P L D 1988 Lahore 507 (PLP)

This is an application for grant of pre‑arrest bail to Haji Ghani petitioner, in a case under section 380 P.P.C. and section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, registered at P.S. Manga Mandi, Lahore, vide F.I.R.No.90/87 dated 17‑6‑1987.

2. According to the F.I.R. lodged by Muhammad Arshad Chaudhary, ‑Manager Monoo Industries Ltd., Lahore, goods including T. V. , Video Cassettes, Tape‑recorder, Radio, Shaving Box, Table Lamp, documents and other articles were stolen from his house situated in Lahore on 10‑6‑1987. After the registration of the case, the complainant furnished the list of stolen property including Bearer National Fund Bonds (hereinafter to be referred to as bonds) of Rs.27,14,

500. The investigations revealed that the petitioner had purchased stolen bonds valuing Rs.14,45,000 at Karachi Stock Exchange on 19‑12‑1987. The Punjab Police obtained non‑bailable warrants for the arrest of the petitioner from Illaqa Magistrate and arrested him at Karachi. The petitioner was allowed interim bail by learned Sessions Judge, Karachi (South) with the direction that he will appear in the Court of Session at Lahore for the confirmation of the bail on or before 24‑3‑1988. On 21‑3‑1988, the petitioner moved application for bail before the learned Sessions Judge, Lahore which was entrusted to learned Additional Sessions Judge. The application was ultimately rejected on 7‑4‑1988. The petitioner is said to be at Karachi at the time of the announcement of the order in the bail application by the learned Additional Sessions Judge, Lahore. So he approached Sind High Court, Karachi for protection enabling him to move Lahore High Court, Lahore. The learned Judge directed that he shall not be arrested till 14‑4‑1988, hence this petition.

3. Learned counsel for the petitioner vehemently contended that the petitioner was a bona fide purchaser for value of the alleged stolen bonds without knowing that the same were stolen property; that although the petitioner is prepared to produce bonds before the Investigating Officer yet the police wants to arrest him on the pretext of "Recovery" simply to humiliate and harass him; that the petitioner is a respectable business man and will suffer irreparable insult by means of unjustified arrest. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant vigorously opposed the plea for pre‑arrest bail of the petitioner on the grounds that the petitioner had not appeared before the learned Additional Sessions Judge, Lahore at the time of announcement of the order in his bail application on 7‑4‑1988; that in view of the warning published in 'Pakistan Times' of 9‑7‑1987, daily 'Jang' of 10‑7‑1987 and "Business Recorder" of 10‑7‑1987, notifying the General Public that Bonds carrying, numbers detailed therein were stolen through theft from the house of the complainant, it must be presumed that the petitioner purchased Bonds on 9‑12‑1987 knowing them to be stolen; that the Bonds are yet to be recovered from the petitioner therefore, grant of pre‑arrest bail would frustrate the investigation and that since the petitioner has not been able to show malice of police with him, therefore, the most essential condition for grant of. pre‑arrest bail i.e. mala fide on the part of the police to arrest the accused/petitioner to humiliate him, is missing, and as such, it is not a fit case for anticipatory bail.

4. Doubtless in criminal cases including offences not falling in prohibitory clause of Section 497, Cr.P.C., grant of pre‑arrest bail to an accused is not a rule but an exception. In this regard the Superior Courts have imposed five restrictions from time to time and A important of them all being that not only prima facie good grounds? for bail should be made out but also it should be shown' that intended I arrest of the petitioner/ accused is tainted with ulterior motives to humiliate and harass him. So keeping in mind the pre‑conditions for? grant of anticipatory bail laid down in cases reported as P L D 1949 Lah. 21, P L D 1953 F.C. 120, P L D 1966 S.C. 589, P L D 1974 Lah. 256, 1977 $ C M R 326, 1980 S C M R 269, 1981 S C M R 935 and 1139, P L D 1981 Lah. 599, P L D 1981 S C 9 3, 198 2 S ‑ C M R 3849 P L D 1983 S C 82 and P L D 1984 S C 192, and simultaneously keeping in view that Courts are guardian of the liberty and honour of the citizen against high‑handedness of police and other agencies, I have considered the arguments of the learned counsel for the parties with care. I feel that since the facts of the two criminal cases seldom. coincide, therefore, the restrictions laid down by the Superior Courts in the matter of pre‑arrest bail are not intended to be rigidly adhered to in each and every case. So grant or refusal of bail primarily depends upon the facts and circumstances of each case. In the instant B case, I find that the conditions for grant of pre‑arrest bail are satisfied. The petitioner is Vice‑Chairman, Karachi Stock Exchange. He Js certainly not a thief. Admittedly, there is no evidence that he had stolen Bonds by theft from the house of the complainant. The Bonds being bearer in character were transferable by delivery and are also salable at Stock Exchange. The Bonds could be purchased by individuals and Bodies Corporate. The petitioner purchased Bonds at Stock Exchange for value. There is no direct evidence to show that he purchased the Bonds knowing the same to be stolen ones. C The Bonds have been issued in' denomination of Rs. 500, Rs. 1000, Rs 5000 and Rs. 10,000 and each denomination of different duration bears the same series of numbers. The advertisement of theft of Bonds published in daily newspapers and Business Recorder does not contain the denomination of the Bonds, therefore, the advertisement being incomplete and defective, does not exclude the hypothesis of the innocent purchase of the Bonds by the petitioner without knowing] that the same were stolen property. So there are, prima facie, good grounds for allowing bail to the petitioner. 5.???????? Adverting to the ‑essential condition whether the intended arrest was/is tainted with ulterior motives to humiliate and harass the accused, it is to be noticed that there is no hard and fast rule to establish it because direct or positive evidence to sustain a plea of mala fide on the part of the police is seldom available. In our province it is very easy to get a false case registered at a particular police station but it would be very difficult to prove the mala fide on the part of the police through direct evidence, so inferences have to be drawn from the facts and circumstances which vary from case to case. Primai facie, element of the mala fide of the police in the instant case is evident from the fact that although there was no evidence of the commission of theft of the Bonds against the petitioner yet the police applied for and obtained non‑bailable warrants for his arrest under sections 380 P.P.C. and 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Taking up the apprehension expressed by the learned counsel for the complainant that grant of pre‑arrest bail to the petitioner will frustrate the investigation viz. possible recovery of the stolen Bonds. I will ' like to make it clear that there is no legal compulsion on the Courts to refuse the concession of pre‑arrest bail or post‑arrest bail on the sole ground of "possible recovery" although it may be one of the considerations for the rejection of the bail in a proper case. The petitioner is willing to produce Bonds valuing Rs. 14,45,000 which were purchased by him at Stock' Exchange and also assures to join the investigation as and whet, required by the police. So grant of pre‑arrest bail to the petitioner would not frustrate investigation viz. "recovery", rather it would bet furthering the ends of justice. On the other hand, if the bail is refused and the petitioner is arrested then in such an eventuality, he will suffer irreparable humiliation and injury to his honour', self‑respect, reputation and liberty, inasmuch as, the? conviction of a guilty person ray repair the wrong caused by mistaken grant of bail to him but no satisfactory reparation can be offered to an innocent respectable person for his unjustified arrest, detention and insult, in the event of his acquittal in the long run. The basic idea and the object of the law of pre‑arrest bail is to protect the, liberty and honour of respectable citizen from humiliation at the hand,,;; of the police or any other agency in appropriate cases. Once the Court entertains reasonable doubt about the bona fide of the intended arrest of a citizen then it would be its duty to shield him. For these reasons, I am of the view that this is a proper case in which this Court should come to the rescue of &e petitioner and save him from[ insult and humiliation, by means of unjust arrest. The interim pre‑arrest bail granted to the petitioner on 13‑4‑1988 is accordingly confirmed.

6. The petitioner will produce Bonds valuing Rs. 14,45,000 before the Investigating Officer namely Muhammad Siddiq A.S.I. within 3 days from today. The A.S.I. will prepare the recovery memo in accordance with law. He will immediately deposit Bonds with Illaqa Magistrate who will keep them in safe custody subject to final disposal under section 517, Cr.P.C. The police will conclude investigation within two months from today. In case the petitioner is not challaned to face trial then the Magistrate will return the Bonds to him. Needless to add that observations made in this order are without prejudice to the investigation and judicial proceedings in the main case, if any.?????????????????????????????? M.Y.H./G-150/L???????????????????????????????????????????????????? Interim bail confirmed.