ZAIN-UL-ABEDEEN vs THE STATE

ORDER

' MUHAMMAD SAIR ALI, J.---Leave under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been sought to appeal against order dated 23-6-2009 of Lahore High Court, Lahore declining post-arrest bail to the petitioner who also prays for bail after arrest in F.I.R. No,37 of 2009 registered under sections 420, 468, 471/109, P.P.C. And section 5 of the Prevention of Corruption Act, 1947 at Police Station DACE Punjab, Lahore. Registration of F.I.R. Was as per letter No,PCBL/PS/213 dated 14-1-2009 from Mr. Nazar Muhammad 'Chohan, Chairman Liquidation Board, who alleged that Abdur Rashid son of Fazal Karim of Gujranwala on 19-3-2008 moved an application before the Ex-Chairman Cooperatives Board for Liquidation i,e, Brig (Rtd.) Farooq Maan for issuance of NOC under section 14 of the Punjab Undesirable Cooperative Societies Act, 1993 claiming to have purchased through a sale-deed, property measuring 23 Kanals and 7 Marlas from Defunct CFC (Pasban Cooperatives). This application was considered by Verification Committee on 10-4-2008.

The complainant alleged that NOC was granted against the law, procedure, policy, standard practices and without scrutinizing the record etc. And that the decision of the Verification Committee was illegal, mala fide, collusive and for corrupt reasons, and was thereafter cancelled on 3-1-2009. The direction to recover the possession of land was also made. The proceedings under this F.I.R. Were initiated against thirteen persons i,e, Brig. (R.) Farooq Maan Ex-Chairman, Ch. Imtiaz Ahmed Ex-Secretary, Col. (R.) Mansha Zahid Ex-Additional Secretary, Rana Muzamil Haq Ex- Deputy Secretary, Malik Noor Ahmed Ex-Deputy Secretary, Syed Zain-ui-Aabedin Ex-Deputy Secretary (Petitioner), Malik Mushtaq Ahmed Ex-Legal Consultant, Mian Muhammad Yasin Ex- Executive Incharge, Tariq Ahmed Ex-Executive Incharge, Imaduddin Record Keeper PCFC, S.A. Jafferi of PCFC, Muhammad Asghar Chaudhry, Advocate, (Ahl-Commission) and Abdur Rashid son of Fazal Karim.

2. We have been informed that out of the above persons, only petitioner was arrested on 20-4- 2009 and till date he was in the lock up, firstly under physical remand till 24-4-2009 and thereafter on judicial remand.

3. Petitioner's application for post-arrest bail was dismissed by the learned Senior Special Judge, Anti-Corruption, Lahore vide order dated 5-6-2009.

4. Petitioner then filed Criminal Miscellaneous. No,6643/B/2009 in the Lahore High Court, Lahore for grant of bail after arrest. This petition was dismissed by the learned Single Judge of the Lahore High Court, Lahore through impugned order dated 23-6-2009. Hence this petition for leave to appeal.

5. We have heard Mr.. Ashtar Ausaf Ali, Advocate Supreme Court for the petitioner, Mr. Salim Khan Chechi, Advocate Supreme Court for the complainant, Mr. Shabbir Lali, Additional Prosecutor- General for the State. The prime contentions raised by the learned Advocate Supreme Court for the petitioner are that none of the offences fall within the prohibitory clause and the bail cannot be withheld as punishment. Nothing in the F.I.R. Has been alleged against the petitioner to show this criminal intent or specific role and only general allegations have been levelled. Further that the petitioner neither issued the complained NOC nor was he instrumental therein. Instead the petitioner had raised serious objections before the Verification Committee to the issuance of NOC.

Further that petitioner having been arrested continued to be incarcerated in the lock up till date for a period of about five months. The learned counsel for the complainant and the learned Additional Prosecutor General supported the impugned order declining the bail to the petitioner.

6. We have considered the above submissions and have examined the record.

7. Complaint for registration of the F.I.R. Was submitted by Nazar Muhammad Chohan the present Chairman of the Liquidation Board through letter dated 14-1-2009. F.I.R. Was registered on 9-4-2009 to proceed against the above referred persons including the Ex-Chairman, Ex-Secretary, Ex- Additional Secretary, Ex-Deputy Secretaries, Ex-Legal Consultant, Ex-Executive Incharge, Record Keeper, Muhammad Asghar Chaudhry, Advocate, and the purchaser i,e, Abdur Rashid son of Fazal Karim etc. As per information brought to our notice only petitioner was arrested on 20-4-2009. His physical remand was granted only for four days and thereafter he was sent by the learned Civil Judge/Judicial Magistrate on judicial remand. The learned Additional Prosecutor General, on Court question, stated that the entire record of the purported fraudulent transaction was available with the Liquidation Board and that Investigation could proceed further only on arrest of the other persons. We thus, understand that neither investigation is being actively conducted nor the commencement of trial is in sight. Petitioner has remained incarcerated for a period of four months and twenty-four days in offences which do not fall within the prohibitory clause of section 497, Cr.P.C. In such cases withholding or refusal of bail, in absence of extraordinary circumstances, is an exception. Furthermore, bail cannot be declined as a punishment. It has not been controverter at this stage that in the meeting of the Verification Committee petitioner objected to the grant of NOC. No other accused person except the petitioner has been arrested. We also believe that it is a case of further inquiry to connect the petitioner with the alleged offences.

8. Under the above discussed circumstances, we find the petitioner entitled to post-arrest bail.

Accordingly this petition on acceptance is converted into appeal and allowed. Petitioner is allowed bail subject to furnishing bail bonds in the sum of Rs,3,00,000 with one surety in the like amount to the satisfaction of the trial Court. Copy Dasti.