STATE ASSOCIATES Versus M/S. FARBEN INDUSTRIAL DEVELOPMENT S.PA.
ORDER
This order will dispose of W.P.No.3304/1990 filed by Mrs. Saeeda Ahsan for the recovery of her husband Muhammad Ahsan from the custody of police as also the bail application (Cr.M. No.1982/B/1990) moved on behalf of Muhammad Ahsan.
Mst. Saeeda Ahsan wife of Muhammad Ahsan filed a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan on 18‑5‑1990 alleging therein that on 17‑5‑1990 at 8‑30 p.m. a police party headed by Amanullah Khan S.P. City, respondent No.2 raided her house, apprehended her husband and took him away without disclosing whether any criminal case was registered against him. Later, the petitioner came to know that the detenu Muhammad Ahsan was being detained at police station, Lower Mall, Lahore. It was averred that Muhammad Ahsan was being detained in illegal custody of the police "for the reason that he by virtue of his official position being the Member of the Pakistan Banking Council, Karachi is duty bound to look after the State Exchequer and detect all misappropriations and defalcations in the State Exchequer. In performance of his duties, the detenu was pursuing the cases against Tajammal Hussain, Chairman, Punjab Bank against whom cases of misappropriation to the extent of over Rs.200 crore are pending in different Courts of law. It was further alleged by the petitioner that her husband was detained in illegal custody at the behest of Punjab Government as it feared that "if the detenu is allowed to perform his official duties in accordance with law, the misdeeds of Tajammal Hussain and other important political figures belonging to the Punjab Government would be brought to the notice of the general public." A prayer was accordingly made that a bailiff of this Court be deputed to recover the detenu from the illegal custody of the police.
2. Petition was presented by the petitioner's counsel before my learned brother Mahmood Ahmad, J, who marked it to me for hearing it on the same day. Petition was accordingly placed before me at my residence the same day viz. 18‑5‑1990 at 3‑30 p.m. In view of the allegations made in the writ petition, 1 directed that a bailiff of this Court be deputed to recover the detenu and produce him before me at my residence at 8‑00 p.m. on the same day. Amanullah Khan S.P. City, respondent No.2 was also directed to appear in person alongwith the bailiff.
3. In pursuance of the aforementioned order, the bailiff produced the detenu before me at 8‑00 p.m. Amanullah Khan S.P. City alongwith Masud Aziz D.S.P., Lower Mall also appeared. Bailiff submitted his report stating therein that the detenu was arrested in a case under section 3/4 P.H.O. registered at police station Lower Mall vide FIR No.74/1990 and Masud Aziz D.S.P‑ was investigating the case. It was also stated that the detenu had been produced before a Magistrate who had remanded him to police custody. According to the bailiff, he was informed by Moharrir that the DSP had taken the detenu to some unknown place but the petitioner informed him 'that the detenu was confined in police station Misri Shah. He then recovered the detenu from Misri Shah police station.
Masud Aziz DSP also stated that the detenu was arrested in the aforementioned criminal case. According to the D.S.P. on 5‑3‑1990, police had recovered 271 k.gs. of heroin from two vehicles, a car and a truck and arrested five occupants of both the vehicles namely Said Ali Shah, Muhammad Hamza, Amin Sher, Faqir Khan all Pathans residents of Tribal area and Qasim Khan also a Pathan of Peshawar District. D.S.P. stated that Hamza and Qasim accused during interrogation disclosed that the heroin recovered from them was to be delivered to Muhammad Ahsan detenu in Karachi who was to further dispose ‑it of later. DSP further stated that he was also informed by these two accused that ten days prior to the occurrence, they had handed over 5 k.gs. of heroin to Muhammad Ahsan by way of sample. DSP stated that he recorded these facts in the Zamini and was also recorded by the Magistrate under section 164, Cr.P.C. DSP was not in possession of the said statement. He quite frankly stated that he had not collected any other material against the detenu till then. It was also disclosed by the DSP that the challan against the five accused apprehended from the spot and mentioned in the F.I.R. had already been submitted in Court on 28‑3‑1990. D.S.P. also stated that he produced the detenu before the Magistrate who remanded him to police custody for seven days. This fact was vehemently denied by the detenu.
4. Learned counsel appearing for the petitioner on 18‑5‑1990 argued that the Magistrate gave the remand mechanically without applying his independent mind to the request made by the police. According to them, it was not conceivable that the detenu would be keeping with him 5 k.gs. of heroin which was allegedly given to him three months ago. It was submitted that the detenu was. a member of the Pakistan Banking Council who in the discharge of his official duties was processing and prosecuting the cases against Mr. Tajammal Hussain who was presently working as Chairman of the Bank of the Punjab. Submission made was that the detenu was falsely involved in the case at the behest of the said Tajammal Hussain with a view to deter him from prosecuting the cases against him. It was also pointed out that Mr. Tajammal Hussain had already filed a civil suit against the detenu personally and some others for the recovery of Rs.15 crores as damages. It was argued that the arrest and detention of the detenu was unlawful and mala fide.
5. After hearing the learned counsel for the petitioner as also the police officers and examining the record, I admitted the writ petition to regular hearing and fixed the case for 20‑5‑1990 with the direction to the office to give notice of this petition to the learned Advocate‑General. Learned counsel appearing for the detenu then presented an application for releasing the detenu on bail. The detenu was admitted to an ad interim bail upto 20‑5‑1990 in the sum of Rs.50,000 with two sureties in the like amount to the satisfaction of the Deputy Registrar (Judicial).
6. On 20‑5‑1990, when the case came up for hearing, learned Advocate General appearing for the respondent took an objection as to the maintainability of the writ petition on the ground that since the detenu has been arrested in a case duly registered with the police and he had also been remanded to the police custody by a Court of competent jurisdiction, his detention could not be said to be unlawful. Reliance was placed on PLD 1979 Lah.
188. Confronted with this position, Raja Muhammad Anwar, Advocate, counsel for the petitioner submitted that he would not press the writ petition and that he would only confine his submissions to the matter of bail. Learned Advocate‑General then contended that since the writ petition stood withdrawn, the bail petition of the detenu be, dismissed and he be directed to approach the learned Sessions Judge in the first instance. Argument of the learned Advocate‑General was that it is an established practice of this Court that it does not directly entertain the applications for bail unless the remedy before the learned Sessions judge is exhausted. In support of his submission, learned Advocate‑General referred to cases reported in PLD 1963 Lah 516, 1971 PCr.LJ 1117, 1979 PCr.LJ Note 7 at p.5 and 1968 PCr.LJ 1940(1). In all these cases, petitions for pre‑arrest bail moved directly in the High Court were dismissed on the short ground that the petitioners had not, in the first instance, taken recourse to the learned Sessions Judge for the grant of bail.
Raja Muhammad Anwar Advocate, on the other hand, contended that there is neither any statutory bar to moving a petition for bail directly in this Court nor the practice relied upon by the learned Advocate‑General uniformly followed by this Court. According to the learned counsel, in appropriate cases this Court has always entertained and adjudicated upon the bail petitions moved directly before it and in some cases, even the habeas corpus petitions were converted ‑ into bail applications and the detenu were allowed bail. To support his submission, learned counsel placed reliance on (1) 1976 SCMR 45, (2) PLD 1975 Lah. 729, (3) PLD 1975 Lah. 1,096 and (4) PLD 1969 Lah. 1020. In the first mentioned case, it was observed by their Lordships of the Supreme Court:
"There is, of course, no statutory bar to an applicant moving the High Court direct for the grant of pre‑arrest bail, there is also no Rule in that but even if there is such a practice it does not appear to be a practice which is uniformly followed by the Lahore High Court.
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In the facts and circumstances of this case, this was an eminently fit case in which the High Court should. have exercised this concurrent jurisdiction without insisting on this practice."
In the second case, Sardar Muhammad Iqbal, CJ. while hearing a habeas corpus petition admitted the detenu to bail when he was produced in the Court. In the third case also, prayer for treating the habeas corpus petition as a bail petition was allowed and the detenu enlarged on bail. In the last mentioned case, Mr. Farooq Bedar, who is now Addl: Advocate‑General, was released on bail in the habeas corpus petition moved by him against his illegal detention.
7. Question as to whether in matters of concurrent jurisdiction, it is necessary to move the lower Court before approaching the High Court was thoroughly examined in all its aspects by Mr. Justice Muhammad Afzal Zullah (as his Lordship then was) in "Sh. Zahoor Ahmad v. The State" (PLD 1974 Lah. 256) which case has been cited by both the sides. His Lordship after surveying the case‑law on the point and taking note of the recent trend followed by this Court expressed the view:‑
"That a petition, relating to any matter in which a lower Court has concurrent or same jurisdiction under the Criminal Procedure Code, shall not ordinarily be entertained directly by this Court. The exceptional circumstances, in. which petitions might directly be entertained in the High Court, would depend upon several factors which might be of general type or those relating to a particular case."
One such factor visualized by the learned Judge may be reproduced in his Lordship's own words:
"Where the High Court has earlier dealt with any matter which has direct relevancy to the subject‑matter of the petition (for bail, revision, etc.) filed in the High Court, the petitioner might not be compelled to first move the lower Court of concurrent jurisdiction."
Now, in the instant case, as noted hereinabove, a constitutional petition for the recovery of the detenu from the custody of the police was filed which I admitted to regular hearing and it was at that stage that an application for releasing the detenu on bail was moved which I entertained. In my view, the pendency of the constitutional petition for habeas corpus constituted an exceptional circumstance justifying departure from the ordinary practice of directing the applicant for bail to move the Sessions Court in the first instance. In this view of the matter, I find no merit in the objection raised by the learned Advocate‑General.
8. On merits, it was submitted by the learned counsel appearing in support of the bail petition that Muhammad Ahsan is a Member of Pakistan Banking Council in Grade M‑1 which is equivalent to Grade‑22. In the discharge of his official duties, he has been prosecuting the disciplinary and criminal cases against Mr. Tajammal Hussain, Chairman, Punjab Bank, for defalcation of huge public money. He has been falsely implicated in the case of drug‑trafficking at the behest of the said Tajammal Hussain. Learned counsel has placed on record affidavit of Muhammad Ahsan wherein it is stated that while he was detained at police station Misri Shah, two persons in civilian clothes accompanied by the SHO asked him as to why he gave an adverse report against Tajammal Hussain and that he was offered to be released immediately if he would assure not to prosecute the matters against Tajammal Hussain or other notables of the Punjab. This affidavit, of course, has been controverted by Amanullah Khan SP, Masud Aziz DSP and Iftikhar Ahmad, S.H.O., Police Station Misri Shah by submitting counter‑affidavits. It is, however, not denied that Muhammad Ahsan is a Member of Pakistan Banking Council and he is prosecuting the cases against Mr. Tajammal Hussain. It was, however, contended by the learned Advocate‑General that there is nothing on the record to support the contention that Mr. Tajammal Hussain was instrumental in implicating the accused/petitioner in the aforementioned criminal case. According to the learned Advocate‑General, it was Hamza accused who had implicated Muhammad Ahsan before the police as also in his confessional statement under section 164, Cr.P.C and Hamza is not shown to have any connection with Mr. Tajammal Hussain.
9. Learned counsel for the petitioner assailed the confessional statement of Hamza accused on the premises that it was recorded 12 days after his arrest and, therefore, it was devoid of any credibility. Learned counsel submitted that such statements recorded even after 2/3 days of the arrest of the accused have been ruled out of consideration. Learned counsel for the accused‑petitioner further contended that the only piece of evidence available with the prosecution implicating the petitioner is the statement of Hamza accused recorded under section 164, Cr.P.C. which statement at best is only a circumstantial evidence against the petitioner as provided under Article 43 of Qanun‑e‑Shahadat. The Trial Court may or may not take it into consideration. Learned counsel argued that the statement in question is a weak type of evidence which cannot form the sole basis of conviction. Learned counsel referred to 1977 SCMR 292 where the only evidence available to connect the appellants therein with the crime consisted of the disclosure made by their two co‑accused who were caught by the Coast Guards at the spot. It was held in the cited case that "the disclosure is obviously not admissible in evidence, and even if these respondents repeat the same information at the trial, it would at best be available for consideration under section 30 of the Evidence Act, but by itself it could not provide a basis for the conviction of the appellants named by the respondents as being concerned in the same transaction."
Learned counsel for the petitioner also sought to argue that the statement of Hamza recorded in the absence of the petitioner and without notice to him and without affording him an opportunity to cross‑examine him cannot be taken into consideration at all. Reliance for this proposition was placed on subsection (1‑A) of section 164, Cr.P.C. and section 265‑J, Cr.P.C. This contention has been vehemently opposed by the learned Advocate General who argued that the statement of Hamza accused recorded under section 164, Cr.P.C. was a confessional statement to which the provisions of subsection (1‑A) of section 164, Cr.P.C. and section 265‑J Cr.P.C. were not attracted. The provisions in question, in the submission of the learned Advocate‑General, apply to the statements of the witnesses. He has further submitted that subsection (1‑A) is only an enabling provision and if the Magistrate does not choose to require the presence of the accused, he does not commit any illegality. Reference was made to the case reported in PLD 1979 SC 38 (page 112 para 140). Contention of the learned Advocate-General, prima facie, appears to be correct. The fact, however, remains that the only piece of evidence which the prosecution has been able to collect so far against the petitioner is the confessional statement of Hamza accused. In reply to my query made on 18th May, 1990 as also on the conclusion of the arguments of the learned counsel for both the sides on 28‑5‑1990, Masood Aziz D.S.P. the Investigating Officer, quite frankly stated that he has not been able to collect any other evidence against the petitioner so far. He, however, stated on 28‑5‑1990 that he would like to investigate regarding the transfer of some property of the petitioner in Islamabad allegedly effected by him in favour of Hamid‑ul‑Hussnain against whom a case was registered in Pakistan in 1985 on the information given by the Government of Norway and he was convicted and sentenced to ten years. I asked the investigating officer as to why he did not investigate in this matter for a period of over two months, he could not give any satisfactory reply.
Mr. Saleem Sahgal, learned counsel appearing for the petitioner also made a grievance that the police failed to comply with rule 26.13 of the Police Rules in so far as it did not inform the Chairman, Banking Council or any other higher officer in the Ministry of Finance that they intend to arrest the petitioner.
10. I have given my anxious consideration to the submissions made by the learned counsel for the parties which I do not wish to comment upon in any detail lest it prejudice the case of either party at the trial. Suffice it to observe for the purpose of this bail petition that since the only piece of evidence available with the prosecution against the petitioner is the confessional statement of Hamza accused recorded under section 164, Cr.P.C. which at the most constitutes circumstantial evidence, it, prima facie, in the absence of any other incriminating material, does not furnish a reasonable ground for believing that the petitioner is guilty of the offence alleged against him. In the circumstances, I am of the view that the petitioner is presently entitled to bail. Interim bail already granted to him is, therefore, confirmed. It is, however, made clear that if and when the prosecution is in a position to collect any other cogent evidence incriminating the petitioner, it shall be open to it to move for) cancellation of his bail.
11. Upshot of the above discussion is that the writ petition stands dismissed as not pressed and the bail application is allowed in the aforesaid terms.
MA.K./S‑97/L Bail confirmed.