1999 PLP 1163 (MLD)

4. The Director, Anti-Corruption Establishment, N.-W.F.P. Peshawar Vide: his Order No.2017 dated, 1-4-1997 sent the complaint for preliminary inquiry and asked for the report within 15 days. After the receipt of the preliminary inquiry report the Director, Anti-Corruption Establishment, N.-W.F.P. Peshawar Vide: his No.3242, dated 29-5-1997 granted permission for conducting an open inquiry. Resultantly investigations were held by the Anti-Corruption Establishment and it was on 16-9-1997 that the Director, Anti-Corruption Establishment (A.C.E.) accorded permission for the registration of the present case by his Order No.5768. The present case was accordingly registered Vide: F.I.R. No.9, dated 29-3-1997 under section 419/420/109, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1987, in Police Station, Anti-Corruption Establishment, Peshawar, against the accused respondents (Excluding respondent No.3, the State).

5. After the registration of the case the accused respondents approached the Court of Special Judge, Anti-Corruption N.-W.F.P. Peshawar (Mr. Muhammad Nawaz Khan) who by his order dated 11-10-1997 granted them bail before arrest. The operative part of the same is reproduced "The record would show that the Revenue Authorities have already initiated action towards the correction of the above mutation. This mutation had already been entered. The record would further show that the complainant had also brought a Civil suit, wherein Mutation No.4198, the subject-matter of this case, had been challenged. The complainant had himself taken the matter both to the Revenue Court as well as to the Civil Court. Therefore, all the propose enquiry of this case and trial would now be subject to the above findings. The reasons are that it is the Revenue as well as the Civil Court which are the proper forum to adjudicate about the above transaction so for this criminal case is concerned. Here alone criminal aspect of the proceeding with regard to the mutation are being investigated. Considering the above development initiated by the complainant himself and the facts that the investigation of the case is bound to take as usual long time. I, therefore, confirm the ad interim pre-arrest bail granted to the two accused petitioners Faiz Gul and Ghulam Sher. (Sd.) Muhammad Nawaz Khan Special Judge"

6. Dissatisfied with the said order of the Special Judge petitioner Wisal Muhammad, Advocate has moved this Court stating that the Anti-Corruption Judge had acted in haste in granting bail before arrest to the contesting respondents as this was not a case where they could be extended the benefit of pre-arrest bail. According to him the Anti-Corruption Judge had committed grave illegality in granting them bail before arrest, in the circumstances of this case, therefore, the same was liable to be recalled.

7. It may be stated that an application for the adjournment of the case on behalf of Mr. Abdul Latif Khan, Advocate was submitted by one of the accused respondents, Javed ,Ahmad, Patwari, wherein it has been stated that the counsel was suffering from fever and thus unable to attend this Court to argue this petition which may kindly be adjourned. The adjournment application, to my mind, should have been filed a day prior to the fixation of this case which is to be placed before His Lordship, the Chief Justice, for orders. It is not at all proper to submit such applications for the adjournment of the case when the case is called for hearing. The application stands rejected and has been placed file.

8. Mr. Sher Afghan Khattak, Advocate learned counsel for the petitioner, Mr. Khaliquz Zaman, Advocate, learned counsel for accused-respondents and Kh. Azhar Rashid, learned Assistant Advocate-General for the State present and heard. Record Perused.

9. I do not want to enter into the merits of the case because it may not prejudice the mind of the trial Court but am constrained to remark that the perusal of the record would show that respondent No.l (Faiz Gul, Naib Tehsildar) accused respondent No.2. (Ghulam Sher vendee) in Criminal Miscellaneous No.1149 of 1997 and accused-respondent No.1 (Javed Ahmad Patawari) in Criminal Miscellaneous No.1150 of 1997 are, prima facie, connected with the commission of the offence charged with inasmuch as they have transferred the land of a person (Arbab Munawar Khan) who had died two years before the attestation of mutation in question No.4189).

10. In the circumstances, the respondents were not, at all, entitled to the concession of the pre-arrest bail and the Special Judge was not justified in extending the benefit of the same to the accused respondents without first holding that the case registered against the contesting respondents was either frivolous or tainted with malice. He has failed to mention anything about it. The order of the Special Judge is not only arbitrary but is also perverse. The same is therefore, liable to be set aside.

11. This petition is accepted. The impugned order, 'vide: which pre-arrest e bail was granted to the contesting respondents, is set aside/recalled.

12. The accused-respondents are present in the Court. They shall be taken into custody and sent to Jail forthwith. N.H.Q./185/P/ Bail cancelled.