LAL MUHAMMAD KALHORO and others Versus State

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.--- We have heard learned counsel for the parties and have also gone through the order passed by Special Judge, Anti-Corruption (Provincial) Karachi, dated 9-10-2003. Relevant para. therefrom reads as under:--

"Although without collusion of the concerned officials/officers, commission of such big fraud, is difficult, if not impossible, yet from perusal of police papers, there appears no direct evidence collected by the prosecution, connecting the applicants with the alleged forgery, in Revenue Record, or showing their involvement in grabbing of the land in question, fraudulent floating of the said housing scheme, and sale of the plots carved out of the same. The only evidence available on record, in police papers against them consists of vague statements of P.Ws. Ali Nawaz, Mst. Rani, Imran Raza, Abdul Haneef and Mst. Rashida, about their having seen either one or the other of the applicants, in the office of the said firm of the said co-accused persons whenever they visited the same and on query, about their having consoled them about their ownership of the land in question. But they have also not specified the particular dates and the name of any particular applicant. The case against the applicants thus, appears one of further enquiry. They have alleged bona fides. The alleged offences also do not fall within the prohibitory clause of section 497(1), Cr.P.C. The case against the applicants is also based on documentary evidence, which is already in possession of the prosecution. They have also joined the investigation and got their statement recorded before the Investigating Officer. The interim challan has also been already submitted and they are also not required for any investigation. Two co-accused namely, Lal Muhammad and Khalil, against whom also the case is similar, have already been admitted to pre-arrest bail. There is also no prospect of commencement of trial in near future, as still two accused are at large and proceedings under sections 87/88, Cr.P.C. are to be taken against them. Decision by the concerned A.C.C. whether to take departmental action against the applicants or to send them up is likely to take sufficient time, which normally ranges to years."

Besides above order we have also gone through a report submitted by Mr. Abdul Rehman Siddiqui, Assistant City Survey Officer Scheme No.33, City Government, Karachi dated 13-6-2003, perusal whereof indicates that no Government Officer/official is involved in making any forgery, fraud etc., in record, as has been alleged in the F.I.R. lodged by Anti-Corruption Establishment Authority against Revenue Officers/ officials. As far as other material available on record is concerned, it also indicates that learned trial Judge, on having taken into consideration the same, has rightly granted bail before arrest to the petitioners, reasons whereof find mention in the order reproduced hereinabove.

2. Learned counsel appearing for the State, however, contended that as far as private persons are concerned they are in custody, therefore, the petitioners should also approach the trial Court for their bail after arrest.

3. It may be noted that the case of the petitioner is distinguishable from that of the private respondents and, prima facie, we are of the opinion that learned trial Court, on having taken into consideration material available on record had granted them concession of bail before arrest. But learned High Court cancelled their bails without assigning cogent reasons except that during investigation sufficient material has come on record against them. Surprisingly, learned Judge in Chamber of High Court had not referred to a singly word of incriminating evidence against them. In this behalf reference may be made to the case of Imtiaz Ahmed v. State PLD 1997 SC 545 wherein it been held that bail is not to be refused to an accused for the purpose of punishment. Relevant para therefrom reads as under:-- "it is, therefore, quite clear that refusal of bail to a person in a case where he is entitled to its grant as of right, can only be justified on some statutory provision or on grounds strictly relatable to the holding of a just and fair trial. Such refusal cannot be justified on any high principles of ethics or morality. It may be stated here that both under the Anglo-Saxon concept of Criminal Jurisprudence as well as Islamic dispensation of criminal justice, the initial presumption of innocence of an accused charged with a criminal offence is not dislodged until he is proved guilty. Article 9 of the Constitution of Islamic Republic of Pakistan also provides that a person will not be deprived of his life and liberty except in accordance with the law. Therefore, bail cannot be refused in a case by way of punishment."

4. In view of above said facts and circumstances, bail before arrest already granted to the petitioners vide order, dated 7-2-2005 is confirmed on the same terms and conditions. However, they are directed to cooperate with the investigation agency as well as the trial Court so that case may conclude expeditiously.

Petition is converted into appeal and disposed of accordingly.

S.A.K./L-8/SC Bail confirmed.