2004 PLP 1537 (MLD)

Through the instant petition the petitioner has sought for his pre-arrest bail in the case F.I.R. No.161 dated 10-5-2003 registered under sections 408/468/471, P.P.C. At Police Station Cantt: Multan.

2. As per contents for F.I.R. Petitioner Muhammad Asif Mushtaq while serving as Assistant Branch Officer in Commercial Union Assurance Company, Multan Branch, has prepared forged documents, pertaining to receipts and disbursement of amount received from different persons in the name of Company and thereby he has misappropriated a large amount i.e. Rs.15,19,792.

3. The petitioner was arrested and thereafter his petition for post-arrest bail was dismissed by the learned Magistrate vide order dated 25-8-2003. His further post-arrest bail was dismissed by the learned Addl: Sessions Judge Multan vide order dated 23-9-2003. Once again the petitioner approached the learned trial Magistrate for grant of his after arrest bail which was accepted and he was admitted to bail vide order dated 17-12-2003 against which the complainant filed the petitioner for cancellation of ed to the petitioner before the learned Sessions Judge which was accepted and ing order dated 17-12-2003 was set aside and the bail was cancelled vide order dated 6-4-2004 and the petitioner was directed to be taken into custody, but the petitioner Asif Mushtaq slipped away from the Court, before the judgment was announced and has now approached this Court for grant of pre-arrest bail through the instant petition.

4. Learned counsel appearing on behalf of the petitioner contends .That while cancelling the ing order learned Addl: Sessions Judge has wrongly held that the trial Magistrate had not taken into consideration the findings of the learned Addl: Sessions Judge. Thepetitioner has approached the learned trial Court on fresh grounds i.e. He was found innocent by the S.P. (Investigation) and the principle that the police findings are not binding on the Courts is not an absolute rule and in an exceptional case the findings of the police can be considered while considering the bail matter. Further submits that challan of the, case has been submitted before the Court, therefore, at this stage bail can only be cancelled in exceptional grounds. Which are not present in this case. Further submits that petitioner is innocent as he has no concern with the receipts, or disbursement of amount as alleged in the F.I.R. As he was not the sole incharge of the Branch which was headed by a Senior Branch Manager who too had authority to deposit the amount, received from the subordinates in the Bank. Lastly submits that the recovery of Rs.20,000 from the petitioner was fake as the same had not been effected from the petitioner and there was an inordinate delay of two months in lodging the F.I.R., which speaks volume with regard to false implication of the petitioner. Learned counsel for the petitioner in support of his argument has relied upon Niamat U'lah v. Zulfiqar Ali and 3 others (1999 PCr.LJ 883) to canvass that when the challan is either complete or ripe for submission in the trial Court, application for cancellation of ed to accused by lower Court may not be accepted. Further relied on Ch. Zulfiqar Ali v. The State (PLD 2002 SC 546) wherein it has been held that inordinate delay in .Disposal of the trial was a good ground recognized by Supreme Court holding the same to be abuse of process of the Court and treating it as sufficient ground for grant of bail. Further relied on Mst. Noor Jehan and another v. The State (2000 PCr.LJ 883) wherein it has been held that provisions of section 497(5), Cr.P.C. Being not at all punitive in nature, strong and exceptional grounds are needed for cancellation of ed by a competent Court. Further relied on Nazir Nadeem v. The State (2002 PCr.LJ 160) wherein it has been held that submission of challan in the Court is not a bar for the grant of bail, but bail cannot be cancelled as it can prejudice the case of either of the parties. Lastly relied upon The State v. Hussain (2002 Karachi 1) wherein it has been held that consideration for grant of bail and for cancellation of the same are altogether different and once bail has been granted by a Court of competent jurisdiction, then strong and exceptional grounds are required for cancellation thereof.

5. Conversely learned counsel for the State assisted by the learnedcounsel for the complainant has strongly opposed the grant of bail on the ground that the petitioner is involved in the embezzlement of huge amount i.e. Rs.15,19,792.00. He was specifically named' and has been found involved during the investigation. An amount of Rs.20,000 has been recovered from him. Petitioner's bail after arrest was dismissed on merits by the learned Magistrate as well as by the learned Additional Sessions Judge. Thereafter on pretext that that one Investigating Officerhas found him not involved, got his post-arrest bail allowed by the learned Magistrate. In this view of matter learned Addl: Sessions Judge has rightly cancelled the bail granted to the petitioner by the Magistrate. Further submits that police has no mala fide to involve the petitioner in this case; that petitioner is playing hide and seek with the Courts, who has been found by all the Investigating Officers to be fully involved in this case. Therefore, there is no ground for his pre-arrest bail.

6. I have heard the learned counsel for the parties and also perused the record carefully. Admittedly the petitioner's post-arrest bail was refused on merits by the trial Magistrate thereafter, again petitioner's post-arrest bail was refused after considering the merits of case in detail by the learned Addl: Sessions Judge. Thereafter instead of further approaching the higher forum for the relief of grant of post-arrest bail, the petitioner preferred again to approach the learned trial Magistrate who vide his order dated 17-12-2003 allowed his post-arrest bail on the ground that according to one of Investigating Officer one Noor Muhammad Shahid had also been found to be involved in this case. Therefore, finding of Senior Police Officer, makes the case of petitioner that of further inquiry. The said order was challenged by the complainant before the learned Sessions Judge Multan who had accepted the petition and set aside the ing order and recalled the bail allowed by the trial Magistrate to the petitioner vide order dated, 6-4-2004. Petitioner who was present in the Court during the arguments had slipped away from the Court and now has approached this Court for grant of pre-arrest bail. The point raised by the learned counsel, that petitioner had approached the learned Magistrate on fresh grounds, i.e., that he was found innocent by the Investigating Officer is totally misconceived. It has been noticed that during re-investigation conducted by the S.P. (Investigation) Multan, it was found that not only the petitioner Asif Mushtaq but also another person namely Rana Noor Ahmad Shahid was involved in the commission of the crime. The said (Investigation) had further directed the DSP (Investigation) to join the said Rana Noor Shahid in the investigation. These findings of the Investigating Officer had totally been misconceived by the trial. Court holding that the petitioner had been found innocent by the Senior Investigating Officer. While granting bail on this sole ground and ignoring the earlier order passed by the learned Addl: Sessions Judge on merits, the learned Magistrate had Committed serious illegality, therefore, order of the learned trial Magistrate was totally illegal and had rightly been set aside by the learned Sessions Judge. Contention of the learned counsel that challan has been submitted. Therefore, bail should not have been cancelled is also of no ground for not interfering with an illegal order passed by the trial Court. The trial Court had not used its A discretion in a proper manner. This case clearly would fall under exception to the said rules and the provisions of section 497(5), Cr.P.C. Had rightly been invoked unhesitatingly by the Addl: Sessions Judge. I have gone through the judgments referred earlier by the learned counsel for the petitioner. The law laid down in all the said judgment is not relevant to the facts of the case in hand. Therefore, not applicable of the case of petitioner. On of other hand while relying on Naseem Malik v. The State (2004 SCMR 283), wherein it has been held by the august Supreme Court that the police findings are not binding on this Court and cannot be made basis for grant of bail and also in Muhammad Musa v. The State (1999 PCr.LJ 1260) wherein it was held that the lower Court while extending the concession of bail to the accused only on the basis of favourable opinion of a Police Officer had not properly exercised the jurisdiction and had acted in violation of the principles of law governing the bail matters. Ed to the accused normally was not interfered with at the stage when the trial was already in progress, but where discretion was not exercised in a proper manner, the case would fall under the exception to the said rule and provisions of S.497(5), Cr.P.C. Could be invoked unhesitatingly. The Petitioner has approached this Court with the prayer for grant of pre-arrest bail which is an extraordinary concession granted only in a particular case where some ones honour is involved, there is a danger of his humiliation in the eye of law or there is glaring mala fide on the part of prosecution but herein the instant petition the case has been adjudicated upon by the lower forum exhaustively. Merits of the case have been discussed thoroughly. Now at this stage to urge that petitioner has been involved in this case falsely and due to mala fide is not available to the petitioner. Therefore, keeping in view the facts and circumstances of this case, I am of the considered view that no case for grant of bail before arrest is made out. Hence this petition is dismissed being without any merits. H.B.T./M-356/L Bail before arrest refused.