1987 PLP 1714 (MLD)

"Please return the amount of Rs.5,34,04,218/- but not later than 13th instant." the vendors sent the following reply:- "However, if the following proposals are accepted the undersigned will be in position to refund the amount of Rs.5,34,04,218/-: (1) Deliver the possession of land to the undersigned with the authority to sell the same as industrial plots. (2) And execute the registered sale-deeds to the prospective buyers. However, the amount so collected shall be deposited with you as and when received by the undersigned, but anyhow the refund will be completed within one year." The aforesaid reply was conveyed to the Government through its Secretary, Industries and Mineral Development. The Secretary was informed that efforts shall be made to implement the decision of the Government dated 6-10-1986. Thereafter, the petitioner wrote the following D.O. on 18-11-1986 to Mr. Hafeezullah Ishaq, the then Secretary, Government of the Punjab, Industries & Mineral Development Department: "Subject:--Faisalabad Industrial Estate II Dear Mr. Intensive negotiations have continued with the vendors of the land of Small Industries Estate-II, Faisalabad. A fresh proposal for the carrying out of the Government Directive for 4nnulment and recovery of money has been worked out which is as follows: (1) 50$ of the sale price to be deposited by the vendors with the PSIC within 10 days of the communication of the Government decision; . (ii) The remaining amount to be refunded in 3 equal instalments over a period of 6 months subject to the funishing of bank guarantees.

2. It is requested that these proposals may be approved and Punjab Small Industries Corporation allowed to act upon them immediately. " When all this had been done and refund of the sale price started, the petitioner; was informed that he was to face a departmental inquiry and the Additional Chief Secretary to the Government of the Punjab had been appointed as Inquiry Officer. But instead " that the petitioner was involved in the present case. Learned counsel placed on record sore other documents i show that the petitioner was not involved in the offences as alleged against him. Counsel submitted that the petitioner remained in police custody for two weeks. Nothing was recovered from him. The rest were the usual grounds, which were that the person of the petitioner was not required. He was prepared to furnish bond to the satisfaction of the Court. If released on bail, the petitioner was not likely to abscond. The first argument advanced by the learned Special Public Prosecutor was that it was the petitioner who was the master mind. He cleverly manoeuvred everything. There was documentary evidence to show that the very start was based on fraud i.e., the minutes of the meeting were forged. It was submitted that this is how the ball started rolling. The Special Public Prosecutor further contended that the two attorneys who figure in this transaction, were "set up". The payment was not made to the actual owners but to the attorneys, who were not genuine. It was next contended that actually the bargain was struck at Rs.40,000/- per acre, but it was fictitiously shown to be Rs.2.95 lacs per acre. It was submitted that total amount involved in this transaction comes to about Rs.5 crores. More than half had been recovered. According to the Special Public Prosecutor, this was strong prima facie evidence not only to prove that the case was genuine, but also to show the implication of the petitioner and the other accused in the alleged offence. It was further submitted that even the better half of the petitioner and his father were also involved in the racket. The Special Public Prosecutor contended that in case the petitioner was released on bail the entire prosecution case was likely to be spoiled, as he being an influential person would tamper with the prosecution evidence. The Prosecutor submitted that since there are reasonable grounds to believe that the petitioner is guilty of an offence punishable with imprisonment for life, the Court has no jurisdiction to grant him bail. Reliance was placed on Khalid Rashid and another v. The State P L D 1972 Lah.

729. He further submitted that even the offence be not punishable with imprisonment for life, the conduct of the petitioner is such, i.e. he caused heavy loss to the Pakistan Exchequer that he should not be allowed bail. In this regard he relied on Rana Muhammad Amin alias Muhammad v. The State P L D 1978 Lah.

78. The Special Public Prosecutor has lastly submitted that the challan had been completed and would be submitted in Court as soon as sanction for prosecution was received. Deputy Director, Anti-Corruption Establishment, who assisted the Special Public Prosecutor submitted had a strong case. They were to examine sixty-six witnesses. He submitted that in case the petitioner was allowed bail at this age no further recovery will be made. I have gone through the two judgments cited by Special Public Prosecutor. The dictum laid down in a criminal case is not to be applied as a rule in other cases. It is a broad principle and must be applied keeping in view the facts of each, case. The scope such is limited. Similarly, it is not expected from a Court to make any observation with regard to the merits of the case at the bail stage. That can result in prejudicing the case of either side. This was the observation made by the Honourable Supreme Court in Gulzar Hussain Shah v. Ghulam Murtaza and 4 others P L D 1970 S C

335. In the case of Ch. Abdul Malik v. The State P L D 1968 S C 349 it was observed: The first is that bail should never be withheld as a punishment In cases of non-bailable offences coming before the Courts, grant of bail is a relief resting primarily in the discretion of the Courts to be exercised with due care and caution as a fundamental incident of exercise of judicial powers, taking into consideration the facts and circumstances of each case. Orders or, bail application should not be considered as routine orders. Involving as they do the liberties of the citizens, they must be carefully balanced weighed in the scales of justice and 'he requirement of the relevant law, as contained in sections 496-498 of the Cr.P.C:" It is, therefore, obvious that the bail is a matter of discretion. The word "discretion" has a vast connotation. In Stroud's Judicial Dictionary, Vo1.I, Edition 1952, it has been defined with reference to the context. The word has also been the subject-matter of discussion in many cases, both civil as well as criminal. In Re: Taylor, 4 Ch.D 157 at page 159, Jessel, M.R. observed: When I say "the discretionary power of the Judge", I mean that, though the Act of Parliament gave the power in the most ample terms in which language could express it, "if he should see fit" or, as the recent Act expresses it, "if the Court shall deem proper, or shall direct" yet, of course, like every other power given to a Judge, the discretion of the Judge is to be exercised on judicial grounds--not capriciously, but for substantial reasons. In R. v. Wikes, 4 Burr. 2538, Lord Mansfield observed: God forbid that the defendant should not be allowed the benefit of every advantage of every advantage he is entitled to by law! It is to be considered, how he is in custody. After conviction, if he had been present in Court, he might hay- been committed, if not present, he might have been then by a capias. It is, indeed, in the discretion of the Court, to bail a person so circumstanced. But discretion, when applied to a Court o Justice, means sound discretion guided by law. It must b governed by rule, not by humour: it must not be arbitrary, vague, and fanciful; but legal and regular." It is, therefore, essential to take all the relevant factors into consideration. The petitioner remained in police custody. He was subjected to interrogation, the investigation has been completed and the challan is also reported to have been submitted. The trial is likely to commence in the near future. The prosecution is to examine sixty-six witnesses. Moreover, this is a case where the accounts shall have to be checked. The petitioner as such shall have to be by the side of his counsel. As already observed, both sides are relying on number documents. At this stage, I am not inclined to make even a passing reference to those. However, this is clear that the matter calls for further inquiry. Hence, I find no justification to keep the petitioner behind the bars indefinitely. He is accordingly admitted to bail. The next question to be considered is the amount of the bail bond. Normal practice is that the amount must not be excessive, otherwise it would amount to taking away the concession given to and accused, which indirectly would mean refusal of bail. In this case the prosecution has alleged misappropriation running into crores. Hence it is not one of those cases where a nominal amount would be sufficient. I have, therefore, to take into consideration the position of the petitioner, gravity of the offence and the amount involved. Accordingly, I order that the petitioner shall be released on I furnishing bail bond in the sum of rupees 20 lacs (Twenty lacs) with two sureties, each in the like amount, to the satisfaction of the Senior Special Judge, Anti-Corruption, Punjab, Lahore. M.Y.H./N-51/L. Bail granted.