P L D 1961 (W (PLP)

I. B. KHAMISANI, J.‑--The petitioners have made this appli cation under sections 497 and 498, Cr. P. C. for releasing them on bail before arrest. The petitioners had in the first instance moved an application on 5th November 1960 for bail before arrest before the S. D. M. Old Town, Karachi (Mr. Abrar Hassan Khan). The S. D. M. had released the petitioners on bail on furnishing surety in the sum of Rs. one lakh and one surety in the like amount. The Prosecuting Sub‑Inspector moved an application on 11th November 1960 for cancellation of the bail granted to them. He also prayed that the petitioners should be remanded to custody. The learned S. D. M. passed an order on this application and ordered summons to issue to the surety to be present and also directed the surety to produce the petitioners on 24th November 1960. 'On 24th November 1960 an application on behalf of the petitioners was moved requesting for an adjournment on the ground that the chief counsel of the Petitioners Mr. Tufailali was busy with the Constitution Commission work at Lahore and would not be able to be present in Court for some time. The learned S. D. M. after hearing the arguments of the parties ordered the application for cancellation of bail to be fixed for 28th December 1960. The Prosecuting Sub‑Inspector moved another application on 25th November 1960 requesting the S. D. M. for ante‑dating the application for cancellation of bail of the petitioners. The learned S. D. M. therefore ordered the application for cancellation of bail of the petitioners to be fixed for 3rd December 1960 had directed the summons to issue to the petitioners to be present on that date. The petitioners consequently made this application on the ground, inter alia, that they were advised that the S. D. M. had no jurisdiction to grant bail before arrest as he had no powers under section 498, Cr. P. C. Various grounds were also pressed for an order of release before arrest by the High Court.

2. The petitioners were granted interim bail with notice to the Additional Advocate‑General.

3. The matter was fixed for arguments on 5th December 1960 when the Additional Advocate‑General moved for an adjournment on the ground that he had not been able to get instructions from the police who were investigating the case filed against the petitioners. The matter was consequently fixed for 14th December 1960. The learned Additional Advocate‑General has opposed the application for release of the petitioners on bail before arrest mainly on the grounds that (1) a strong prima facie case has been made out against the petitioners for offences enumerated in the complaint, and (2) that the High Court has no jurisdiction to grant bail before arrest. The learned Additional Advocate‑General stated that the case against the petitioners and Mr. S. M. Jalil had been registered under sections 406, 420 and 468, P. P. C. on the allegations con tained in the first information report which came to be registered on an application made by Mst. Noor Jehan, a film artist, to the Inspector‑General of Police, Karachi. It will be advantageous to reproduce the application which is also the first information report "I am a film artist, and have been working in films for the last 20 or 22 years. During those days I have earned lacs of rupees as compensation and royalty for my songs. My marriage was held in 1942 with Syed Shaukat Hussain Rizvi at Bombay. The said Syed Shaukat Hussain, after the marriage used to have all transactions and film agreements on my behalf, and he used to receive all the moneys which were offered to me by companies. After the Partition of India I accompanied Shaukat Hussain to Karachi and we stayed at Karachi for one or one and a half years. During this time, I bought on 13‑4‑1948 a Kothi No. 234, Survey Sheet G. R. E., situated opposite Church, Garden East, Karachi, known as "Sun‑Shine‑Villa" from Messrs P. T. Alma tida, resident of Karachi. Syed Shaukat Hussain Rizvi, of course, got the registration done on my behalf. After sometime, we both went to Lahore, and gave the `Kothi' to the sisters of Syed Shaukat Hussain Rizvi i.e. Mst. Qaisari Begum and Mst. Abida Begum and their children for residing therein. As their financial condition was not good, I therefore did not ever charge them any rent. After coming to Lahore, my relations with Syed Shaukat Hussain Rizvi got strained, and on 13‑9‑55 Syed Shaukat Hussain Rizvi beat me and turned me and my' female child Zille‑Huma, out of his house. Thereafter, litigation regarding guardianship and divorce began amongst us. The guardianship case was decided in my favour. Syed Shaukat Hussain Rizvi filed an appeal against this decision in the High Court, Lahore, which is still pending. Syed Shaukat Hussain Rizvi had divorced me through his writing dated 5‑5‑

59. I gave registered notices to Mst. Qaiser Begum and Mst. Abida Begum for vacating the `Kothi', but on receiving no reply from their side, I myself came to Karachi and visited them. There I came to know that Syed Shaukat Hussain Rizvi had got the `Kothi' registered in his name by the sale‑deed dated 1‑11‑1958. The said `Kothi' had been transferred to Shaukat Hussain Rizvi. Certified copy of the sale‑deed is enclosed herewith. From the perusal of the copy of this sale -deed it appears that the sale‑deed was registered by the District Registrar, Mr. S. M. Jalil, on 26‑6‑1959. The document was produced for registration before the District Registrar by Syed Shaukat Hussain Rizvi and his real nephew (maternal). In the copy of this sale‑deed it is mentioned that the stamps valuing Rs. 1,498 were purchased by Riaz Ahmad on 1‑11‑1958 at Lahore, and it was written by Muhammad Ramzan, Petition writer, on the same date, and that the sale‑deed was completed through the said Syed Wasi‑ul‑Hassan, and that the said Wasi- ul‑Hassan has been recorded as my General Attorney in the Power of Attorney dated 2‑12‑1958. I have never written any sale‑deed or gift deed or gift‑in‑consideration or any writing of this sort in favour of Syed Shaukat Hussain Rizvi. I never issued General Power of Attorney to Syed Wasi‑ul‑Hassan to the effect that he could transfer the said `Kothi' or my other property to any person. But I had given the special power of attorney to Wasi‑ul‑Hassan at his own request to deal with all matters relating to payment of taxes and such other matters which at times required settlement with the Municipal Corpo ration. I had given this "Mukhtarnama" on repeated requests of Syed Wasi‑ul‑Hassan, because he had told that the people of Municipal Corporation were raising some disputes. The "Mukhtarnama" was got prepared by Syed Wasi‑ul‑Hassan himself. It was written in English. I am not educated in English and have not received any education in some school. I happened to attend a Government function at Karachi on 29th November 1958. During this time i.e. on 2nd December 1958, Syed Wasi‑ul‑Hassan took me with him to an office for attesting the "Mukhtarnama". Now I have come to know that the attestation of this "Mukhtarnama" was made by the said District Registrar Mr. S. M. Jalil. At the time of attestation I was not informed that in what capacity Jalil Sahib was working, Riaz Ahmad clerk of Moulvi Mushtaq Ahmad, Advocate, Lahore, (who was advocate for Shaukat Hussain), has signed the sale‑deed as a witness. Besides, one Muhammad Ibrahim son of Muhammad Ramzan of Gowal Mandi, Lahore, has also signed as a witness and have given date as 1‑11‑58 below his signature. Syed Sadiq Hussain alias Laddan son of Khurshid Hussain, resident of Multan Road, Lahore, has signed as witness No.

3. The above named persons have jointly defrauded me. The aforesaid documents were forged and foisted. I have been intentionally deceived and dishonesty has been done against me. At the time of registration, the District Registrar, Mr. S. M. Jalil, has registered the property without the certificate of the clearance of Income‑tax. The registration was done out of time. Besides this, the registration was not done through the Sub -Registrar. All these facts go to prove that all these persons had‑ made an (sic) and got my `Kothi' transferred to Syed Shaukat Hussain Rizvi with dishonesty, fraud and in contravention of law. I pray that necessary action be taken against them under sections 467, 468, 471, 420 and 409 Pakistan Penal Code and under sections 81 and 82 of the Registration Act."

4. The admitted facts are that a bungalow bearing No. 234, Garden East, was purchased in 1948 and the sale‑deed was executed and registered in favour of Mst. Noor Jehan on 13th April 1948. The bungalow continued to be in the joint occupation of Mst. Noor Jehan and her the then husband Syed Shaukat Hussain for some time. The bungalow thereafter has remained in the occupation of the petitioner Shaukat Hussain through his sisters who are living in it. It is also admitted that on 1st November 1958 Mst. Noor Jehan executed a deed which purports to be a gift deed in favour of her husband Shaukat Hussain. It is also admitted that Mst. Noor Jehan executed a power of General Attorney in favour of Wasi‑ul‑Hassan another petitioner on 2nd December 1958 and the same was registered before the District Registrar at Karachi on the same date. It is alleged that the said gift deed was presented before the District Registrar, Karachi, on 26th June 1959 for Registration by the petitioner Wasi‑ul‑Hassan on behalf of Mst. Noor Jehan. The alleged gift deed was returned to Wasi‑ul‑Hassan for produc ing an Income‑tax Clearance Certificate and he was given one month by the District Registrar to produce the necessary Certificate. The gift deed is said to have been presented again on 29th June 1959 and the same is said to have been registered on that date without the necessary Income‑tax Clearance Certificate having been produced. Mr. Khalid, the learned Additional Advocate‑General has not urged that the alleged gift deed was not executed by Mst. Noor Jehan on 1st November 1958. What he contends is that there are a number of interpolations in the said gift deed and ft is on account of those interpolations that the fraud has been committed on Mst. Noor Jehan and the document has been illegally registered. He also contends that the District Registrar Mr. S. M. Jalil could not register the deed as he could do so within a certain time after the execution of the deed. The time allowed for the registration of the deed having expired he could not do so. He also contends that the District Registrar could not register the document without the production of the Income‑tax Clearance Certificate, The interpolations which according to the learned Additional Advocate‑General have been made in the alleged gift deed are: (a) Writings in the gift deed which showed that the gift deed was being presented on behalf of Mst. Noor Jehan by her attorney Wasi‑ul‑Hassan. (b) That it bears the date 1‑4‑1959 at two `places where the signatures of Shaukat Hussain appear. The learned Additional Advocate‑General, basing his case mainly on the interpolations and on the arguments detailed above, argues that a strong prima facie case is made out against the peti tioners for offences under sections 406, 420 and 468, P. P. C. Whether the interpolations made in the alleged gift deed are such as would make out clearly a case of forgery and consequent cheat ing is a question which is very much arguable. The two places where date 1‑4‑1960 appears are the places where the signatures of the petitioner Shaukat Hussain appear and the signatures and the dates made indicate that the petitioner Shaukat Hussain had accepted the gift deed on that date and. therefore in token of having accepted the gift deed put the date 1‑4‑

60. The interpo lations in respect of Wasi‑ul‑Hassan presenting the document for registration on behalf of Mst. Noor Jehan could be said to have been made by him. I do not want to express my opinion as to what would be the legal position on account, of the said interpo lations but one thing is certain that the position is not quite so clear as it appears to the learned Additional Advocate-General.

5. The question whether the District Registrar was autho rised to register the document and the question whether the docu ment should have been presented before him or before the Sub -Registrar is also an arguable question. The question whether the document could have been presented before the District Registrar without the Income‑tax Clearance Certificate is also debatable. All these questions will be the subject‑matter of decision by the Court before whom the case is challaned. I will therefore not express my opinion one way or the other lest the expression of such an opinion may prejudice the decision in the case.

6. The main question which needs consideration by me is whether the High Court has jurisdiction to grant bail before arrest. The learned Additional Advocate‑Ganeral has placed reliance on the following cases: (1) Emperor v. Abubakar Muhammad Bakhsh Shaikh A I R 1941 Sind 83. (2) Juhar Mal and another v. State A I R 1954 Rajasthan 279. (3) Juma Khan v. State P L D 1960 Pesh. 25. (4) Crown v. Khushi Muhammad P L D 1953 F C

170. It is needless to discuss the cases in A I R 1941 Sind, A I R 1954 Rejasthan and P L D 1960 Pesh. since there is a case decided by the Federal Court in 1953. The question whether bail before arrest could be granted was obviously a controversial question before the decision of the Federal Court was given on the subject. The controversy, however, has been set at rest by the Federal Court in Khushi Muhammad's case. The Federal Court in deciding that case has laid a `yardstick' by which bail before actual arrest of an accused can be granted. That `yardstick' finds expression in the following passage from that ruling; "A person cannot be admitted to bail against whom a report had been lodged at the Police station but who has not been placed in custody, or under any other form of restraint, or against whom no warrant for arrest has been issued. In the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be granted under section 498 if he appears in Court and surrenders himself." The essential question therefore for deciding whether bail before arrest can be granted is to decide whether an accused person is under arrest or under any form of restraint or against whom warrant of arrest has been issued. In view of what has been decided by the Federal Court the question for decision really is whether any steps have been taken by the Court or by the Police to arrest an accused person so that the power vesting in the High Court under section 498 should be exercised. In case where a person is in actual custody the question does not arise as to whether the High Court has jurisdiction to grant bail. The moot question for deciding is whether where a warrant has been issued by the Court or where the steps have been taken by the Police to arrest, B the High Court can grant bail to an accused. Speaking for myself I am clearly of the view that where the Police take steps to arrest a person and have done some overt act in expressing their intention, the position becomes the same as that where a warrant of arrest against an accused person is issued by a Court. In both the cases it becomes clear to the Court that the accused has no chance of evading arrest. When the arrest becomes absolutely evident either by the steps taken by the Court or by the steps taken by the Police, the High Court can come in under section 498 and release an accused person on bail. The idea of releasing an accused on bail in such a case is to remove him, as has been said by the Privy Council, from a greater restraint and put him under a minor restraint. This discretion of the High Court has also to be exer cised sparingly and in deserving cases. What has to be seen is whether a strong prima facie case is not made out if the accused is being arrested with a view to humiliate him or harass him.

7. It is quite clear to me that where there appears material on record indicating that the police is determined to arrest the accused the High Court can release the accused person and the High Court will be doing so quite consistently with what has been held by the Federal Court in Khushi Muhammad's case. A case where there are indications on record that the arrest of an accused is‑inevitable by the Police that case cannot be distinguished from the case where a warrant of arrest has been issued against an accused by a Magistrate. If the High Court does not exercise powers vesting in it under section 498 of releasing accused on bail in such cases, the purpose of the decision in Khushi Muhammad's case will be defeated.

8. In this case what has happened is that the first informa tion report came to be registered on 18th May 1960 through an application made on 18th April 1960. The matter was pending investigation till 5th November 1963 when the petitioners made an application for release on bail before arrest before the S. D. M. The learned Additional Advocate‑General states that the investi gation took so long because the petitioner Shaukat Hussain was out of Pakistan and was not available to the Police for interro gation. After the petitioners were released on bail on 5th November 1960 an application by P. S: I. was moved on 11th November 1960 for cancelling the bail of the petitioners and remanding them to custody. The P. S. I. could not have made this application unless he had the instructions from the police who were incharge of the investigation of the case. The fact that the P. S. I. had asked the Magistrate to cancel the bail and remand the petitioners to custody clearly indicates the intention of the Police to arrest the petitioners and the order of the Magistrate is the only hitch in their way to arrest them. The S. D. M. adjourned the arguments on the application for cancellation of bail from 24th November 1960 to 28th December 1960 on the grounds mentioned in the application made for adjournment. The P. S. I. was a party to that order. The P. S. I however in spite of that order moved another application on 25th November 1960 asking for an earlier date to be fixed for arguments on application for cancella tion of bail. The arguments were consequently ante‑dated and were fixed for 3rd December 1960. Even this application would clearly show that the police were concerned with the arrest of the petitioners.

9. Mr. Khalid, after he had argued this matter, was called to appear before another Bench in another case and while getting permission of this Court to attend that Court he had instructed Mr. A. H. Syed, advocate for the complainant, to handle the case in his absence. Although no notice was issued to the complainant to argue this application before the High Court Mr. A. H. Syed, the learned Advocate for the complainant, came from Lahore and appeared on his own. He was left incharge of this case in absence of the learned Additional Advocate‑General and Mr. A. H. Syed admitted while replying to the arguments of Mr. Junejo, the learned Advocate for the petitioners that the P. S. I. had made an application for cancellation of bail before arrest and remanding the petitioners to custody because the Police wanted to have the petitioners behind the bars or in the alternative wanted to make them available to themselves for arrest as a prima facie case had been established against them. According to him, the Police could not arrest the petitioners because they had been granted bail by the S. D. M. All these circumstances point out irresistibly to one conclusion that the arrest of the petitioners was inevitable if they were not released on bail. In such a case they can be clearly said to have been placed in the position which was on par with the position of an accused against whom a warrant of arrest has been issued by a Court. I therefore consider this case to be most appropriate for exercise of power vested in the High Court under section 498, Cr. P. C. I consequently direct that the peti tioners be released on bail. I have already granted them interim bail in the sum of Rs. 10,000 each with one surety in the like amount. The bail granted to them stands confirmed by this order. In case they are not released on bail they are liable to be humiliated in connection with the case which is belated and in which the investigation has lingered on for considerably along time. The case on the admission of the learned Additional Advocate‑General rests on a registered document and no question of tampering with the evidence can ever arise in a case like this. The Magistrate before whom the challan may be presented can however consider the case on merits if and when an application for cancellation is made before him. K. B. A. Bail confirmed: Order accordingly.