P (PLP)

MAHMOOD KHAN KHAKWANI, J.‑Muhammad Hassan accus ed‑petitioner has been challenged under section 408 Pakistan Penal Code, in two separate cases, involving breach of trust of Rs. 47,375‑13‑9 and Rs. 19,357‑15‑6 respectively, in his capacity as accountant and cashier of the Muslim Trading Company. The cases are at preliminary stages: The bail applications of the petitioner have been rejected by the trial Court and the Sessions Judge Bahawalpur. He has now come to this Court, praying to be let off on bail in both the cases, under section 498/561 Criminal Procedure Code. I have heard the learned counsel on both sides. The principal contention of the learned counsel for the petitioner is that the prosecution cases are mainly built up on documentary evidence purporting to be in the hand‑writing of the petitioner who‑ being in jail is incapacitated to give proper instructions to his legal adviser. My attention was drawn to citation 81 I. C. 956,

957. In that case the following principle was enunciated :‑ Where the whole defence rests on a proper and correct appreciation of the voluminous documentary evidence produced in a case and the bulk of it is wholly unintelligible to the counsel for the accused unless explained by the accused to their counsel frequently, the refusal to release the accused on bail is tantamount to a positive denial of justice. In another case reported in 134 I. C. 491, Mr. Justice Agha Haider, laid down the following rule :‑-- Whether the accused is to remain at large on bail depends in most cases upon the exigencies of the particular case before the Court. In. cases involving the taking of accounts it is desirable that the accused should be given full opportunity of instructing his counsel as regards accounts etc. In this connection it will be useful to quote the following passage from the Code of Criminal Procedure by Boys (Vol. II p. 8.70 3rd Edition) :‑ This is a consideration which is sometime properly given weight. There are cases in which the accused himself is actually the only person who can properly instruct the legal adviser. Generally he cannot afford to bring his legal adviser to jail, and even if he can afford to do so, it amounts to incurring a heavy fine, and again even so, he may not be able to instruct properly without an early opportunity of seeing the exhibits in consultation with his legal advisers. To keep a man in jail in such circumstances is to make him defend himself with one hand tied behind his back. In the event therefore of there being no other imperative counter con siderations it is a plea to which there seems no reason why due weight should not be given according to the circumstances of case. The learned Government Advocate opposed the petition for bail, but when confronted with the above cited rulings, he showed his helplessness to refute the general principle enunci ated therein. He resisted the petition on the only ground that the petitioner if let off on bail would tamper with the prose cution witnesses. The proposition of law is well‑settled and admits of no doubt the circumstances indicating the possibility of tampering with the evidence of the witnesses after the accused is enlarged on bail can be good ground for refusing his release from the judicial lock‑up. The following observa tions by Wazir Hussain, J. in Bishambar Nath v. Emperor (81 I. C. 956) shall throw light on the question under discussion. " The learned counsel for the Crown expressed apprehension in the course of his arguments as to these accused tamper ing with the prosecution evidence. The apprehension will not however be sufficient ground for me to refused bail if I otherwise think that it should be granted. So far these apprehensions are merely chimerical ". In this case the learned Government Advocate did not support his apprehensions with material circumstances. When the possibility of tampering with the prosecution evidence it the result of ill‑defined fear, it cannot hamper the release of an accused person on bail. The granting of bail pre‑supposes the creation of a trust in the accused by the Court that he shall not intimidate or try to win over the prosecution witnesses and if he betrays the trust and thus misuses his liberty he disentitles himself to the privilege so granted. At present there is no material before the Court justifying the apprehension to tamper with the prosecution evidence and therefore the contention of the learned Government Advocate may not stand in the way of granting bail to the petitioner. Again looking into the nature of the cases, it cannot be denied that there is mass of documentary proof which shall be put in evidence by the prose cution. The majority of the entries in the various account books are in the hand‑writing of the petitioner. He alone could explain the same to his legal adviser. It would be impossible for him to instruct his counsel with regard to the nature of his defence from within the prison walls. And, his defence line will have to be constructed no sooner the prosecution has examined a witness. If facilities for imparting his directions as to the line of his defence were not given, it may be tantamount to his ex‑parte condemnation. Hence I have no alternative under the circumstances, but to order his release on bail. If the accused‑petitioner furnishes satisfactory sureties with bail bonds to the value .of sixty‑thousand rupees in each case, be may be let out from the judicial lock‑up. Announced. A. H. Bail granted.