1992 PLP 880 (MLD)

Applicant Ch. Muhammad Aslam who was detained in Crime No.228 of 1991, Mithadar P.S. under section 408/420/468/34, P.P.C. was granted bail by A.C.M. Court No.III (South), Karachi on 31‑8‑1991. Complainant Amin Jamil moved an application under subsection (5) of section 497, Cr.P.C. before learned A.C.M. seeking cancellation of bail granted to applicant, but without success. He, therefore, made a similar application before learned Sessions Judge (South), Karachi, who vide order, dated 20‑10‑1991 not only cancelled the bail granted to applicant by A.C.M., Court No.III (South), Karachi, but also remanded him to custody, although no charge‑sheet was submitted against him by that time. It is in these circumstances that the applicant has approached this Court for the grant of bail. On 11‑11‑1991 the applicant was allowed interim bail in the sum of Rs.1,00,000 (Rs. one lac) with P.R. bond in the like amount to the satisfaction of Nazir of this Court and he continues to be on interim bail.

2. I have heard M/s. Shamshad Alam Lari and Gul Zaman Khan, learned counsel for applicant, Mr. M. Ilyas Khan, learned counsel for complainant and Mr. Shoukat H. Zubedi, learned AA.‑G. for State. Mr. Zubedi has raised no objection to the grant of bail to applicant.

3. The offence with which the applicant is charged does not fall within the prohibitory clause of section 497, Cr.P.C. The grant of bail in such a case is a rule, while its refusal should be an exception. The perusal of the F.I.R. and the relevant record makes it clear that it was not a case of exceptional nature. The only fact that the amount so embezzled is sufficiently large, by itself would be no ground for refusing bail. This was in fact the view taken by the Supreme Court in the case of Ijaz Akhtar v. The State reported in 1978 SCMR

64. The well‑known case of Haji Wali Muhammad v. The State reported in 1969 PCr.LJ 561, is the nearest parallel to the present case, wherein it was held that where the charge was short of involving sentence of death or transportation for life, bail should ordinarily be allowed disregarding grounds of seriousness or '1 anti‑social nature of the offence. It may be added that accused in that case was involved in a case of smuggling of gold valued at about Rs. one crore. The case, of Brig (Retd.) Sahib Dad Khan v. The State and 2 others reported in 1977 PCr.LJ 676,.provides a guideline for the exercise of discretion while deciding the hail application in a case of this nature where allegations relating to rendition of accounts and scrutiny of various documents are likely to consume a good deal of time.

4. In recent years the scope of section 497/498, Cr.P.C. in the matter of granting bail to accused has been much widened and as observed by the Supreme Court of India in the case of State of Rajasthan v. Balchand, reported in AIR 1977 SC 2447, the basic rule is bail and not jail, except where there are circumstances suggestive of thwarting the course of justice by the accused.

5. With this settled proposition of law, there was no justification for the learned Sessions Judge to have cancelled the bail granted to applicant by the learned Additional City Magistrate in exercise of his discretionary powers, which cannot be termed as a wrong exercise of the jurisdiction.

6. The perusal of the record also shows that no challan was submitted by S.H.O. Mithadar Police Station against the applicant in respect of this crime, which in fact was sent to Court concerned on 7‑11‑1991. The learned Sessions Judge has, therefore, gone wrong in remanding the applicant to custody on 20‑10‑1991, when there was no charge‑sheet against him. There is ample case law on this point. In the case of Sadiq Ali v. The State reported in PLD 1966 SC 589, the following observations were made:‑‑‑ "The cancellation of the bail by the learned Sessions Judge, therefore, did not entail the consequence that he had to be ordered to be given into police custody, without there being a request in that behalf by the police itself. The proper order to pass in these circumstances was to cancel the ad interim bail, and to leave the appellant to be dealt with by the police, as they thought 6t. He would thus be in no better and no worse position than before he was granted ad interim bail. In these circumstances, therefore, the order, consigning the appellant to police custody, was unwarranted and must be held to be vitiated by lack of jurisdiction."

7. The same view was reiterated in the case of Jamaluddin v. The State reported in 1985 SCMR 1949, wherein following observations were made:‑‑‑ "It has been pointed out by the learned counsel for the petitioner that the learned Judge in the High Court was not justified to order remand of the four accused persons to custody on setting aside the order of trial Court granting bail to them and directing the trial Court to issue non‑bailable warrants against the petitioner. The law in this behalf was declared by this Court in Sadiq Ali v. The State, PLD 1966 SC 589, in which it was held that the cancellation of pre‑arrest bail by the Court, of an accused person who was not in custody and was admitted to interim bail, did not entail the consequence that he had to be ordered to be given into the police custody, without there being request in that behalf by the police itself. It was emphasised by this Court that the proper order to pass in these circumstances was to cancel ad interim bail and to leave the accused person to be dealt with by the police, as they thought fit. An order remanding such an accused person to custody was held to be vitiated by lack of jurisdiction. It follows from this dictum that the Court would also not be competent to place any other restraint upon such accused person on the refusal or cancellation of his bail. Clearly, therefore, the direction for issue of non‑bailable warrants, ipso facto, on the cancellation of bail granted to the petitioner before arrest is unsustainable and not justified."

8. In the cases cited above, the question was of a parallel nature as to whether a Court has the jurisdiction to remand an. accused to custody while refusing pre‑arrest bail to him. In the present case the applicant who was released on bail during the course of investigation could not have been remanded to custody in the absence of challan against him, which quite admittedly was submitted long after his remand by the learned Sessions Judge.

9. For the foregoing reasons, I am of the view that the applicant is entitled to the grant of bail. Accordingly the order, dated 11‑11‑1991, by which interim bail was granted to applicant is confirmed on the same terms and conditions and the bail application is allowed.

10. By a short order, dated 26‑1‑1992 I had granted bail to applicant and this order would furnish the detailed reasons. N.H.Q./M‑1574/K Bail allowed.