1988 P Cr (PLP)

The respondent moved an application for bail before this Court which came up before my learned brother Mr. Abdur Razzak A. Thahim, J. on 23-9-1987 who was pleased to pass the following order:- "The bail application came up for hearing in the morning. Learned A.A.-G. Mr. Syed Sarfraz Ahmed was directed to inform this Court and ascertain whether applicant has been arrested in this case. He appeared at 11-30 a.m. and stated that applicant has not been arrested in this case. Mr. Khalid M. Ishaque submits that this application may be treated as bail before arrest. In these circumstances as the applicant is already present in the Court in other case and has been detained under M.P.O. It is argued that requirement of section 498-A have been fulfilled. This application was placed before me according to Roster on the analogy that this application is after arrest. The difficulty of the learned counsel, in this application was that they were not sure whether applicant was arrested in the present case registered under section 409, P.P.C. Now the position is clear that in my view the pre-arrest bail application will be considered for which this may be placed before the Hon'ble Chief Justice for further orders." Thereafter this application was placed before his Lordships the Chief Justice who was pleased to order that it may be placed before me. That thereafter this application was placed before me and after hearing the learned counsel for the parties, the above application was dismissed with the following observations:- "In view of the above observation of the learned Incharge Sessions Judge and the objections raised by the learned A.A.-G. I am of the considered view that since the application of the applicant was not decided on merits for bail before arrest it will be appropriate for the applicant to move the learned Sessions Judge at the first instance, therefore, this application is not maintainable and is accordingly dismissed." The respondent moved an application for bail before the learned Sessions Judge who again rejected the same on the ground that no affidavit of the applicant was filed vide order, dated 26-10-1987. Thereafter, another application for bail was moved and the learned Sessions Judge East Karachi, was pleased to allow bail to the applicant. The present application has been filed against the above order granting bail to the respondent. I have heard Mr. Abdul Ghafoor, A.A.-G. for the State and Mr. Umer Mehmood Kasuri, learned counsel for the respondent. It was contended by Mr. Abdul Ghafoor Mangi, learned A.A.-G. for the State that previous bail application of the respondent was rejected by the learned Incharge Sessions Judge and, therefore, the present application should have been presented before the same Judge. He has further contended that since it was an application for bail before arrest, the appearance of the applicant was necessary and the learned Sessions Judge had erred in granting bail to the respondent in his absence. That no allegations of mala fides were made in the bail application, and therefore, the order granting bail was unjustified. It was further contended that the respondent had collected millions of rupees from the various people belonging to every walk of life, and the amounts so collected have been applied b.-; the respondent in purchasing of property in his own name. That the applicant was doing bank business without having necessary permission from the State Bank and, therefore, he was liable for offence as alleged. That P.Ws. Zahid Hussain and Mirdad were examined by the police on 10-10-1987 and 19-10-1987 respectively, and according to Zahid Hussain he had paid Rs.50,000 to the respondent while P.W. Mirdad had paid him Rs.30,000 and respondent was neither giving them profits nor returning their amount. That lastly, it was a case of bail after arrest and the learned Judge had erred in granting bail before arrest to the respondent. Mr. Umar Mehmood Kasuri, learned counsel appearing for -the respondent has contended that no one had complained before the C.I.A. that the respondent had failed to give the profits to them or return the amount, and therefore, the action taken against the respondent was mala fide. That of course, the first bail application was rejected by the learned Incharge Sessions Judge but the second application was rejected by Mr. Ghulam Mohammad Rajput, learned Sessions Judge who has allowed the 3rd bail application and, therefore, no illegality was committed by the learned Sessions Judge in allowing bail to the respondent. That no case under section 409, P.P.C. was made out against the respondent, and his prosecution, and taking of cognizance were mala fide, illegal, and without jurisdiction. As far as the first contention of Mr. Abdul Ghafoor Mangi learned A.A.-G. appearing for the State is concerned, the record shows that the first application was rejected on 20-9-1987 by Mr. Mohammad Matin Siddiqui as Incharge Sessions Judge East, Karachi, the second bail application was rejected on 26-10-1987 by Mr. Ghulam Mohammad Rajput, Sessions Judge East, Karachi, as stated by Mr. Umar Mehmood Kasuri, and this fact was not controverted by Mr. Abdul Ghafoor Mangi, the third application was heard by Mr. Ghulam Mohammad Rajput, learned Sessions Judge, Karachi East, and the respondent was allowed bail. From the above facts it is clear that Mr. Mohammad Matin Siddiqui had decided the first bail application as Incharge Sessions Judge East, Karachi, as the Sessions Judge, Karachi East was not available and it was dismissed on the technical ground of affidavit having not been filed in support of application and that it was premature. Mr. Ghulam Mohammad Rajput being the Sessions Judge, he heard and decided the second and third applications and, therefore, the contention of Mr. Abdul Ghafoor Mangi, learned A.A.-G . appearing for the State is untenable. Adverting to the next contention of Mr. Abdul Ghafoor Mangi, learned A.A.-G. appearing for the State, the bail application was moved before the learned Sessions Judge for bail before arrest while the respondent was already under detention in M.P.O. as mentioned in ground No.4 of the present application and confined in Central Prison, Karachi and, therefore, he being already in custody under preventive laws it was for the jail authorities to have produced him before the Court and in any case, the respondent being in custody his presence before the trial Court was not required under the circumstances. Although he was in custody under M.P.O. he was not shown to have been arrested by the Investigating Agency in the present case, and the respondent was apprehending arrest at the hands of C.I.A. Inspector and, therefore, the application was maintainable. As far as the third contention of Mr. Abdul Ghafoor Mangi was concerned, the copy of bail application has not been filed before this Court to show that no allegations of mala fides were made in the application, however, it was argued by the learned counsel appearing for the respondent that the allegations of mala fides were made in the application and the very fact that none of the persons who had deposited /invested money with the respondent had complained, the prosecution of the respondent, on the face of it was mala fide. That the fact that the offence under section 409, P.P.C. was non-bailable, and the case having been registered against the respondent, the police did not show his arrest although he was in custody under M.P.O. clearly shows that the arrest of respondent was not shown due to mala fides. As regards the next contentions of Mr. Abdul Ghafoor Mangi, it was an admitted position that none had complained against the respondent before the lodging of the report and if the respondent was carrying on banking business without having necessary permission from the State Bank, he could be prosecuted under relevant laws i.e. sections 84, 27-A and 83 of Banking Companies Ordinance. That the learned counsel appearing for the respondent submitted that uptil today, none had complained against the respondent and the alleged P.Ws. namely, Zahid and Mirdad had never approached the respondent for return of their money. He has further contended that on the face of it no case under section 409 was made out, and the proceedings initiated against the respondent were mala fide. The learned Sessions Judge has given cogent reasons for granting bail to the respondent. The discretion having been exercised by the Learned Sessions Judge, this Court will interfere and set aside the order when it comes to the conclusion that the order was arbitrary, perverse or foolish or was not borne out from the material placed before the Court. In the case of Falak Sher and others v. The State 1979 SCMR 103 it was observed by their Lordships of the Supreme Court that:- "Courts below feeling and from perusal of record specifically holding case as one of further inquiry and passing relevant order on such basis, High Court, held, would not be justified to interfere with such order unless such order be perverse, arbitrary, fanciful or not borne out from record." and the order cancelling bail by the High Court was set aside. In view of the above discussion I am of the considered view that no case for cancellation of bail was made out, and the order passed by the learned Sessions Judge does not call for interference. However, looking to the circumstances of the case I would like to increase the amount of surety, to which the learned counsel for the respondent also agreed. Accordingly, I increase the amount of surety from Rs.1,00,000 to Rs.25,00,000 (Rupees twenty-five lacs), and the respondent is directed to furnish surety in the sum of Rs.25,00,000 (Rupees twenty-five lacs) and P.R. Bond in the like amount to the satisfaction of the learned Sessions Judge within fifteen days from today. I further direct the respondent to deposit his passport with the trial Court till further orders. With the above modification, the application is hereby dismissed. However, if any tangible evidence is brought on record against the respondent during the trial, the learned trial Judge will be at liberty to cancel his bail. The observations made by me in this order are of tentative nature, and the trial Judge will proceed with the case uninfluenced by whatever has been said or observed in this order. S.A. /S-192/K Petition dismissed.