enjoys the power to recall the bail. See "Murad Khan. v. Fazal-e-Subhan and another PLD 1983 SC

82. It is pertinent to record A that name of petitioner is specifically stated in the F.I.R. and had not been deleted by the complainant in his supplementary statement recorded later. The examinee students appear to have been defrauded and their examination fee been embezzled.

6. In view of what has been discussed above, the bail granted to the Junaid Toor is recalled.

7. Let a copy of this order be sent to Inspector-General Police, who is directed to entrust the investigation to an honest officer who shall investigate the matter fairly without being influenced by any party. Altaf Hussain, ASI shall not be entrusted any work till he has arrested Shaukat Hayat accused. It is pertinent to note that in the connected F.I.R. No.16 of 2009, Rs. 4,48,000 had been recovered while in this case, the investigating Officer has not recovered even a single penny till date.

8. The aforesaid observations are only tentative in nature. In case the petitioner files after arrest bail petition, the Courts shall not be influenced by the aforesaid observations. N.H.Q./S-1/SC Bail cancelled.